HFC/Restons/Charging Order - ***ORDER REMOVED***WON***

[surfaceagentx20]

Would this be the case even though the agreement document has never been brought to the proceedings?

Yes sir, the rights of the parties are subsumed in the judgment. If there were more rights available to the Claimant one might have expected the Claimant to demand them or waive them. If there were less rights one might reasonably suppose the Defendant would have resisted.

 

x20

[pt2537]

Tinks, have you ever known of an application being made to the court under section 142 and which succeeded, post-judgment?

 

The reason I ask is that surely, post-judgment, the rights of the parties would be subsumed in the judgment, not an agreement upon which by definintion, the court will have already adjudicated.

 

x20

I have had experience of a judgment being set aside and then a declaration being made, but i have to agree with x20 insofar that once judgment is given the "agreement" becomes unenforceable due to the judgment, the only way to over come this would be by setting aside the judgment however that as we all know can be some obstacle

[Satterthwaite]

OK I have had some thoughts on how to approach this in Court on Monday.

 

Just to re cap I allegedly owed HFC so it was HFC using Restons Solicitors that obtained the CCJ by default and then pushed through the Charging Order.

 

So now I have applied for a set aside quoting HFC as the claimants.

In the meantime HFC have sold the debt and their right to MARLIN/PHOENIX.

 

On the 10th September a Judge has made an order that Phoenix be substituted for HFC and I have until the 20th September to apply for a set aside or stay.

 

Now I think that at court on Monday 15th September a representative sent by Mortimer Clarke on behalf of Phoenix is going to try and refute my application.However I do not recognise Phoenix as Claimants my dispute is still with HFC so I will dispute their right to even be in the court never mind speak. (Bear in mind I still have 5 days to decide what I do about them.)

 

As far as I am concerned it is a no show from HFC. We all know that HFC are not bothered because they have written my 14k off against tax. With no paper work ever finding its way to Phoenix because there are none.

I believe I should be allowed to proceed there and then, just as they would if I did not turn up.

 

Obviously that still leaves me trying to argue my case, being acutely aware that my failure to bring an early application is a major hurdle. My argument for that can be further emphasised by the subterfuge around Phoenix and previously HFC. Also at any opportunity I get I will explain how HFC have written off my debt and claimed tax relief. Then they have sold it for as little 1p in the pound to some mysterious offshore company. As well as all the other things they have got wrong. Hopefully this should all be unopposed.

 

I will try to get across that if Phoenix want a CCJ that I will have no problem with them applying for one (As we know there is no chance of that ever happening.) but the current HFC CCJ should be set aside.

 

Is the above a cogent argument or the ramblings of a mad man who has been up all night worrying about Monday?

 

[surfaceagentx20]

Let's get one thing out of the way about that order substituting Phoenix for HFC. Did Mortimer Clarke send to you a notice giving you 'an address for service of documents'? If you have no address for service the order is horsesh*t for failing to too.

 

That aside, the order has the effect of substituting Phoenix for HFC. Wherever you read in the cout papers 'HFC', the order directs you should now read' Phoenix'. Further everything I have said about delay still stands and nothing you say today about the explanation for delay will be in a receivable state as evidence before the court tomorrow. Your evidence in support of your application should be in your supporting witness statement

However, I like the 'no show' idea. By that I mean as follows:

 

The Notice of Assignment was given by letter dated 24 June 2008 by Marlin as agent for Phoenix (the assignee), yet Marlin signed the letter 'for and on behalf of the assignor' I will need to check the validity of an assignment given in this way, but assuming notice can not begiven in this way, a valid assignment will not have occurred and Phoenix will have no lawful interest in the case.

 

Assuming that to be the case also, if solicitors attend tomorrow, it is likely they will attend to represent Phoenix, not HFC. If it can be shown that Phoenix have no legal interest in the case, the solicitors representing Phoenix should retire out of the court room to enable your application to proceed. If that happens there will be no one representing HFC.

 

If there is no one representing HFC your application stands reasonable prospects because in the absence of opposition upon the hearing of an application which can be shown to have been served, it would be reasonable for the court to conclude the opoistion had no objection to the judgment being set aside.

 

More work's required on this but given I think in the ordinary way the application for set aside will fail, coming at things from this angle is about your only chance.

 

x20

[Satterthwaite]

X20 Thanks it is roughly what I thought I will post the Mortimer Clarke letter in a minute.

[Satterthwaite]

[Satterthwaite]

I will post the notice in a minute

[Satterthwaite]

[Satterthwaite]

If I have until Friday to object to Phoenix being replaced as claimants

 

How can it be possible on Monday for their solicitors to represent them

[tinkerbell20]

Tinks, have you ever known of an application being made to the court under section 142 and which succeeded, post-judgment?

