Lowell court of appeal

[Roy Clayton]

Hi folks

I urgently require assistance with Lowell Portfolio in preparation for an appeal end of November 2012. I may need help later on court procedure and Civil Procedural Rules, but for now help on absolute assignment would help. The assignment is most deffinately invalid, but I need help identifying which of the many arguements I should pursue.

Briefly I had a mobile phone agreement with Hutchinson 3g in 2006. I got into a dispute with them in October 2006 over incorrect billing. Basically Indian Contact Centres were caught selling customer's bank and card details to criminal gangs and were exposed on Disaptches (Channel 4). I took the sensible precautionary measure of cancelling my debit card, the details of which the Indian Contact Centre at 3 had. The change of payment method resulted in a late payment and Hutchinson subsequently withdrew my half price rental promotion, effectively doubling my line rental. I disagreed with their right to make unilateral changes I did not realise the could do this or that I had a promotional rate.

After 3 months of complaining I cancelled my contract in January 2007. I got another provider who I have been with ever since without any problems. I invited 3 to take legal action in 2007, but they declined. No contact from them for 2 years and then they sold the account to Lowell without telling me. I later found out that 3 had placed a default on my Experian account in 2007 without telling me. Part 2 my partner took a speaculative call in February 2009 from Red Collections trying to trace me as I had moved in 2008. Lowell now deny the call was made. Lowell changed the default information 3 had placed on my account changing the date and ammount of default.

The most important and relevant fact is that Lowell Portfolio circumvented the assignment process. We all know that they often do this as it is expensive and inconvenient. The first time I saw a NOA was the retrospective ones sent to my MP in 2010. The first NOA I saw was Lowell's hello NOA letter dated
27 January 2009. The claimed to have bought my account 12 September 2008, but later changed this to 25 Sepember 2008. Hutchinson says they sold it
17 October 2008. Their records confirm this.

I made several DPA requests to Hutchinson 3g, but they dont have my paperwork. I have made DPA requests to Lowell and they have deleted all entries relating to the time the NOA was allegedly served. The NOA date later changed to 26 January 2009. Various letters produced over the last two years purporting to be the NOA, all riddled with mistakes showing them to be fakes. I cant get the ICO to take any action against either 3 or Lowell. Not sure what the OFT are doing, but get the impression that they are taking interest.

My questions are;

How do I prove the NOA was not received and if I can does that make the assignment invalid?

In Lowell's fantasy version they confirm they sent both parts of the NOA. One letter with 3 logos, one with Lowell logos on 26 January 2009. How then can they claim effective assignment from 12 September 2012. If the date is wrong then surely again assignment is invalid? Also are they allowed to produce a letter in Leeds with a signature of a 3 director in Glasgow?

I have only in the last few days seen a two page extract of the deeds of assignment. There is no date on the signature page. How can they prove ownership of a claim from 12 September 2012?

Lowell confirm that they sent both parts of the NOA. As the EU Directive had not come into force at 2008/09 should the original creditor not have sent the goodbye letter when they sold the account. If section 136(1) hand of assignor did not happen then assisgnment is equitable and not absolute. Is that a false claim? I have some emails from West Yorkshire Trading Standards and CSA to Lowell which seem to be covering up for Lowell regarding the way they conducted the assignment process.

Lowell have quoted the wrong account number on the Lowell NOA. Its a transposition error, but technically does this render assignment invalid (even if assignment never really happened)?

If Lowell can't show they posted the NOA (because they doctored my DPA request and they failed to comply with the Judge's direction notices under CPR to provide documents) and given that I did not receive the NOA is it not for them to prove it was sent? Lowell say section 196(4) LOP does not apply.

There are no default letters. Hutchinson claim I defaulted 8 July 2007, Lowell claim I defaulted 25 July 2007. Neither can produce any default letters.

Lowell say my account its a service agreement not covered by CCA. They say all they need is the terms and conditions and my phone bills. The terms and conditions at the time May 2006 were ruled unfair by Ofcom so Lowell and Hutchinson will only provide copies of later terms and conditions for 2007/08. My original contract would be long finished before then and they are nothing like the ones I would have agreed. Am I entitled to see the actual ones for 2006 as I want to test them on unfairness in court.

If my contract with 3 was cancelled and this is agreed by the DCA then are they entitled to claim the early termination fee. Does the Asbourne Leisure decision apply here? If the ammount claimed is incorrect is the assignment invalid?

