Eversheds County Court Paperwork / **SUCCESS**

[goonerhenry]

cheers mate, i will let you know what they come back with

[goonerhenry]

right i have decided to go with the first letter and ask for a legible copy, if that comes back with the same then im asking to see the original, at least then i know exactly what they a relying on in court, if its a poor copy of the original then we can use that against them

[Docman]

Wirg Arrow, I wold also ask for a copy of the Deed of Assignmnet as well. You need to esablish whether MBNA had agreed to assign accounts that (a) had been defaulted (by issuing a DN) or (b) were current accounts. The firs kind of assignment would cover selling debts to a DCA like Arrow. The second assignment is when a bank sells a current business to another bank or credit card company.

 

Arrow has a CCA licence so in theory could continue to operate a credit card account if the accounts had been transferred as (b) above. However, they operate as though they were assigned bad accounts that hadn't been defaulted properly if at all.

 

The only way of finding out is to see the Deed of Assignment - you might get a surprise. Many MBNA accounts were 'assigned' in late 2006 but it was only in the middle of last year that Arrow had Eversheds start collection. I wonder why? Could it be because the assignment wasn't legal?

[goonerhenry]

i have asked for the deed of assignment as well, although if you read previous posts we think it may have been combined with the default notice, again not sure if thats correct if you could take a look i would appreciate your comments

[atwozee]

i have asked for the deed of assignment as well, although if you read previous posts we think it may have been combined with the default notice, again not sure if thats correct if you could take a look i would appreciate your comments

 

Gooner - the Notice of assignment and the deed of assignment are two different things - as docman says - you also need a copy of the deed itself - for all you know the assignment might not be absolute or even valid.

[goonerhenry]

apologies i will get a letter off asap asking for the deed of assignment as well, although this wasnt on the disclosure list am i stil entitled to ask for it?

[atwozee]

although this wasnt on the disclosure list am i stil entitled to ask for it?

 

Not sure about this but because it is important I suggest you phone the court and ask what the procedure is - it might just be a letter to the court asking for a copy to be supplied.

 

The claimant has mentioned the assignment in the PoC haven't they? You are entitled to inspect the document and request copies.

[goonerhenry]

they only mentioned the notice of assignment and not the deed, i have drafted the follwoing letters, one for eversheds and one for the courts, your comments would be appreciated:

 

eversheds:

Dear Sir/Madam,

With regards to the above case, I notice from your disclosure list that the deed of assignment between MBNA and Arrow Global has not been included in the available documents, as I was not informed at the time that Arrow Global had taken over the account and Arrows particulars of this claim stated that they have a vested interest in the monies owed, this document is needed to prove the validity of Arrows claim to any monies.

A CPR.14 request which was sent to yourselves on the 30th September 2008 has also been ignored, this request legally has to be responded to within 7 days, the request was for a copy of the following documents

1. The agreement

2.The assignment

3.The default notice

As copies of the alleged agreement and default notice have been supplied as part of the disclosure list, I would appreciate it if you could disclose copies of the deed of assignment, again this document is vital to this case as without it Arrow have no rights to claim any monies, I have also sent a request to courts asking for this information to be released, I look forward to your swift response.

 

letter to the courts:

 

Case reference

Me v them

 

 

In respect of the above. On the 3oth of September, under CPR 31:14 , I requested the following documents from the claimants:

 

A copy of the agreement which underpins their claim and which wasnt provided with the initial claim form.

The default Notice

Deed of Assignment

 

The request above has to date, been ignored and whilst I have obtained a copy of the Default notice and alleged agreement which formed part of the claimants disclosure list . I am still awaiting a copy of the Deed of Assignment which wasnt part of that list.

 

This document is vital to the case as it is the basis of the claimants original particulars and it is required by myself to check the validity of the claimants claim to any monies owed. I would therefore ask the court to request that the claimant makes this information available so that I’m able to proceed with my defence of this case.

 

Yours faithfully,

Edited March 16, 2009 by goonerhenry

[car2403]

The Act requires NoA to be sent, so I'm not sure you'll get to see the Deed itself - it probably contains commercially sensitive information, such as the amount being paid under the assignment.

 

Having said that, I did have one sent to me by CL Finance regarding a GE Money debt - interesting to see how much these companies pay each other to "take on" a debt.

 

What I'm saying is it's worth asking to see it, but don't be surprised when they tell you you're only getting the NoA.

 

I'm not sure if the Court will be interested in the Deed - probably a signed witness statement stating one exists would suffice.

[atwozee]

I'm not sure if the Court will be interested in the Deed - probably a signed witness statement stating one exists would suffice.

 

It all depends on the details within the NoA – date of assignment needs to match – amount assigned needs to match – company details need to match – all very important and relevant to the case.

As long as it is available in court for the judge to check – that’s the main thing – it’s a legal document showing proof of entitlement to make the claim in the first place - if it isn't kosher they will have big problems.

[goonerhenry]

to be honest i was thinking the same, but if nothing else its going to waste someone else's time for 10 mins

[goonerhenry]

It all depends on the details within the NoA – date of assignment needs to match – amount assigned needs to match – company details need to match – all very important and relevant to the case.