 

The reason I ask is that surely, post-judgment, the rights of the parties would be subsumed in the judgment, not an agreement upon which by definintion, the court will have already adjudicated.

 

x20

 

 

Yes I have though in that particular case the creditor agreed to a consent order which removed charging order and the judgment and any potential claim they may have had. They paid costs too. However the OP had a copy of the fixed loan agreement in which the amount of credit was clearly wrong. Goodes agrees that the enforceability can be challenged at any stage of the enforcement procedings but not the default judgment itself per se. & that was the argument being put forward

[Satterthwaite]

ttt

[Satterthwaite]

Am I right in thinking that an assignment is not legal if the company (HFC in my case) have not sent me a notice informing me that they have assigned (to Marlin in this case)

 

Thanks

[Satterthwaite]

Just found this post from Nicklea on a Robcag thread

 

"Also, don't forget that if they don't notify you properly (ie by personal service or recorded delivery) of the sale under The Law of Property Act 1925 then it isn't effective. That is, HFC would still actually own the debt."

[Satterthwaite]

I am not going to court till 14.30 so if anyone has any pointers please feel free to post.

[Satterthwaite]

If I get to the position of being able to speak unapposed do I have to fully state my case or would it be just enough to say that as HFC have not sent a representative that it is safe to assume that they do not oppose my application and that therefore the CCJ should be set aside?

[OnMyWayOut]

I don't know the answer - but best of luck this afternoon.

[robcag]

Hi S

 

If I get to the position of being able to speak unapposed do I have to fully state my case or would it be just enough to say that as HFC have not sent a representative that it is safe to assume that they do not oppose my application and that therefore the CCJ should be set aside?

 

I'm not sure of the correct answer to your question, but I was asking similar questions at the point just before I went to court for the first time.

 

I was probably lucky as I had a seemingly fair Judge who let me speak several times, sometimes by asking me directly if I had anything to say or did I understand the point in question. Once or twice I put my hand up slightly to show that I wanted to say something, and I even probably interrupted a couple of times to say I wanted to say something!

 

I think it depends to some extent on the Judge (obviously be polite to him/her, address the Judge as Sir/Madam (or Ma'am ?)), but if you don't understand what you have to say at which point, hopefully the Judge will guide you if neccessary. So I guess, after listening carefully to the Judges opening 'intro'/'instructions', if you're not sure exactly what is required, then ask the Judge.

 

I imagine you need to try and establish the fact that anyone who does turn up, is legally entitled to be there, as you suggested further up the thread, before stating the argument that HFC have sent no representative.

 

Take some paper and a pen/cil so you can scribble down anything you disagree with which you may need to bring up later if/when you need to speak again, as it is easy to forget things in the heat of the moment.

 

Make sure if you do have anything else to say that the Judge lets you do so before s/he makes a final decision and sums up.

 

Lastly try to relax and keep a clear head, and try to stay composed.

 

Again, good luck!

 

Cheers

Rob

Edited September 15, 2008 by robcag
typo

[robcag]

PS

 

Forgot to mention, don't tell the opposition anything before you go into the court-room! Whatever you have to say in the court will then be more of a surprise than if they've had a few minutes to mull it over.

 

Cheers

Rob

[Satterthwaite]

Rob,

Thanks just been rehearsing with my wife and she said exactly what you said.

I have been in court many many times so am not worried about speaking I just want to make sure I have all the facts to to hand which I think I have now.

Thanks again

[robcag]

Hi S

 

Something I just noticed, possibly talking out of my a55 here, but regarding the Notice of change of solicitor you have posted in post #83.

 

The 'signature' of 'Keziah Lewis' who has allegedly completed the form N434 has obviously been printed by a computer in a 'hand-writing' font (not even a scan of his signature). I'm wondering if that is permissable with this type of official document?

 

Just a thought, and probably a bit late bringing it up.

 

Cheers

Rob

[surfaceagentx20]

The provisions regarding notice are as follows:

Law of Property Act 1925 section 136 'Legal assignments of things in action'

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action; he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925

The assignment itself must be 'under the hand' of the assignor', but the section is silent as to who should serve the notice of the assignment on the debtor, merely that it should be 'express' and 'given to the debtor'. The authorities are silent on the point whether just the assignor or just the assignee may serve, and of course if it was intended that the one but not the other should serve the notice, one might have expected to see that in section 136. I suspect the reasoning for mere notice, rather than notice given by a specific party to the assignment is that the debtor will be indifferent as to whether he pays the assignor or the assignee. In fact, on further enquiry, Bateman v Hunt [1904] would be the authority on the point (notwithstanding the decision of the Court of Appeal pre-dates the coming into effect of the Act). A google search for this case brought me to PT's very helpful statement of the law in regard to the matter of written notice to the debtor. PT's statement can be found here.