If anyone has any case law and can explain how it is interpreted in this case I would be very grateful. I am particularly confused as to how a service agreement for a mobile phone differs from a credit agreement under CCA. It seems according to Lowell they are under no obligation to provide any information, the original terms, default letters or proof of the NOA being sufficiently served. All I have is retrospective and false copies of assignemnt letters. Surely there must be something in place to protect people from fraudsters?

Thanks in anticipation.

[miliitant]

Re: Lowell court of appeal

Holwell Securities Ltd v Hughes - [1973] 2 All ER 476

Notice of assignment need not be from the creditor, it may be from the assignee.

The key point, is that the notice must be received. S196 LOPA 1925 stipulates two key points in respect of good service

Firstly service is good if served by process server at the last known abode.

Secondly, service is also good if sent by Registered mail and the post is not returned, but per holwell it is only effective when it is received not when it is sent. Hence if service is disputed, then the assignee needs to produce proof of service

so have you acknowledged the assignment with lowell at any time, that is can they prove you received it, if not then they are stuffed under s.196 if the NOA was not sent by recorded post

Thus if it wasnt sent recorded then they will have to rely on you admitting you have it as far as I can see

i believe the consumer credit directive did not become statute until feb this year as well

[Roy Clayton]

Re: Lowell court of appeal

Hi Militant

Many thanks for this. I definately did not received a NOA in January 2009 and I know very well they did not send one. Lowell have deleted all the records for the period they claim to have sent it (a whole year 2009) because if they had complied with my SAR there would be no record of the NOA. Why would your retention policy allow this when there has been three years of ongoing litigation? The first time I saw a copy of the alleged NOA was in 2010 when my MP was sent a copy. I ripped its authenticity to pieces by exposeing numerous errors.

There were two complaint handlers dealing with my complaints and they sent two different letters both claiming to be a NOA issued in 2009. However the letters were entirely different and they could never explain this. After all why would Andrew Bartle send letters on two consecutive days? Stephen Hunter stated in court that the NOA does not have to comply with section 196(4) that was just for mortgages.

The CSA actually queried whether part 1 of the NOA should have come from 3G Hutchinson, but in an email inadvertantly disclosed by Lowell, the CSA asked Lowells permission to tell me that Lowell were issueing both parts by agreement with 3G. They queried whether that should be public knowledge. West Yorkshire TS also asked Lowell why 3G had not sent the goodbye letter, but also said they would not cover that aspect of my complaint. What a cover up by the alleged regulators!!The EU Directive talks of clarity. Hutchinson 3g actually lied to me. They said in a letter that they could not provide the NOA because it was computer generated and could not be reproduced. It was only later that Lowell exposed the lie by confirming they issue both parts. In this case they did not issue any parts, but its all a bit dishonest. I have the letter to show the Judge and the CSA and West Yorkshire emails.

[miliitant]

Re: Lowell court of appeal

if lowell have no recorded delivery record of the assignment being delievered as to 196 lop 1925, then their is no assignment in law and lowell cant take you to court
this account is to old to be covered by the EU directive which is to your advantage

[Roy Clayton]

Re: Lowell court of appeal

Don't want to put all my eggs in one basket or look like I am exploiting legal loopholes facts are that at the start of this there is a legitimate dispute between myself and the original creditor 3 mobile and they did not have the nuts to test their case in court in 2007. The cowardly custards put a default on my file without telling me and after two years of no contact sold Lowell a floppy disc with 40,000 accounts. The terms and conditions May 2006 were looked at by Ofcom and found to be unfair. Ofcom said they gave consumers no statutory right to end their contract. There were unfair terms hiden in small print. Font size 6 and that when it came to assignment to third parties consumers were insufficiently protected.
I cancelled my agreement in January 2007 because 3 changed the terms and doubled my bills. I gave them fair warning they were in breach and I would leave if they did not stick to the agreement.
My question is if I had cancelled, does thus not rescind any assignment clause. Hutchison could pursue for damages if foolish enough, but what rights have Lowell. Does anyone know my position under Novation and Privacy.
Cheers
Roy

[miliitant]

