Eversheds County Court Paperwork / **SUCCESS**

[Out4Revenge]

first thing is they've not allowed 14 days for the default notice since it would of only reached you at the earliest on the 20th

[atwozee]

An NoA doesn’t have to come from the OC as long as you can reasonably identify the alleged loan/debt/card whatever.

There is no official format for a NoA as far as I have been able to establish – but if it is posted it should be by registered letter.

The credit agreement stinks as it is and the DN is invalid – the account has been terminated and the DN can’t be rectified – as long as the judge follows the regs then this thread should say won in the near future.

I would still like to know if they have tried to default an already terminated account as this would reduce the amount owed at termination (which you could dispute) and dispute any possible claim for the amount of arrears – that’s if the agreement is judged to be good of course.

[car2403]

An NoA doesn’t have to come from the OC as long as you can reasonably identify the alleged loan/debt/card whatever.

 

There is no official format for a NoA as far as I have been able to establish – but if it is posted it should be by registered letter.

 

This is very wrong, sorry atwozee.

 

For instance, I send you a letter saying that your mortgage account (should you have one) has been assigned to me and that you are to send me your monthly mortgage payments from now on. Would you?

 

No! (Or, I'd hope you wouldn't! PM me if you want my postal address for cheques, however - the car donation fund is always open to receive gratefully!)

 

The assignor (the creditor) must inform you that the debt has been assigned to the assignee (the purchaser of the debt) so that you know that they are legitimate.

 

s.136 Law of Property Act 1925;

 

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

 

The key here is the bit in Blue - if the NoA doesn't come from the original creditor, the assignment is ineffectual in law and the assignee cannot pursue the debtor through the Courts, or be recognised as having the legal obligations and requirements as the original Creditor. They may, however, have an equitable interest, such as collecting on behalf of the OC, but they are not legally entitled to take any action. They may also be in breach of harassment legislation if they continue to chase a debtor in that way, in these circumstances.

[atwozee]

I’m not disputing that you should always question any DCA that sends you a NoA – but this action actually acknowledges the NoA removing the need for proof of delivery.

But I have to disagree that the LoP states that a NoA has to be sent by the OC – it doesn’t – it says that the assignor has to assign to the assignee in writing – that has nothing to do with the actual NoA sent to the debtor – it states that the debtor should be informed of the assignment but it (unfortunately) doesn’t stipulate that the OC has to send out the NoA.

Depending on who sends out the NoA could mean breaches of the Data Protection Act have occurred but that’s another thing entirely.

[car2403]

I’m not disputing that you should always question any DCA that sends you a NoA – but this action actually acknowledges the NoA removing the need for proof of delivery.

 

But I have to disagree that the LoP states that a NoA has to be sent by the OC – it doesn’t – it says that the assignor has to assign to the assignee in writing – that has nothing to do with the actual NoA sent to the debtor – it states that the debtor should be informed of the assignment but it (unfortunately) doesn’t stipulate that the OC has to send out the NoA.

 

Depending on who sends out the NoA could mean breaches of the Data Protection Act have occurred but that’s another thing entirely.

 

I think you're getting confused with the difference between Notice of Assignment and Deeds of Assignment.

 

For an assignment to take place, legally, a Deed of Assignment must exist between the Assignee and the Assignor.

 

The Notice of Assignment, which is diffent to a Deed of Assignment, is different and is meant as a "Notice" (sorry, I know that's obvious, as the name suggest) of Assignment having taken place being sent to interested parties.

 

I'm sure there's caselaw to suggest the NoA has to come from the OC, but I can't recall what it is now. I'll have a hunt around for it...

[atwozee]

‘of which express notice in writing has been given to the debtor…’

Doesn’t mean the ‘notice’ has to be under the hand of the assignor – that’s the bit that gets misinterpreted IMO.

If you can find case law to support your statement then great because it would help anyone who has had a debt assigned to CL Finance for one.

[car2403]

‘of which express notice in writing has been given to the debtor…’

 

Doesn’t mean the ‘notice’ has to be under the hand of the assignor – that’s the bit that gets misinterpreted IMO.

