**DISCONTINUED** Restons Letter advising withdrawal of set aside claim

[monk_fish_]

Re: Help with Draft Defense

Anyone out there?????

Anyone?:colbert:

Any Tumbleweed?

Self immolation it is then :target:

[Kati]

Re: Help with Draft Defense

I'm sure you'll get answers MF ... we're just having a busy couple of days (I think) :tinysmile_twink_t2:
[MENTION=55034]nemesis45[/MENTION] and [MENTION=6]Amethyst[/MENTION] are around (and I've tagged them both for you now too)

K x

[monk_fish_]

Re: Help with Draft Defense

I'm sure you'll get answers MF ... we're just having a busy couple of days (I think) :tinysmile_twink_t2:
@nemesis45 and @Amethyst are around (and I've tagged them both for you now too)

K x

Thanks. Nemesis has already been pretty helpful and I think Amethyst might be looking into it. I'm just getting a little jittery.

[nemesis45]

Re: Help with Draft Defense

I think you're pretty well there, the paras need proper numeric indexing, and sort out any points that are repeated, the less the judge has to read the better.

nem

[Amethyst]

Re: Help with Draft Defense

Sorry monkfish, it's a bit manic - just going through this now. It's quite heavy going so give me a while xx
http://www.legalbeagles.info/forums/...292#post514292 is the original thread.

[Amethyst]

Re: Help with Draft Defense

Okay looking into it a bit more, you're on a relisted hearing date for a set aside application - have you been ordered to submit your draft defence before this hearing ?

[Amethyst]

Re: Help with Draft Defense

''proof of posting for the notice of assignment,'' ???


I'm going to move thread to court claim forum - probably why it's been missed so much xx

First step - you have three areas of defence - summarised at the top, which is good, break up the defence so put sub heads

Make sure you use full authorities ie. HFO Capital Ltd v Burney [2011] EW Misc 23 (CC) (30 November 2011) instead of HFO Capital Ltd vs MR Burney [2011] - now that is county court so is only persuasive so you need to say that. Also ensure you have copies of authorities with paras highlighted on your copy for the hearing

The Assignment
1.
2.
3.

The Default Notice
4.
5.
6.

etc

[monk_fish_]

Re: Help with Draft Defense

Thanks for the constructive help guys, I'll have a play with the draft.

Isn't proof of posting reqiured for NOA when it's a Legal Assignment?

No order to submit draft defense. Though I listed some preliminary grounds for defense in the first hearing as part of a jumbled up witness statement.

The judge gave claimant 30 days to respond, since this was a late submission. They never bothered, and I have requested the re-listing.

Any thoughts on the point about assignment before defaulting? I think at the very least it creates an unfair relationship...since the DCA cannot ever perform the complete function of the credit card issuer. Some of the 'duties' of course ...but not all. I know it's a grey area but I just need to convince the judge i have enough of an argument to warrant a trial. I am desperate to get rid of the CCJ, if the claimant goes for a second judgment, at least I can negotiate.

[nemesis45]

Re: Help with Draft Defense

NOA by normal post from creditor/ debt purchaser or both is ok, the sender will annotate the debtors file with the date the NOA was sent.
I in response to your PM slimming down helps to save time and makes for easier understanding.

nem

[monk_fish_]

Re: Help with Draft Defense

Can an Equitable Assignee issue a DN, or would it have to be the OC?

[nemesis45]

Re: Help with Draft Defense

The default is the Original Creditor responsibility.

nem

[monk_fish_]

Re: Help with Draft Defense

Thanks, I figured as much. OC sent a letter saying they could not locate the DN but it would have been sent by Moocroft....whish is B.S because Moorcrot was only an equitable Assignee...befor the debt was eventually "sold" to another DCA.

[monk_fish_]

Re: Help with Draft Defense

Confirmation that a equitable assignee cannot issue a default notice....and that it would be the OC's legal resposibility. ......???? Does evryone concur with Nemesis on this?

[mystery1]

Re: Help with Draft Defense

I don't see why they can't personally.

http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html

In my judgment the reason for the reference to "duties" in section 189 is that an assignee only becomes the "creditor" where the statutory duties relevant to the enforcement of the creditor's rights have passed to the assignee. This will not be the case where there has been an equitable assignment of which no notice has been given. In such a case the debtor will remain legally liable to the assignor and the assignor will remain responsible for the performance of the statutory duties relating to enforcement, such as duties to provide information and notices.

However although in cases of an equitable assignment it is not the duty of the assignee to issue a default notice i can see nothing in the act or the 1983 default regulations which stop an equitable assignee doing it on the creditors behalf provided, as always, it contains the prescribed information.

M1

[monk_fish_]

Re: Help with Draft Defense

SET ASIDE GRANTED!!!:tinysmile_twink_t2:

MAny thanks to ALL for the help.

Judge was only interested in the lack of a default notice. There was no record one was issued. I got a letter from Nationwide to confirm this. That saved my bacon.

I am aware the Claimant may issue a fresh notice. But my credit file is FIXED..:tung:..and i can at least haggle for settlement.

Judge gave me a week to ammend my draft defence. She told me to dis-regard aspects those issues of unenforceabilty and assignment...and stick to the DN.


Now what?