Re: Lowell court of appeal

NOVATION

now that has me thinking

as to assignments under the lop act 1925

novation i believe is creating a whole new contract, or replacing a party to an agreement

as to debt transfer as to lop 1925, the deed of assignment is the legal instrament to execute the sale

i believe you are thinking of novation and a tri partite agreement. that is, the assignor,asignee, and the debtor need to sign the novation agreement

ime afraid you are barking up the wrong tree with that one but please let me know if it is me who has totally misread your post

assignments to a dca is done by the lop 1925 , not novation/agreement

[Roy Clayton]

Re: Lowell court of appeal

Militant
Thanks for clearing this up I am sure your knowledge is better than mine and appreciate your help. I feel that there must be some implications in selling on a service agreement a year after it was cancelled. You can't assign something that does not exist. I can understand if 3 mobile want to chance their ARM but Lowell were not mentioned in the terms and conditions.
It's a bit unfair that a company can compromise your bank details and then gain advantage because you made a late payment. It also seems that there is no regulation

[Roy Clayton]

Re: Lowell court of appeal

Hi Guys

Any advice on validity of NOA?

No date of assignment on Deeds of assignment and only three pages provided, account number incorrect on alleged NOA, Early Termination Fee included in claim(incorrect ammount stated), Claim made from 12 September 2008 but alleged NOA sent January 2009. NOA not issued by hand of assignee and no service by registered post and no evidence of postage. No default notices served as exempt from CCA.

Its a virtual debt??

[Sparkie1723]

Re: Lowell court of appeal

Have a read of the Van Lyn Developements case have n't got the case no at hand but you'll find it if you search

[miliitant]

Re: Lowell court of appeal

Statutory Assignment

The English Supreme Court of Judicature Act 1873 introduced a statutory assignment. S 25(6) of the 1873 Act has now been replaced by s 136 of the Law of Property Act 1925. In simple terms, an assignee of a valid statutory assignment could now sue the debtor in his own name. This is effectual in law to transfer to the assignee from the date of notice of assignment the legal right to a debt or chose in action, all legal and other remedies and the power to give a good discharge for the same without the concurrence of the assignor.

However, to create a statutory assignment, four conditions must first be satisfied, namely (1) the assignment is in respect of a debt or other legal chose in action; (2) the assignment must be in writing under the hand of the assignor; (3) express notice in writing of the assignment must be given to the debtor, trustee or other person from whom the assignor would have been entitled to claim the debt or chose in action; and (4) the assignment must be absolute and not purporting to be by way of charge only. Such an assignment is subject to equities having priority over the assignee, that is, the assignee takes the assignment subject to any defects in the assignor’s title and all other claims the debtor may have against the assignor. The assignment takes effect from the date of receipt of the notice of assignment by the debtor, an exception to the postal rule that acceptance takes effect upon posting. (See Holt v Heatherfield Trust Ltd [1942] 1 All ER 404.)

As regards condition (1), the “debt or other chose in action” must be one that is existing at the time of assignment, albeit the debt is payable later. (Earle v Hemsworth [1928] All ER 602.)

As respects condition (2), the assignment has to be in writing under the hand of the assignor. In other words, if an agent signs the assignment, then this will be ineffective. (Wilson v Wilson 1880 5 Ex D 155.) The assignment must still be one of absolute assignment and not by way of charge.

Condition (3) requires an express notice of assignment in writing to be given to the debtor so that the debtor knows to whom he must now pay the debt. Consent from the debtor to the assignment is not necessary. The date of assignment must also be stated correctly, (Stanley v English Fibres Industries Ltd (1899) 68 LJQB 839) albeit if no date is given at all, the notice is still not defective. (Van Lynn Development Ltd v Pelias Construction Co Ltd [1969] 1 QB 607) The notice will also be bad if the amount of debt has been stated incorrectly. (W F Harrison & Co v Burke [1956] 2 All ER 169.)

Upon receipt of the notice, the debtor must make all payments of the debt to the assignee and not the assignor and if he pays the assignor without the consent of the assignee, he may have to pay the assignee all over again.

Condition (4) is perhaps the most important, that is, the assignment must be absolute and not by way of charge. Generally, the requirements of an absolute assignment are: (1) the assignment must be in respect of the whole and not part of the debt (Jones v Humphreys Ibid.); (2) the assignment must not be conditional and (3) the assignment must not be “by way of charge”.

If the assignment fails to meet the above conditions, then the assignment will be an equitable assignment in which case the assignee has to join the assignor as a co-plaintiff but the assignor is entitled to sue direct.


