Urgent help needed with defence at county court

[Courierman]

Hi everyone and apologies for requiring such an urgent response.

 

out of date embarrassed defence removed - dx

 

Edited May 12, 2015 by dx100uk

[citizenB]

I think I have read somewhere that if the document is signed by the bank/creditor before the debtor that invalidates it. I would hope that someone will be able to confirm that for you.

 

Have you let the court know WHY you cant attend?

 

I think you can add somewhere in your defence, that you request permission to amend your defence if the the other side provide documents you needed to defend after yours has been submitted. DUH..!! which I notice you have done anyway:)

 

Hopefully, someone with more experience will be along soon.

[banker_rhymes_with]

Hello CitizenB!

 

This Thread may help on the Signature Date issues:

 

Does it matter when the creditor signs an agreement and do they have to send a copy to the debtor?

 

In a nutshell, assuming this was something that was made over the Telephone (making it normally not a Cancellable Agreement), the fact that they have given Courierman "Cancellation Rights", makes this into a Cancellable Agreement. Had they not added that in the Box, the Agreement would not have been "Cancellable".

 

OK, as it clearly is a Cancellable Agreement, when they Signed it First, the Agreement became a fizzing firework, and became Executed the moment Courierman put pen to paper (BANG!). From that second, they then had 7 Days to send him Cancellation Rights. If they didn't...see below!

 

Courierman...

 

I suggest you read the above Thread, then see if you can work out if they did send you any such Cancellation Rights after you Signed and within 7 Days. The burden is on them to prove that they did, it's not on you to prove that they didn't.

 

This could make the Agreement Unenforceable because it's...

 

...not properly executed by virtue of s63(5), and cannot be Enforced by virtue of s127(4a) and s127(4b), as they failed to comply with section 63(3), and they also failed to comply with s64(1b).

 

To read what each Section means, here's a link to the Consumer Credit Act where you can click on any Section and go to see what it says.

 

It may be worth sending them a SAR, or if time is tight, you may be able to ask them for Copies of all Correspondence as part of CPR. I have little Court experience, so a Mod or Site Helper would need to comment there on how to get this details of any Cancellation Rights sent ASAP. Might be wise to not make it clear why you are asking for them!

 

I hope this helps.

 

Cheers,

BRW

[citizenB]

THanks BRW. Courierman, you are in good hands now.

[Courierman]

Thanks guys, I've had a read through the thread suggested and I'm more confused than ever, but never mind...

 

Another thred I read with interest was concerning the actual agreement as being required to be a single document with my signature on it and with the prescribed terms on the same document, from what I can see (or rather what they decided to send me) they are on different documents, but it could be the way they were faxed from the original branch.

 

Just an observation here, the date on top of the faxes shows they were faxed to them back in May giving them plenty of time to send me copies but they waited until after the 14 days before trial limit (as directed by the district judge) before sending them to me - is it worth following this line of defence?

 

It's interesting to note that on the statements they bothered to send me there are some "late payment fees" totalling £120, is it possible to put the account into dispute in such a short time?

[I've got no money]

OK Procedure - can I ask in the Order of DJ Mitchell - what other directions did he make - have they been complied with by the other side...

 

If not you need to make an urgent application on an N244 to vacate the trial date and for an Order that they comply.

 

What should have happened is that when they didn't give you the disclosure back in May you should have made an application to the Court for an Order that they comply...don't worry about it...you need to be a lawyer to know...

 

Can you post ASAP a copy of the Order - take out your name and anything else that identifies you - can you also tell me which of the directions have been complied with and by who. How much the claim is for and which track it has been allocated to. I'm going out now - I'll be back at around 10pm.

[banker_rhymes_with]

Hello Courierman!

 

As Court is looming, I think you'd better alert a Moderator to see if you can get some help to ensure everything is done by the book from this point onwards.

 

Things do move slowly, but it's vital that you must get every last detail correct and don't give them any free points.

 

Just go to the CAG Home Page, and see which Moderators are on-line, and make contact.

 

Hope this helps.

 

Cheers,

BRW

[Courierman]

OK Procedure - can I ask in the Order of DJ Mitchell - what other directions did he make - have they been complied with by the other side...

 

If not you need to make an urgent application on an N244 to vacate the trial date and for an Order that they comply.

 

What should have happened is that when they didn't give you the disclosure back in May you should have made an application to the Court for an Order that they comply...don't worry about it...you need to be a lawyer to know...

