Help required with court claim from Link/ ***WON***

[The_Grumlin]

I was served with a calim form from Link Capital last week, and have aknowledge and indicated my intention to fully defend the calim (and move of juristriction). I have sent a request under civil procedures to Link using the template.

 

What I need help with will be the defence in next few week, the particular of the claim are

 

The Defendant(s) are indebeted to the claiment under the terms of a credit agreement dated 08/01/1999, and assigned to the claiment. The agreement is regulated by the comsumer credit at 1974. The agreement provifrf that interest would be payable before and after judgement. The right to proceed for subsequent interest is reserved. Default occurred in payment and the load was called in under S.87

 

The last letter I had from link was a later of notification of "sale of your debt" which was sent around two weeks before the claim form arrived. I don not remeber every receiving a "default notice" from Link at any time.

 

Any advice or help would be appreciated.

[pt2537]

The Defendant(s) are indebeted to the claiment under the terms of a credit agreement dated 08/01/1999, and assigned to the claiment. The agreement is regulated by the comsumer credit at 1974. The agreement provifrf that interest would be payable before and after judgement. The right to proceed for subsequent interest is reserved. Default occurred in payment and the load was called in under S.87

 

Hi There

 

is this their exact particulars of claim? verbatim?

 

can i ask, did you send the CPR request via special delivery NOT recorded?

 

we can surely help you out but it would help to know a little info

 

regards

paul

[The_Grumlin]

That is verbatim.Amount claimed is 2266.21 plus court fee of 75.00.

The figure on the sale of debt is 2164.21.

 

CPR was sent special delivery.

 

The debt is from a loan taken in 1998, I ran in some financal difficulties when I lost my job and was in the middle of a custody battle with my ex. Single parent (male) with two kids, ran up a largish legal bill which I am still paying along with some other debts which are under some sort of control.

[The_Grumlin]

apart from the spelling mistakes i.e. should be "provided"

[pt2537]

Hi

 

well, i nearly fell off my chair when i saw those POCs, i guess they were written by the tea boy or a yts trainee

 

they are appalling and are not sufficiently particularised to comply with the civil procedure rules

 

at this stage all you can do is wait til they reply to the CPR request.

 

right then on to the important stuff

 

have you acknowledged service and the intention to defend?

 

when does your defence need to be filed by?

 

have you ever recieved a default notice

 

have you ever received a notice of assignment for the transfer to the claimant

 

have the informed you of the intention to take legal action

 

as it stands all you can do is defend on the basis that they have failed to disclose a legitimate cause of action.we can help you with the defence writing thats not a problem so try not to worry about this too much at this stage

 

regards

paul

[The_Grumlin]

Acknowledge the service this weekend which mean I assume that I have until around the 25th i.e. 28days, but will check this with the court to get cut off date for defence. I am prepare to fully defend at this stage.

 

I assume the "sale of debt" letter is supposed to be their idea of an letter assignment, which I can scan in tomorrow and upload minus the personal details.

 

To the best of my knowledge I have not received any defualt notice from Link. Surely this would have follow the assignment ?

 

The two letters that I have from Link give not direct threat of legal action as I read them. Just the "we have tried to contact you, etc" and the "sale your of debt"

[pt2537]

you would need to have received a default notice before the creditor can become entitled to demand repayment of an outstanding sum under the CCA 1974

if they haven't sent a default they are in trouble as this would add to the argument in the defence when we get around to writing it

 

i suggest you check your dates with the court to be sure when the defence must be filed with the court as the last thing you want to do is miss any deadlines

 

regards

paul

[The_Grumlin]

Attached, last letter from link before Claim Form came through.

 

Image appear to be limited on upload so have added this as a zip

link_letter.zip

[pt2537]

Hi there, looks pretty standard stuff, all we can do now is wait and see what they send in response to the CPR request

 

then we can take it from there but i must stress that its important a defence is filed before the deadline other wise they can apply for a default judgment

 

regards

paul

[The_Grumlin]

Quick question should Link be ringing my phone now the case has gone to court?

 

An 0292 0858700 number call without leaving a message this evening, whilst I was busy putting the kids to bed. A quick check on the forum confirms it is Link.

[The_Grumlin]

So far no documents and the fourteen days is comming up on monday, just received a letter from "Litigation Department" which basically says they have recieved my CPR request letter and "is receivin attention".

 

What is my next step if nothing turns up in next few days?

[Vulture_Bank]

Attached, last letter from link before Claim Form came through.

 

Image appear to be limited on upload so have added this as a zip

 

 

PT2537 reading the letter of assignment it says benefit :

 

can you please confirm they have used the correct word because i thought benefit related to an equitable assignment

 

and when it is a legal assignmement i thought you took it "warts and all"

 

since it is link taking Grumlin to court it must be a legal assignment

[pt2537]

Hi Vulture Bank

 

it would appear they are intimating that it is an equitable assignment by referring to the benefit

 

my understanding is that it should be an absolute assignment to give link the Right of action with the agreement

 

16. Necessity for assignment to be absolute and not to purport to be by way of charge.

In order that an assignment may be within the Law of Property Act 1925 it must be absolute, and must not purport to be by

way of charge only1.