In terms of service of the notice of assignment, regulations governing notice appear at section 196 of the Act. Section 196 'Regulations respecting notices', says:

(1) Any notice required or authorised to be served or given by this Act shall be in writing.

(2) Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.

(3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

(5) The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.

(6) This section does not apply to notices served in proceedings in the court.

Section 196 therefore permits service 'by leaving' [sub-section (3)] or 'by post in a registered letter'

The question therefore is, whether postal service of a notice of assignment by means other than registered letter would be ineffective for the purpose of section 136.

You can not say you have been served with nothing. You can only say you have been served, but the service was by means other than registered letter. You may argue that service is ineffective, but I would have thought the court would treat the delivery of the letter and its receipt as coming within sub-section (3), since the postman left the letter at your house. The court's have constantly stressed that the purpose of service is to bring to the attention of the person to be served, what it is that he is being served with. The Act is silent on the question of personal service, yet no one would say that the delivery of the notice of assignment into the hands of the debtor would be ineffective. I treat section 196 as dealing with what would constitute sufficiency of service.

That said, the notice of assignment has to be 'express'. I flagged up that the notice given to you was on the one had said to be from the agent of the assignee but was signed as coming from the agent of the assignor.

A notice of assignment has been held invalid where it gave the wrong date of the assignment (even though there is nothing requiring the date to be stated), as might a misstatement of the amount of the debt (See: W F Harrison & Co Limited v Burke [1956]). Would the giving of notice in the way yours was be 'invalid'?

The answer is in the law of agency. Can an agent be agent for both parties? Apparently he can. (See: Gavaghan v Edwards [1961]).

In truth, the statement that Marlin delivered as agent for the assignor is in all likelihood the result of an error of concentration. I found it because I was looking for grounds to upend the notice. I could not say the notice was so misleading that I had no idea what it was telling me. In the end, though there was the prospect of a glint of light, I think nothing of significance turns on the point.

By all means have a go, but as I have said previously, the serious difficulty in your application to set aside here is the delay or absence of promptness which is not sufficiently explained away in your supporting evidence.

Good luck nonetheless.

x20

[robcag]

Hi x20 and Satterthwaite

 

..........

That said, the notice of assignment has to be 'express'. I flagged up that the notice given to you was on the one had said to be from the agent of the assignee but was signed as coming from the agent of the assignor.

 

A notice of assignment has been held invalid where it gave the wrong date of the assignment (even though there is nothing requiring the date to be stated), as might a misstatement of the amount of the debt (I can't recall whether Satterthwaite had an accurate debt figure stated on his NoA, but in my case no amount was stated, so there is hope there for Satterthwaite (See: W F Harrison & Co Limited v Burke [1956]). Would the giving of notice in the way yours was be 'invalid'?

 

The answer is in the law of agency. Can an agent be agent for both parties? Apparently he can. (See: Gavaghan v Edwards [1961]).

 

In truth, the statement that Marlin delivered as agent for the assignor is in all likelihood the result of an error of concentration. It seems that Marlin must suffer from some form of extreme attention deficit disorder as several people on the forum have reported that same experience (which I myself have experienced) I found it because I was looking for grounds to upend the notice. I could not say the notice was so misleading that I had no idea what it was telling me. In the end, though there was the prospect of a glint of light, I think nothing of significance turns on the point.

 

By all means have a go, but as I have said previously, the serious difficulty in your application to set aside here is the delay or absence of promptness which is not sufficiently explained away in your supporting evidence.

 

Good luck nonetheless.

 

x20

 

Cheers

Rob

[Satterthwaite]

A notice of assignment has to come from the assignor (HFC) to me. That is fact an example is what is stop a company obtaining details of credit card debt I have with say CAP1 writing to me saying they own the debt gives us 10k so I send a cheque for 10k and they dissappear down the the road. I later find I still owe CAP1 10k

Not the best anaology but that is why the law is there it is not good enough just to say

there is a result of an error of concentration. The law is formed to protect people as well it is not there for solicitors to just pick and choose what bits they like and ignore fundamental parts that do not suit their purpose.

[robcag]

Hi S

 

Repeating my comment in post #97 above, 'I can't recall whether Satterthwaite had an accurate debt figure stated on his NoA, but in my case no amount was stated, so there is hope there for Satterthwaite' What is your position with regard to the amount stated (if any) on your NoA?

Cheers

Rob

[Satterthwaite]

The amount is not right I cant tell by how much because I have never received anything from HFC to allow me to check. There is also a large amount of interest but no explanation as to how it is arrived at. A collection charge of £1652.62 that was Reston Solicitors fee they charge everybody 16% of the default balance no matter what that balance is.