 

Can you post ASAP a copy of the Order - take out your name and anything else that identifies you - can you also tell me which of the directions have been complied with and by who. How much the claim is for and which track it has been allocated to. I'm going out now - I'll be back at around 10pm.

 

 

Hi IGNM,

 

Ok first the disclosure, I did put on my AQ a request for the judge to make an order that it be provided to me. The disclosure was the very first thing I requested from FV-1 and got their standard "We'll send it when we get it" letter.

 

Only section 6 of the order as mentioned previously had not been complied with, I don't know how relevant it is that they complied after the date set out in the order.

 

The claim has been allocated to the small claims track.

 

The amount the claim is for is £1198.58 + £65.00 court fee + £80.00 solicitors costs giving a total of £1343.58

 

For your interest, the original POC read:

 

---QUOTE---

The Claimant claims for sums due under a various Credit Agreement(s) entered into between HSBC plc and the Defendant. The rights of HSBC passed to the Claimant pursuant to an assignment dated 23/12/06 between HSBC plc and the Claimant. The agreement(s) was/were terminated upon the Defendant failure to comply with the terms of the Agreement(s) and or the statutory Notice of Default served by HSBC plc.

And the Claimant Claims:

Credit Card Account xxxxxxxxxxxxxxx balance of 986.83 as of 22/7/05.

Interest under s69 of the County Court Act 1984 at the rate of 8% a year from the Default Date(s) to 27/3/08 of 211.75 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 0.22 AND Costs.

--UNQUOTE--

 

As far as I can remember, I have never received a default notice, as I was the only person at the address no-one else could have received it, and they certainly didn't notify me that the debt had been assigned to FV-1, the first I knew about it was when the LBA arrived.

 

Here's the order - across two pages:

 

 

 

 

 

Thanks guys....

Edited June 29, 2008 by Courierman
Splelling mistakes - somebody moved the letter on my keyboard!!

[I've got no money]

God I hate Small Claims Track cases because you get directions like these...there is nothing about you inspecting documents or about you having a right to a class of documents. Do all those people who rave about getting cases allocated to the SCT now understand why I hate it so much.

 

Rant over

 

Can I ask why you are not attending the case?

 

The fact that they've not complied with the Order, at this stage, makes no difference they have given you documents.

 

Have they sent an index with the documents? If so can we see it. You said that there is a copy of the agreement - can you post it please together with a copy of the document that is signed by the OC and dated before the agreement.

 

Is there a copy of the Notice of Assignment and/or a copy of the actual assignment. If so can you post them please. You, of course, need to cross out anything that identifies you.

 

I'm not sure if I can get it adjourned but I may well be able to knock up a skeleton argument for to use at the hearing. I'm around all night.

[I've got no money]

Sorry I've just re-read the post and seen the credit agreement...

[I've got no money]

A few thoughts about how to run the hearing:-

 

Don't forget the direction that says they have to bring originals to court - you want to see the originals before the hearing starts - if they haven't got the original argue that the evidence is inadmissable - in breach of the order

 

The Basic rule of Law is that he who asserts must prove:-

1. They have to establish that there is a valid agreement - the one that you've posted doersn't appear to me to be enforceable - it doesn't contain the required information

2. They have to prove that there was an assignment - this is where it gets slightly tricky.

They will produce a Notice of Assignment and say that is enough to prove the assignment BUT there are two points in reply the first is that you have not been served with the Notice and therefore it is ineffective

AND the Notice does NOT in any event create an Assignment - there has to be an assignment and the claimant has to produce it to prove that it really exists- you have unfortuantely not pleaded this point in the defence - in fact you haven't referred to it at all - which means that you're deemed to have agreed that an assignment took place. What you need to do is raise the Assignment point both in respect of the Notice and the actual assignment and if anyone says anything tell the court that you didn't know - with a bit of luck you may get away with it.

3. They then have to prove that you were served with the default notice

You say you weren't the court makes a decision.

4. Failure to comply with your CCA request - the claimant needs permission of the court to enforce the agreement. Argue that this is a case where the court should exercise its' discretion and not allow enforcement because by not complying with the disclosure requests the claimant has directly affected your ability to present your case. If the Court says that bringing proceedings is not enforcement - ask the court in that case not to permit any enforcement of any CCJ.

5. Have you sent a bundle of documents to the other side - you should have - you need to include the CCA letter.

[Courierman]

OK, here we go with some more info....

