Could some of the Legal Eagles clarify the following points for me?

[letitbeme]

Could some of the Legal Eagles clarify the following points for me?

1 Default Notice. What is the relevance of none compliance (supplying a copy to the defendant and the court)?

2 Letter of assignment. I’m aware of the relevance regarding this document. What I’m not sure of is the strength of this argument in relation to a request for the Judge to strike out the claim. I haven’t come across a thread were this has happened nor can I find case Law where it has happened.

3. Proof of recorded delivery of the Letter of assignment. Again I’m aware of the importance of this but again I haven’t come across a thread were this has happened nor can I find case Law where it has happened.

Help with this would be most welcome.

Regards LIBM

[42man]

To answer some of your points.....

 

Number 1 - The Need for a Default notice

 

30. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

31. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

32. Notwithstanding point 31, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

33. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

2 -Perfection of the assignment.

 

1.1. It is noted that the claimants, in affidavits in support of the bankruptcy petition, state that a notice of assignment according in all respects with s136 of the Law of Property Act 1925 “was sent to the claimant”.

 

2.1 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

3.1 Since the claimant explicitly states the notice was “sent” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

(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.

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

 

[letitbeme]

Excelent input and clarification. Will be using it in my n244 request.

Do you know of any cases that have been struck out for not supplying these docs?

Regards LIBM

[AndyOrch]

Point 2 NOA to add to 42mans

 

As you know, express notice in writing must be given to a debtor for it to be effective, under s136(1) of the Law of Property Act 1925. However, if said notice includes an amount demanded that is incorrect it renders the notice legally invalid. Reasons for the amount stated being incorrect will of course amongst other things include the stupidity of DCA's ,the inclusion of penalty charges, interest on penalty charges, collection charges, charges imposed by the DCA not expressly provided for in the original contract...you get the picture! You cannot include charges that are unlawful in the amount requested. That said, even if the amount is simply misstated and not as a result of any charges it will still be invalid. A case which supports this position is W.F.Harrison & Co Ltd v Burke [1956] 1 WLR 419

 

Further on this matter, if the date detailed in the notice is incorrect it is also legally invalid. An incorrect date may become apparent if you ask for a copy of the DoA and a document is furnished purporting to be said DoA, which includes the date of execution of the assignment which differs from that in the notice. Additionally, where a notice is sent advising that an assignment will be effected at a particular date in the future, the notice is invalid because it should detail an assignment that has already been executed, not one to be executed at some specified, or even unspecified date in the future. The above quoted case also refers to notices with an incorrect date. There are other cases which I will detail and other particulars that will render a notice invalid.

 

 

 

Regards

Andy

[42man]

Excellent....thanks Andy !!

[letitbeme]

I understand what your saying but this is only relevant when you have a copy of the document. Can I just clarify “ if I submit a n244 to the court requesting a copy of Default Notice, Letter of Assignment, Proof of Postage and upon the none compliance the judge orders the case struck out”. I have read that this is the norm for the none compliance of a n244 disclosure order, but I haven’t come across a “WIN” thread with this as its outcome.

Regards LIBM

[creditcardmug]

Dont know what stage youre at with this but, 1. without a valid Default Notice there is no cause for action under the CPR, 2. Notice of assignment must be provided, otherwise how does the court or anyone else know the claimant owns the debt?. 3. You ask for all these docs in your Allocation Questionaire, so why the n244?

[letitbeme]

Hello CCM,

Yes I did request the documents in the A/Q – but the DC has sent a copy of his letter of assignment and it is MBNA’s letter of assignment that must be produced along with MBNA’s proof of postage .

[creditcardmug]

I take it the DCA is suing you, i.e. DCA owns debt, in that case, if there was any doubt and under the circs. i would ask the court to order that THE DEED OF ASSIGNMENT BE BROUGHT TO COURT, i.e not Notices of Assignment.