An assignment which is conditional and not absolute, as, for example, an assignment expressed to be until money advanced is

repaid2, or an assignment of a policy of life insurance authorising the assignee to draw the insurance money in the event of

the assignor predeceasing the assignee3, is not within the Act. An assignment of salary to become due to the assignor under

his employment with third parties is, however, an absolute assignment4.

The existence of a trust in favour of the assignor, whether of the whole debt assigned5 or of the surplus after retainer of a

definite sum by the assignee6, does not prevent the assignment being absolute, if it is absolute in point of form. Likewise a

promise to pay the assignor a sum of money calculated according to the amount received by the assignee as the fruits of the

assignment can have no effect at all on the nature of the assignment if otherwise absolute7.

A document given by way of charge is a document which only gives a right to payment out of a particular fund or property,

and does not absolutely transfer the fund or property8. In order to determine whether an assignment purports to be by way of charge only, all the terms of the instrument must be considered, and, whatever may be the phraseology adopted in some

particular part, the intention must be determined on consideration of the whole9. It is immaterial whether the consideration is

a fixed sum or a current account, nor does it matter that the assignee has obtained a power of attorney and a covenant for

further assurance10. The fact that the assignment is expressed to be by way of security is not by itself sufficient to make it

purport to be by way of charge only11, but such an expression coupled with other circumstances may have that effect12. An

assignment of so much of a future debt as shall be enough to satisfy an uncertain future indebtedness is an assignment by way

of charge only13.

A mortgage in ordinary form which transfers the property with a proviso for redemption and reconveyance is an absolute

assignment within the Act14; and where there is an assignment of a debt, absolute in form but in fact made by way of

security, it will be within the Act, although an equitable right to reassignment on redemption will be implied15. Where,

following the assignment of insurances to the mortgagee, the insurances continue to protect the owner's interests in respect of

any losses and liabilities which he had incurred as mortgagor and owner or as operator of a vessel, the assignment does not

constitute an absolute assignment16.

 

 

 

 

 

 

 

22. Transfer of remedies.

An assignment operating under the Law of Property Act 1925 passes all legal and other remedies for the chose or thing in

action1. The primary result is that the assignee can bring a claim in his own name where previously he could only have sued

in the name of the assignor2; but the assignee can sue in his own name only in cases in which before the Act he could have

sued in the name of the assignor3. He can present a petition in bankruptcy4, but, if he is only a trustee, the beneficial owner, if

not under a disability, must join in the petition5. An assignee, whether legal or equitable, can present a petition for winding up

a company6, but he cannot do so if the assignment purports to be of part of the debt only unless it amounts to an equitable

assignment of that part7. The assignee can prove in liquidation of a company although the debt was assigned after the

assignor had put in a proof8. The assignee of a debt owned by a deceased debtor is entitled, where the executors renounce

probate, to a grant of administration with will annexed9. The assignee of a judgment debt may enforce payment by

proceedings for a third party debt order10, or, it seems, by writ of execution11, or by process to enforce a judgment in the

county court, provided that he complies with the formalities prescribed by the rules of court12; but where the assignor has

obtained judgment against the debtor in the county court, and the goods of the debtor are taken in execution and sold, the

assignee cannot make a claim13 to the proceeds of the sale14. Where a contract is assignable, an arbitration clause is assigned

with the contract15.

A debtor who takes from a third party an assignment of an independent debt owed by his creditor to that third party can set it

off in proceedings brought against him by his creditor16, unless when he takes the assignment he has notice that the claim

against him has been assigned to another17.

 

[pt2537]

So far no documents and the fourteen days is comming up on monday, just received a letter from "Litigation Department" which basically says they have recieved my CPR request letter and "is receivin attention".

 

What is my next step if nothing turns up in next few days?

 

right if nothing comes back we throw a defence in basically saying cant defend as they have failed to sufficiently particularise their claim nor have the supplied the documents they are relying upon as required by part 16 of the CPR.

 

basically we kick em hard in the a$$

[Vulture_Bank]

PT2537 reading the letter of assignment it says benefit :

 

can you please confirm they have used the correct word because i thought benefit related to an equitable assignment

 

and when it is a legal assignmement i thought you took it "warts and all"

 

since it is link taking Grumlin to court it must be a legal assignment

 

 

yes ....... wrong person sueing !!!! :lol::lol:i

 

Assignment of contract: Legal advice - London lawyers explain assignment of contract

 

Term: assignment of contract

1.

Unless a contract provides otherwise, the liabilities and duties under a contract may not be assigned, in contrast to the benefits under a contract which may be assigned without the consent of the other contracting party.

Although most professionally drafted contracts expressly prohibit such assignments, the provisions to prohibiting an assignment of a contract are redundant.