 

Point 1 - valid agreement, this is what they sent me - page 3 is pretty poor quality print, some parts unreadable so I've done a hi-res scan and put links to them all, it's basically in four parts - numbered in the same order as presented in their bundle:

 

Page 1: http://i189.photobucket.com/albums/z6/g7syw/court/CA.jpg

Page 2: http://i189.photobucket.com/albums/z6/g7syw/court/ca-2.jpg

Page 3: http://i189.photobucket.com/albums/z6/g7syw/court/ca-3.jpg

Page 4: http://i189.photobucket.com/albums/z6/g7syw/court/ca-4.jpg

 

These two pages were also included between the assignment and the first page above. I'm assuming these form part of the agreement as their index reads, Assignment, Agreement, Statements, I really haven't got a clue what these two pages are about. Upon scanning them, I did notice that these two pages state Mastercard and the agreement states Visa :?

 

Page 5: http://i189.photobucket.com/albums/z6/g7syw/court/xx-1.jpg

Page 6: http://i189.photobucket.com/albums/z6/g7syw/court/xx-2.jpg

 

Point 2 - I guess leaving the assignment out of the defence was a bit dumb of me, but again this hadn't been produced until after I submitted my defence.

 

Point 3 - Have to wait and see then...

 

Point 4 - That's what I was hoping would be the path to take.

 

Point 5 - Yep, they've had everything up to date, so no surprises from me - hopefully

 

The reason I won't be at the hearing - when I completed the AQ I had no reason to believe that I wouldn't be available at any time, however I now have a job scheduled that's not in this country - I'm frantically trying to get someone else to cover it for me, so may get to turn up if I'm lucky.

[Courierman]

Oops, you wanted to see the index, forgot to scan that sorry about that but all it's only a single sheet of A4 with the wording:

 

Colchester County court Claim Number xxxxxxxxx

 

FV-1 Inc

Claimant

-v-

Defendant

Mr x x xxxxxxx

 

Submission of documents

 

1. Assignment

2. Application

3. Statements

 

 

That's it, exactly as laid out above.

 

Here's NOA - please note that the information crossed out on page 16 was how it was received. I only received a small portion of the NOA - page 1, which is simply a cover page, and these in this order...

 

Page 2: http://i189.photobucket.com/albums/z6/g7syw/court/noa-1.jpg

Page 6: http://i189.photobucket.com/albums/z6/g7syw/court/noa-2.jpg

Schedule: http://i189.photobucket.com/albums/z6/g7syw/court/noa-3.jpg

Page 16: http://i189.photobucket.com/albums/z6/g7syw/court/noa-4.jpg

Page 36: http://i189.photobucket.com/albums/z6/g7syw/court/noa-5.jpg

 

 

Edited June 30, 2008 by Courierman

[I've got no money]

I've only just been able to get onto the site - it wouldn't let me in - so I'm gonna look at the docs now

 

One immediate thought - if you can't attend court then nyou need to explain why and ask for an adjournment

[I've got no money]

The document that you think is the Notice of Assignment isn't - it actually appears to be the Assignment itself.

 

The Law says that in order for an Assignment to be valid notice of it needs to be served s136 LPA 1925 - the section goes into detail. I haven't seen an actual Notice so the Assignment isn't valid.

 

As far as the document itself is concerned I'm not sure if it is actually a lawful assignment. It is true that it is signed by the parties and has the company seal attached to it BUT if you read the detail it actually is an offer to assign which the purchaser has to accept by paying on a certain date. I don't know whether that is actually sufficient to amount to an assignment

 

In all honesty that is a very technical point that somebody with more specialist knowledge on the law of assignments may be able to answer. I would need access to a good law library to give you an answer and I don't have that.

 

I think that there is an argument that says that an Assignment must be Absolute - this document is not absolute - it requires an act at some point in the future by the assignee (the person buying the debt) before the assignment can take place - therefore this document is not a valid assignment - that's my argument but I don't know whether I'm write - so guys if anyone knows more about assignments - comments please.

 

The reason that they haven't disclosed it all is because they are going to argue that it's commercially sensitive - i.e. how much they actually bought the debt for. Don't forget they should have the original at court and you want to see it.

 

As far as the agreement is concerned I don't think it is enforceable. It sounds as if they have attached the wrong terms and conditions - you need to ask the court to disregard those and therefore work on the basis that the claimant has failed to produce them.

[Courierman]

OK - it looks like I have my being able to attend problem solved, I've managed to get around that now...