[letitbeme]

I have never received a Notice of Assignment from MBNA nor have I received a copy of the Notice of assignment and proof of service of the Notice of Assignment from MBNA as required by section 196 Law of Property Act 1925. It is a procedural requirement of the Law of Property Act 1925 to serve a Notice of Assignment via registered post and until such time that good service is effected the assignment is not valid.

 

If the assignment is invalid the the DCA is barred from bringing legal action until the assignment is correctly served and proof os service can be showen. The deed of assignment has no relevance until the assignment is correctly served.

 

 

2 -Perfection of the assignment.

 

1.1. It is noted that the claimants, in affidavits in support of the bankruptcy petition, state that a notice of assignment according in all respects with s136 of the Law of Property Act 1925 “was sent to the claimant”.

 

2.1 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

3.1 Since the claimant explicitly states the notice was “sent” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

(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.

 

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

 

[AndyOrch]

I concur CCM and furthermore it must marry up with the N.O.A amounts and dates

 

 

Regards

Andy

[letitbeme]

Hi Andy are you saying that the deed of ass overrides the none compliance of the service of the Letter of ass , as outlined by the property act.

Regards LIBM

[AndyOrch]

Hi sorry for the delay got side tracked

 

No not directly if It is not an equitable assignment 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.

 

Where the issue arises is whether or not the document produced by the claimant is actually an assignment at all.

Will come back to you later on this if thats ok its past my bedtime

 

Regards

Andy

[aspire39]

excellent thread,watching with interest as i too have same issue..

[letitbeme]

Further to

 

I understand what your saying but this is only relevant when you have a copy of the document. Can I just clarify “ if I submit a n244 to the court requesting a copy of Default Notice, Letter of Assignment, Proof of Postage and upon the none compliance the judge orders the case struck out”. I have read that this is the norm for the none compliance of a n244 disclosure order, but I haven’t come across a “WIN” thread with this as its outcome.

 

Regards LIBM

 

Further to the clarification on the importance of the correct procedaur in relation to the serving of a letter of assignment.

 

In October of 2001 MBNA (Assignor) say that they sent a letter of assigenment which started the procedure of assigning a debt to the DCA (Assignee) - Absolute.

 

Equitable is where the DCA collects on behalf of the bank, they do not become the creditor so cannot sue or default in their own name.

 

Absolute is where the DCA buys the debt and becomes the creditor. They then collect for themselves. A notice is sent for this type of assignment, as it is a legal action. All assignments under s.136 LoP 1925 are absolute.

 

 

Law of Property Act 1925 (c.20)

 

Main body

 

Part XI Miscellaneous

 

Notices

 

 

 

 

 

 

Version 2 of 2

 

 

 

196.

Regulations respecting notices.

— (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 [F1 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.

 

I never recived this letter of assignment from MBNA (Assignor)

 

MBNA state in a letter that they do not have a copy of the original letter of assigenment nor do they have a copy of the recorded delivery details.

 

For the deed of assignment to be legally enforceable by the DCA (Assignee) – Absolute. The assignor has to prove: -

 

• That the letter of assignment existed – a copy will suffice
  
• A copy of the document containing the details of the recorded delivery service
  

It is my assertion that MBNA (Assignor) did not send a letter of assignment.

 

Until MBNA (Assignor) gives proper notice there is no lawful assignment.

 

The DCA (Assignee) is not the legal owner of the debt and cannot therefore bring legal action to enforce the debit.

 

 

The aforementioned is an extract of my skeleton statement.

 

The following is my dilemma.

 

When I submit a n244 to the court requesting a copy of Default Notice, Letter of Assignment, Proof of Postage and upon the none compliance the judge orders the case struck out. I have read that this is the norm for the none compliance of a n244 disclosure order, but I haven’t come across a “WIN” thread with this as its outcome.

 

Can one of the Legal Eagles point me to a thread where this has transpired.

[letitbeme]

If s.136 LoP 1925 has not been complied with, does this mean that the assignment now becomes Equitable

 

.