Holwell Securities Ltd v Hughes - [1973] 2 All ER 476

Notice of assignment need not be from the creditor, it may be from the assignee.

The key point, is that the notice must be received. S196 LOPA 1923 stipulates two key points in respect of good service

Firstly service is good if served by process server at the last known abode.

Secondly, service is also good if sent by Registered mail and the post is not returned, but per holwell it is only effective when it is received not when it is sent. Hence if service is disputed, then the assignee needs to produce proof of service


The contents of a notice, well, there is no statutory requirements as to form, the form requirements are set out in case law

The date if stated must be accurate (harrison v Burke) but if no date is stated then that doesnt matter (van pelias construction)

The amount of the debt must also be acccurate, although that is obiter from Denning MR in Van pelias construction

The notice must convey to the debtor who owns his debt, who he has to pay and the amount of the assignment

[Roy Clayton]

Re: Lowell court of appeal

I like this post its a work of genius I can't see how they can win without a good bung.
Cheers to you both.

[Roy Clayton]

Re: Lowell court of appeal

Hi again

Does anyone out there have any suggestions on how to particularise a harrassment claim? I have quoted the legislation, referred to the legal test for civil remedy, mentioned the dates of letters and warnings given to Lowell to desist. Lowell's Barrister has tried unsuccessfully so far to get the counterclaim dismissed on grounds it was not paricularised. A bit of tit for tat because I alleged their claim was not particularised in the Northampton Bulk Centre. I think they are talking tarrif. I just mentioned similar cases brought against them and compared them, but should I be counting sleepless nights, numbers of grey hairs or just sticking to the begging letters and setting a financial value to each. I am sure they will have another strike out attempt if I dont enhance it. Does anybody have any cases where Lowell have been embarrassed in court. The citation for the Judgement by District Judge Nicholson West London County Court 24 June 2012 would be good as he was scathing of Lowells conduct.

Also this is about non performance by the original creditor 3 mobile after which the contract became untenable, because they refused to stick to the agreement or provide terms to show they could unilaterally change the terms. Bit confused with all the CCA stuff. My credit file states statutory default, but Original Creditor and Lowell state that there is no requirement to serve a Default Notice or letter. How can you respond if no DN? Is the mobile phone account enforeable without one.

Early Termination Fees- Unlawfull or not? If they are then the NOA is incorrectly stated by including them. I am aware of the OFT v Ashbourne Leisure stuff.

Any help on these three points very welcome.

[miliitant]

Re: Lowell court of appeal

I took lowells to court on an unlawful registration of a default with the credit agencies a few years ago

we settled out of court on that one before the brandon case judgement was inn

in your case the case law i can think off of the top of my head is fergusson v british gas

[Roy Clayton]

Re: Lowell court of appeal

Hi Guys
Just looking again at the original dispute with Hutchinson 3G. As I see it Section 136(1) conditions state that the debt must exist to be assigned, an avenue I have not really pursued enough. Should I be argueing that when Hutchinson unilaterally varied the agreement we had by doubling the line rental they were guilty of an "Unconscienable breach of contract". Lowell and 3G dont dispute that I cancelled my contract (service agreement) in January 2007, but seek to enforce the liabilities as though it had continued. In fact they are claiming more than the value of the contract I signed because they are charging double line rental.

Just to recap Indian Call Centres were selling bank details to criminals so I cancelled my card with Mumbai and told them my next payment would be late. (Seems fair enough to me)?. Hutchinson said late payment was a breach on my part (seems pretty unreasonable)? I offer them chance to go back to the original payments or at least give me a copy of the terms and conditions, they decline (unreasonable)? I give them notice of cancellation in writting (fair enough me thinks)? They dont call me, cut me off, refuse to repair phone and flog a lemon to Lowell. Well at least the Lemon will feel at home!!
No default notice, no notice of assignment, no records of postage of NOA. In fact no records of 2009 must have been a bad year for Lowell. Very convenient delete button in that office. Ofcom rule 3G conditions May 2006 unfair. Still cant see what I did wrong at this point except contact Lowell in the first place.
So I say contract unfair due to hidden terms, small print (font 6) and dodgy assignment clause. Contract ripe for selling or non existent? Any useful legislation. I was looking at Unfair Terms in Contract Regulations and Unfair Business Practices Regulations.
What do we think?

[Roy Clayton]

Re: Lowell court of appeal

Well papers in court me v Lowell in three weeks.