 

So to my understanding, I should argue that -

a: they have to proove that I received a default notice (from reading through other threads from what I can work out it's supposed to been sent recorded delivery)?

 

b: They haven't produced the NOA as requested, or ever provided me with it

 

c: That the agreement isn't valid

 

Any help as to how I should word it in court would be appreciated...

 

Thanks, so far guys...

[I've got no money]

On the basis that its' an argument - I would also argue that there has not been a lawful assignment at all. An assignment should be absolute. The document they've produced is an offer to assign which I don't think is the same thing.

 

Hopefully somebody who knows a bit more about assignments than I do can tell us if I'm right or not - certainly I personally would run the argument at court.

[foolishgirl]

Don't know much about the legal technicalities of assignments either so just posing the question.

 

I know it mentions absolute assignments in LPA but what about equitable assignments in regard to debt collection IGNM? Is it a different type of contract/assignment & therefore different docs. produced?

 

Think we need a banana input here - please?

[I've got no money]

I am a banana - just unfortunately I am not an expert on Assignments.

 

It is not an equitable assignment.

 

Here the claimant has pleaded that an Assignment took place. That then engages the provisions of s136LPA 1925 which requires a notice to be served. The Notice DOES NOT create an assignment. If a proper notice is served it validates an existing assignment.

 

In my view that is clear.

 

Where the issue arises is whether or not the document produced by the claimant is actually an assignment at all. When you look at the detail it actually appears to be an offer to assign. It basically says we will assign if you pay us on a certain date. Now I don't know if that is an assignment or not.

 

Unfortunately I don't have access to the practitioner texts on Assignment, such as the law of assignment by Marcus Smith or to the specialist texts on Consumer Credit. such as Goods. All I've actually got are Blackstones Statutes on Commercial and Consumer Law and Consumer Law and Practice by Lowe & Woodroffe - neither of which gived the answer. This is the sort of case where a Solicitor would instruct a specialist Barrister to advise.

[foolishgirl]

Thanks for the detailed reply IGNM. I wasn't aware of your qualifications & hope you didn't take offence - wasn't intended. I'm learning all the time & just trying to make sense of this argument. :o

[I've got no money]

No - I'm not offended at all - I actually don't tend to talk about my qualifications/experience - the point I was trying to make is that this is a really technical point and that you need a real expert on the law of assignment to give a proper view...arguably the case is not suitable at all for the SCT at all - but its' a bit late to do much about that...

 

I wonder if pt could run it by one of his law lecturers...

[Courierman]

Thanks to all that helped with my case. In the end I was unable to attend court but my prior engagement was too important to miss.

 

On the day of the hearing a letter arrived at my house from another firm of solicitors with instructions to take over the case for IND on the 8th July - the day before the hearing, not much time there to object then...

 

Anyway, I have today just received confirmation letter from the court - The judge struck the claim out

[banker_rhymes_with]

Hello Courierman!

 

Excellent, good news!

 

Cheers,

BRW

[citizenB]

That is good news courierman:)

[jasperpad]

Without going into too much detail, my partner is having to go to a county court to defend a claim by her ex employer.

She was the office manger of a small/medium construction company.

They are claiming that she gave herself an increase of salary two years running, the first they say she gave herself an increase of 2% above the agreed rate, the second was the same. They also claim that she also gave herself 10 hours per month overtime which again they say she should not have done.

Firstly this has all come about from a tribunal she took them to for unfair dismissal, she won the case but the tribunal preferred the witness statements from the MD and the office administrator.

(Background, the admin hated my partner!)

There was never any firm evidence produced to back the lies that were "produced" by the company and that is why the tribunal agreed that she did in fact defraud the company of what was about £1250.

Now the company is taking her to county court to try and get the money back, money they can’t prove she wasn’t entitled to.

We have asked the court to get the company to produce a set of documents that will prove her innocence but they haven’t produced them, and the hearing is to be held on the 1st October.

I have read that the county court also does not have to rely on firm evidence and if this is so she is going to lose and have to repay what is now a total of £1450, (an aside is they are claiming £70 for administration costs!).

My questions are many, but mainly does the count court have to have the evidence from the company? Can we demand the evidence we need to prove my partner’s innocent of the claims?

We need to win this case because she cannot get a job because of this and has been out of work since April this year, and this has put us under enormous pressure financially as you can imagine. If we win we can clear her name which is what we want to do, nothing else matters.

Please someone HELP us.