In order to assign the burden of performance under a contract to a third party, the contract must be novated. Novation takes place when all three parties - that is, the current contracting parties and the incoming party who will take on the performance obligations - enter into a contract effectively stating that the outgoing party with a duty of performance will no longer be obliged to perform and the incoming party will take on those performance obligations.

[pt2537]

yeah Halsburys Laws of England seems to confirm this too.

 

ive spoken to my tutor whose a QC albeit not experienced too much with consumer credit but he has said they are Peeing in the wind with this one

 

tehy dont even understand the basics of CPR and which law they are taking the action under so they are fairly clueless bythe seems of it

[Vulture_Bank]

just a very fine point is there a formal difference between liabilities and duties ???

 

Unless a contract provides otherwise, the liabilities and duties under a contract may not be assigned, in contrast to the benefits under a contract which may be assigned without the consent of the other contracting party.

Although most professionally drafted contracts expressly prohibit such assignments, the provisions to prohibiting an assignment of a contract are redundant.

In order to assign the burden of performance under a contract to a third party, the contract must be novated. Novation takes place when all three parties - that is, the current contracting parties and the incoming party who will take on the performance obligations - enter into a contract effectively stating that the outgoing party with a duty of performance will no longer be obliged to perform and the incoming party will take on those performance obligations.

 

looking at terms and conditions from a credit card agreement from well over 10 years ago it says

 

"We may assign any of our rights and/or duties under this agreement and/or any amounts on the Account (whereupon references herin to "we" , "us" and "ou" shall to the extentof the assignment be read and construed as references to the assignee), but the assignment will not affect any rights which you may have against XXXXXXXX or the supplier in respect of the purchase from it of goods or services by use of the card"

 

will start a new thread on this in the morning but it is saying duties assigned only ---- not liabilities ........ so must be equitable ...... so cannot sell the debt on - as "legal assignment" ????

 

now if these phrases existed so long ago and the original terms and conditions cannot be provided then the "unless" bit above could apply ??? meaning no legal assignment ?

[Vulture_Bank]

new thread started on the above

 

http://www.consumeractiongroup.co.uk/forum/general-debt/123771-validity-debt-assignment-re.html#post1284613

[The_Grumlin]

Start drafting a letter to court regarding lack of documents (based on the many versions in the forums), comments or amendments

There is a header with detail of claim number, claiment and defendant as standard, plus atttention of case manager.

-------------------

Dear Sir, or madam,

RE: FAILURE BY CLAIMANT TO PROVIDE INFORMATION

I would like to inform the court of some difficulties that I am experiencing with this claim, which may prevent me filing a fully particularised defence and/or counter claim to this action, and this may consequently frustrate proceedings.

On 3rd December 2007 I sent a request under the Civil Procedure Rules, for the claimant to send me information in respect of account in the claim, that I consider is vital in order to produce a defence and counter claim. I have confirmation of delivery for the request dated 4th December 2007 and have received from the client an acknowledgement of receipt this letter dated 10th of December (but received on the 13th December). To date the claimant has not complied with my request, or to the best of my knowledge attempted to provide this information as requested under Civil Procedure Rules.

I enclose a copy of this letter, and ask that the court consider the matter and take any action it deems appropriate.

Yours Sincerely,

The_Grumlin

ENC – letter requesting disclosure / Copy of Electronic Proof of Delivery.

[The_Grumlin]

I need some help draft a holding defence as Link have not provided any documentation under CPR (supprised not). Have until December 31 to get it by.

 

Is ther any further action that needs to be taken regarding non compliance with the CPR request?

[The_Grumlin]

Just got some document through the post

1.

[The_Grumlin]

Just got some document through the post

1. The credit agrement - look ok plus terms & conditions (may need someone to look at it)

2. Direct debit mandate (?)

3. 2 x Letter from FNB plc for opeing of account

4. Statement of account (with quit a few unlawful charges)

 

Still to provide me with default notice or other requested information i.e. notice of assignment, etc as per CPR request.

 

What is my next step, start a counterclaim for charges?

[The_Grumlin]

Just a quick one ontop of the previous post, just noticed in the letter sent at the start of my thread they refere to GE Money and First national as limited - First National was a PLC?

[The_Grumlin]

Can someone:-| please look the agreement sent ?

 

I need to get into action as I will need to file an amended defence and counter claim by end of next week. From my statements it looks like around £500+ pounds (not including interest:) ) in charges/amendment/ppi (miss sold). Which I belive is contary to condition 9 (b) of the terms and conditions provided.

 

Additionally looking at the statements there are great gaps when no interest has been applied, and in one case interest applied and then removed after a gap of six months. Then the next month a very small amount of interest is applied very strange? At the moment I am back calculating interest rates for recalculation of amount owed minus unlawfull charges.

tac.zip

cca.zip

[pt2537]

Hi There,

 

Sorry for the delay in looking in, i am currently working on a major case so my time is limited

 

i have looked at the agreement, and on the face of it, it looks ok, they would need to provide a default notice as well.

 

i will take a look again in the morning when i have more time,

 

i just wanted to let you know you havent been forgotten about

 

regards

paul