 

If you can find case law to support your statement then great because it would help anyone who has had a debt assigned to CL Finance for one.

 

I didn't find the caselaw I was thinking of, but here's a brilliant post from Paul on this subject;

 

20. Notice in writing.

 

 

 

In order that the assignee may obtain the benefit of the Law of Property Act 1925, express notice in writing of the assignment must be given to the debtor, trustee or other person1 from whom the assignor would have been entitled to claim the debt or the chose or thing in action2. Where there are joint debtors and covenantors, notice to one who is a bankrupt is unnecessary3. The notice need not be formal4, and need not be written with the intention that it should perform the function of giving notice5; but it must be given even though the debtor cannot read6. The assignment only operates under the Act as from the date of the notice7, that is, the date on which it is received by or on behalf of the debtor8. If the debt is released or extinguished by payment or otherwise before notice is given, there is no transfer under the Act9.

It has been held that if the date of the assignment is wrongly stated the notice is ineffectual10, though if no date is given at all the notice may be good11. It may also be ineffectual if it does not state the amount of the debt correctly12.

The Act prescribes no limit of time within which the notice must be given13, and a notice given after the death of the assignor14, or after the death of the assignee15, is effectual.

The Act does not prescribe that the notice must be given by any particular person16. Thus it may be given by the personal representatives of a deceased assignee, even though no notice has been given by him or by the original or any intermediate assignee17.

In the case of a company, notice to the manager at the works, though not communicated by him to the head office, may be sufficient18.

It is thought that where there have been two assignments of the same debt, of both of which notice has been given to the debtor, but the assignee under the second assignment, without having notice of the first, gave notice to the debtor of his assignment before notice was given of the first assignment, he will have priority19.

If a debtor has given a negotiable instrument, for example a cheque, in payment of the debt, a subsequent notice that the debt has been assigned may be disregarded by the debtor even if the creditor still holds the cheque20.

 

 

 

 

 

 

 

1 Amalgamated General Finance Co Ltd v CE Golding & Co Ltd [1964] 2 Lloyd's Rep 163 (no legal assignment because no notice to underwriters); Shaw v Applegate [1978] 1 All ER 123, [1977] 1 WLR 970, CA (equitable assignment of benefit of negative covenant became legal when notice given to covenantor). It seems that notice should be served on every person who would be a necessary party to a claim on the debt: see Josselson v Borst [1938] 1 KB 723 at 736, [1937] 3 All ER 722 at 727–728, CA, per Greer LJ, and at 740 and 732 per Slessor LJ. Notice should, accordingly, be given to all trustees: see para 53 post. In relation to a cause of action in tort see also Perry v Tendring District Council [1985] 1 EGLR 260; RL Polk & Co (Great Britain) Ltd v Edward Hill & Partners [1988] 1 EGLR 142.

2 Law of Property Act 1925 s 136(1). An assignment will be good in equity as between assignor and assignee without notice: Gorringe v Irwell India Rubber and Gutta Percha Works (1886) 34 ChD 128, CA. See further para 42 post. The suspensory character of the proviso in Gatoil Anstalt v Omennial Ltd [1980] 2 Lloyd's Rep 489 meant that the notice of assignment did not satisfy the requirements of the Law of Property Act 1925 s 136 (as amended).

3 Insolvency Act 1986 s 345(4); Josselson v Borst [1938] 1 KB 723, [1937] 3 All ER 722, CA.

4 Denney, Gasquet and Metcalfe v Conklin [1913] 3 KB 177.

5 Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA.

6 Hockley and Papworth v Goldstein (1920) 90 LJKB 111 (where the debtor's inability to read was well known to all the parties, and clear oral notice was given but was ineffective).

7 Law of Property Act 1925 s 136(1).

8 Holt v Heatherfield Trust Ltd [1942] 2 KB 1, [1942] 1 All ER 404; Holwell Securities Ltd v Hughes [1973] 2 All ER 476, [1973] 1 WLR 757 (affd [1974] 1 All ER 161, [1974] 1 WLR 155, CA); and see para 21 post.