 

As long as it is available in court for the judge to check – that’s the main thing – it’s a legal document showing proof of entitlement to make the claim in the first place - if it isn't kosher they will have big problems.

 

 

 

so if nothing else i should make sure they have it to hand on the day

[atwozee]

I would kick up a stink if at least the judge can’t look at it and verify everything (that you point out) is in order.

It comes down to what people have been saying and that is it isn’t good enough for Arrow just to say you owe us x amount of money – they have to prove they are legally entitled to it – judges aren’t always aware of everything and it’s up to you to point out the (not so) obvious.

[goonerhenry]

so if i start with these letters and see what they come back with, but if nothing else i want a wittness statement saying they do exist and the judge needs to look at the deed of assignment and the nottice of allocation and confirm that the date of assignment needs to match – amount assigned needs to match – company details need to match

[goonerhenry]

also as the deed wasnt part of the disclosure list im guessing i dont have to worry about requesting it before tomorrw is that right? also do the draft letters look ok?

[atwozee]

so if i start with these letters and see what they come back with, but if nothing else i want a wittness statement saying they do exist and the judge needs to look at the deed of assignment and the nottice of allocation and confirm that the date of assignment needs to match – amount assigned needs to match – company details need to match

 

Pretty much yes – BTW I would still be inclined to point out to Eversheds the fatal flaw in the default notice and suggest they discontinue.

[Docman]

Normally, you would not be entitled to see the Deed because of its 'commercial sensitivity', ie it shows the pittence the DCAs pay for debts. The easy way around this is to agree to the figures being blanked out on your copy with the original for the judge's eyes only.

 

You will have to put up a case to the judge to order disclosure but in this case I believe there is a perfectly valid reason. Arrow have issued the DN (defective I know) themselves. MBNA did not issue the DN and so therefore the account was 'good'. Arrow's behaviour indicates they regarded the accounts as 'bad', ie they should have already been defaulted. You need to see the Deed to establish whethre MBNA was assigning 'good' accounts (without the need for a DN) or 'bad' accounts. If the latter and no DN has been issued, then MBNA have terminated the contract with you and IMHO Arrow do not have good title - others may have a different view though.

[goonerhenry]

couple of good points made docman, thanks for those i will wait and see what eversheds response is to the letter is first, atwozee how would i be best to reveal my hand to eversheds as obviously if i can help it i would rather it not got to court, am i best to try and arrange settlement for the arrears only as if i won this would be all i would need to pay or do you have any other suggestions??

[atwozee]

It’s up to them to pursue the arrears so I wouldn’t point it out at all. Even if they did go for the arrears they would have to verify the amount stated is accurate and (again) lawfully owed under the assignment.

You just simply refer them to the default notice dated xx/xx/xxxx – point out it is flawed and invalid because it doesn’t allow the statutory time limit of 14 days after date of service to remedy the specified breach and as this is not a de minimus issue you invite them to discontinue and save the court any more wasted time and costs.

It’s got to be worth a shot and will give them something to think about.

[goonerhenry]

i like your thinking, i will have a bash at a letter tonight and post it up

[goonerhenry]

right see what you think to this as a letter to eversheds, any comments would be appreciated:

 

I would like to draw your attention to the default notice served on the 19th December 2006, as you will be aware under section 88 of the Consumer Credit Act 1974 the minimum period of time which may be allowed a debtor to comply with a default notice is 14 days after the date of service. The date for compliance was 2 January 2007, so allowing for a minimum of 2 days for the date of service, this means that only 12 days were allowed, this then constitutes a breach of the above law and that the termination occurring on 5 January was a termination not in accordance with section 87(1) of the same law.

As this is not a de minimus issue I therefore ask that you discontinue and save the court any more wasted time and costs.

[caro]

I think you need to question if the debt is enforceable at all. Ask them for proof that the debt is enforceable, and if they can't provide them tell them to leave you alone or you will continue to court and let the judge deal with them as s/he sees fit.

 

I'm not sure about this, but it seems to me that you did not have an agreement with Arrow to pay them, so how could they default you when you didn't even know you owed them money because you only became aware the debt had (apparently/allegedly) been assigned to them on the default notice. (Does that make any sense?)

 

Don't be afraid of going to court. It could work in your favour, especially if you make sure you are well prepared with your arguments and questions.

[goonerhenry]

thanks as always caro, i will see what comes back with the deed of assignment request, im collecting as much info as poss and if it comes to it i will got to court, but at the same time if i can get rid of them before then, then even better

[caro]

At the very least you can show the judge you have tried to resolve this, and if they don't come up with the goods, or withdraw the claim, they will not look good. As you say, let's hope you can dispose of them without the need to go to court.

[goonerhenry]

yeah thats it, as i said before im shocked at how they have tried to get money out of me, i agreed to pay them and have never missed a payment, even through all this court action i have carried on the payments, but as always with these people they get greedy and touch wood that will be there downfall