9 Lee v Magrath (1882) 10 LR Ir 313 at 319, 326, CA (where the transferor appointed the debtor her executor); Re Westerton, Public Trustee v Gray [1919] 2 Ch 104 (payment of interest to assignor of fund before notice of assignment of fund). Cf Jenkins v Jenkins [1928] 2 KB 501.

10 Stanley v English Fibres Industries Ltd (1899) 68 LJQB 839; WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, [1956] 1 WLR 419, CA. It is not so in the case of an equitable assignment: Whittingstall v King (1882) 46 LT 520.

11 Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA.

12 WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, [1956] 1 WLR 419, CA, obiter per Denning LJ.

13 See Bateman v Hunt [1904] 2 KB 530 at 538, CA.

14 Walker v Bradford Old Bank (1884) 12 QBD 511; Re Westerton, Public Trustee v Gray [1919] 2 Ch 104.

15 Bateman v Hunt [1904] 2 KB 530, CA.

16 See Bateman v Hunt [1904] 2 KB 530 at 538, CA.

17 Bateman v Hunt [1904] 2 KB 530, CA (where the notice was given by the executor of a sub-assignee).

18 William Brandt's Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454, HL (a decision on an equitable assignment).

19 See Marchant v Morton, Down & Co [1901] 2 KB 829.

20 Bence v Shearman [1898] 2 Ch 582, CA.

[goonerhenry]

thanks for your posts guys thats given me a little more ammo for my case if it gets that far, whats my best move at this time should i chase trying to get a copy of the NOA which i actually think is the DN as well or am i best to leave it and let them carry on digging a hole for themselves?? also im a little unsure should MBNA have informed me that they sold the debt onto arrow?? also caro you mentioned if i had chased MBNA for any docs, i haven't but from the paperwork i have been sent from arrow\eversheds its obvious that arrow have obtained the copies from MBNA, also i was sent some old statements and a list of when phone calls were made and letters sent, but as these were about 100 pages i didnt bother scanning them in, although i can if anyone wants to take a look.

[goonerhenry]

also the copy of the agreement was obviosuly faxed to arrow and is barely legiable, is it worth asking for a better copy or is this again more ammo for my case?

[atwozee]

20. Notice in writing.

 

 

 

In order that the assignee may obtain the benefit of the Law of Property Act 1925, express notice in writing of the assignment must be given to the debtor, trustee or other person1 from whom the assignor would have been entitled to claim the debt or the chose or thing in action2. Where there are joint debtors and covenantors, notice to one who is a bankrupt is unnecessary3. The notice need not be formal4, and need not be written with the intention that it should perform the function of giving notice5; but it must be given even though the debtor cannot read6. The assignment only operates under the Act as from the date of the notice7, that is, the date on which it is received by or on behalf of the debtor8. If the debt is released or extinguished by payment or otherwise before notice is given, there is no transfer under the Act9.

It has been held that if the date of the assignment is wrongly stated the notice is ineffectual10, though if no date is given at all the notice may be good11. It may also be ineffectual if it does not state the amount of the debt correctly12.

The Act prescribes no limit of time within which the notice must be given13, and a notice given after the death of the assignor14, or after the death of the assignee15, is effectual.

The Act does not prescribe that the notice must be given by any particular person16. Thus it may be given by the personal representatives of a deceased assignee, even though no notice has been given by him or by the original or any intermediate assignee17.

In the case of a company, notice to the manager at the works, though not communicated by him to the head office, may be sufficient18.

It is thought that where there have been two assignments of the same debt, of both of which notice has been given to the debtor, but the assignee under the second assignment, without having notice of the first, gave notice to the debtor of his assignment before notice was given of the first assignment, he will have priority19.

If a debtor has given a negotiable instrument, for example a cheque, in payment of the debt, a subsequent notice that the debt has been assigned may be disregarded by the debtor even if the creditor still holds the cheque20.

That pretty much covers what I said in my previous post – the NoA doesn’t have to come from the OC nor does it need to be in a particular format – but if you can find that case law then definitely post it up.

[goonerhenry]

thanks for that, so in theory does the one line in the default notice constitute a NOA, also if we are saying the default notice has been served incorrectly does that also mean that they cant use that as evidence?, so in effect they have no DN or NOA??

[car2403]

That pretty much covers what I said in my previous post – the NoA doesn’t have to come from the OC nor does it need to be in a particular format – but if you can find that case law then definitely post it up.

 

Agreed, but I still think it's "challengable" in Court on the basis of that example - in this case, it appears, the Law truly is an ass!

[atwozee]

The Arrow DN is definitely flawed as a DN – the line regarding assignment could be interpreted as a NoA but could also be challenged.

The agreement could be unenforceable – hard to say without seeing the original.

Was the account terminated by MBNA before being sold on? (very important to establish any sum owed at point of termination and whether a second DN can be issued by Arrow)

You still need some relevant info to properly defend – what happened at AQ stage?

[goonerhenry]

as far as im aware the account wasnt terminated by MBNA and i cant remember receiving a DN from MBNA, not sure what you mean by 'what happened at the AQ stage?"

in the mean time im going to ask arrow for a copy of the NOA & a legible copy of the credit agreement, is there any legal terms i can throw at them to request an legible copy of the original agreement??

[atwozee]

AQ = Allocation Questionnaire

Did you get one or has this stage been missed out for some reason?

This is where you can further request copies of documents and suggest to the judge any special directions relevant to your case – I thought you were at disclosure of documents stage.

As far as MBNA defaulting/terminating – it would be a little strange them selling your account on without doing at least one of them.

[goonerhenry]

stupid me, yes the AQ was dealt with at about page 4 of my thread, as i said i cant remember MBNA terminating as the only paperwork i have from them other than requests for money was from arrow or eversheds

[atwozee]

I notice x20’s comments regarding their AQ

Did the judge make any directions? Such as ask for originals to be brought to the trial?

Other than what has already been suggested regarding writing to Eversheds there’s not much more you can do other than wait for it to go to court and thrash it out.

I can’t add much more - sorry.

[caro]

This thread may help you understand more about the credit agreement gooner. http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html#post1747470

[goonerhenry]

thanks for your help so far guys i will get a letter off to eversheds and see what they come back with, i have started getting my skeleton argument together and will post it up nearer the time when im happy with it

[goonerhenry]

does the following look ok to ask for copies of the docs:

 

In accordance with District Judge order of the I would be grateful if you could provide me with copies of the following documents:

Legible copy of the original credit agreement, the previous supplied was a very poor faxed copy

A copy of the notice of assignment

I look forward to hearing from you in due course.

[car2403]

does the following look ok to ask for copies of the docs:

 

In accordance with District Judge X's order, dated ***, please arrange for me to inspect the following documents:

 

**** [Enter the wording used on the Disclosure List to refer to the agreement]

**** [Enter the wording used on the Disclosure List to refer to the NoA]

I look forward to hearing from you in due course.

 

Try this?

 

I wouldn't refer to the previous copy supplied, as this is a formal request for inspection of the documents they intend to rely on at trial - if they want to supply what they have already supplied, that's up to them, but we don't want to prompt them in to doing something either way. We aren't here to build their case for them, nor do we wish to be seen to be too lenient when making requestions for more information.

 

Whether what they supply is fully compliant with the CCA 1974, we'll have to wait and see.

 

Edited March 15, 2009 by car2403

[goonerhenry]

thanks fot that, is it worth asking for a copy of the credit agreement as they already sent me a copy of all of their docs with their disclosure list, i was trying to get a better copy as the one sent was appaling and you couldnt read any parts of it other than my sig and the date

[car2403]

In that case, you need to ask to inspect the original, rather than having another copy sent.

 

They should be able to arrange that at a branch local to you, I'd imagine.

[goonerhenry]

do i need to change your amended version of the letter then or just leave it the same and see what they come back with??

[car2403]

do i need to change your amended version of the letter then or just leave it the same and see what they come back with??

 

I've amended my post above