zhanzhibar vs Link financial ***WON***

[zhanzhibar]

Bumpety bump ...help to my query above please... as i have to attend court at 3 this afternoon.

 

Thanks

 

zhan

[pt2537]

zhan i have the case you are looking for so PM me an email address and i will send it over

[Out4Revenge]

Good luck for today Zhan

[zhanzhibar]

zhan i have the case you are looking for so PM me an email address and i will send it over

 

Paul

 

You've been PM'd.

 

Thanks.

 

Zhan

[zhanzhibar]

Hiya all,

 

Does anybody know how to do a statement of case summary?

 

The order from the court onlyu stated that the Claimangt need to do it (I haven't seen it though) but i thought just in case, i better do one too but don't know how to start. Help please....

 

Sorry. I got more question relating to NOA.

 

What is the consequence of not complying to S136 & S196 of the Law of Property Act ?

 

 

Help anybody with these 2 queries please...

[42man]

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 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.

 

2.3 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.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the claim, and therefore any assignment has not been perfected in law.

[42man]

Law Of Property - s136 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

Rights and Duties

CCA74 s189(1)

“ creditor “ means the person providing credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement, includes the prospective creditor;

[pt2537]

Help anybody with these 2 queries please...

Zhan you have mail:wink:

 

Non compliance with the LOP means that the assignment is equitable only, if the notice of assignment itself is defective then the assignment is bad and the case cannot continue as the DCA does not have sufficient standing on their own.

 

If the assignment falls into equity then the DCA needs the original creditor to sue you

 

there is case law on defective assignments by misstated terms, the leading case is Harrison and Burke

[zhanzhibar]

Zhan you have mail:wink:

Thanks for both cases Paul

 

Non compliance with the LOP means that the assignment is equitable only, if the notice of assignment itself is defective then the assignment is bad and the case cannot continue as the DCA does not have sufficient standing on their own.

If the assignment falls into equity then the DCA needs the original creditor to sue you

 

1) What does "equitable" mean?

2) Is there a standard format of how a NOA should look like & therefore non-compliance of NOA to this format should make it defective?

[zhanzhibar]

Oh no.. I am in panic mode now. Just called the court & asked if they have submitted a case summary & the court said that yes AL filed it on the 26th March.

I told the lady from the court that I didn't receive a copy eventhough its there in the order that it need to be filed & served which from what Steven said in earlier post that by served means they have to send it to me too.

 

What do i do now as i do not know what is in there?

[zhanzhibar]

Thanks for both cases Paul

 

 

 

1) What does "equitable" mean?

2) Is there a standard format of how a NOA should look like & therefore non-compliance of NOA to this format should make it defective?

 

Oh no.. I am in panic mode now. Just called the court & asked if they have submitted a case summary & the court said that yes AL filed it on the 26th March.

I told the lady from the court that I didn't receive a copy eventhough its there in the order that it need to be filed & served which from what Steven said in earlier post that by served means they have to send it to me too.

 

What do i do now as i do not know what is in there?

 

 

Sorry about this but URGENt advice is needed for the queries above. Got the CMC at 3 this afternoon & I am a bit panicky now that they have sent sthg I have not seen:confused:

[semyaza]

Hi. I can only say what has happened with myself and others who have dealt with Link but they should be a push over when you stick to the lack of NoA. I have recently won against Link although the debt is going back to original creditor. They too filed stuff late and I never saw it until the morning of the hearing. The Judge was not happy with the solicitor for this so it was adjourned to allow me time to look through the new stuff they filed. Costs were reserved, in fact he said I wouldn't be liable as they hadn't sent the information.

 

I can only say yes it is highly stressful but you look like you are in the same position so just keep re-enforcing the lack of NoA. Without it they have no chance.

 

But then there maybe this to look forward to http://www.consumeractiongroup.co.uk/forum/legal-issues/191761-link-debt-sold-back.html

[zhanzhibar]

Gosh. I got butterflies in my stomach. I just received this literally 10 minutes ago

 

 

 

Its a bit late to prepare any response to this? Now what do i do?

[semyaza]

Is this from Link? If so you should recieve this 14 days before the hearing to allow you time to respond. The Judge should look badly upon this from the solicitors and adjourn the hearing. This is unfair and I guess the phrase is vexatious to the defendant.

 

I can only speak personally and not professionally as I have relied on help from the boffins here.

 

I also know what those butterflies are like...dry mouth too!

[zhanzhibar]

Off to the court now. Will tell you all about it later.....

[semyaza]

Hi,

 

really anxious to hear how you got on. Been nervous for you all afternoon!

[pt2537]

any news zhan?

[zhanzhibar]

Hiya all,

 

Sorry for being a bit late in telling the tale of my court appearance today. I think I am just feeling a bit drain & perplexed by what's just happened today & last Wednesday.

 

As I have never been to a case management conference before, I was preparing myself just in case I got DDJ Joseph again (who dealt with my Amex case last Wednesday & had a go at me for moral issue & also not recognising that AMex DN is invalid hence agreement unenforceable!).

 

Anyway, arrived early at the court & a Mr Park is acting as Asset Link agent came to see me & said he hasn't got much detailed on the case. He asked when the claim started etc..etc... he seem quite nice so i told him. He did say that the claimant agreed for the case to be in small claim which what i want. I said I am not happy that I only got the case summary 2 hours ago. He said take it to the judge.

 

3 pm came & we went in. I give a letter of apology from OH to the DDJ Downturn (quite a nice guy compared to DDJ Joseph) as OH can't attend the hearing. As it is a case management conference he said is there anything I want to say?

 

Welll I grab the opportunity this time by saying that in the case summary, the Claimant said they have provided me with Notice of Assignment. I said I deny that the Notice of Assignment as required by s136 of the LOP has been received .I said to the judge under S136, the assignor need to send me the a Notice Of Assignment & what the Claimant send is not a NOA. I showed the judge & the agent an extract of the S136 & S196 as attached here. I also showed him the "NOA" that the Claimant said they have given to me. The judge had a read of the extract & then said he can't see where it says in that extract that the assignor has to give the NOA so he said what the Claimant has given is OK & that I am not going to go anywhere with this. Welll! there goes my 1st point of defense...I was really shocked that he did not consider that s136 is relevant to determine that the assignment is not compliance to LOP.

 

May be I didn't say it the right way lawyers will do & hence got a bit stuck there. I then said if what the claimant said is a NOA then they should have send it registered to me as stated under s196 to which the judge said he will have to have to look into that as he doesn't know.

 

I then went to my next point about the need of the Notice of Cancellation right as part of the agreement. I quote Moorhouse Services V kabir 1995. He accepted what i said but he didn't ask the agent to submit a Notice of cancellation rights to me.

 

I also complain to the judge that the Claimant has twice not comply to the court Order. One being late in submitting their AQ & then not serving me the case summary until 2 hour ago !

 

After all that, the judge said that I should do an amended defense & asked me how long it will take me to do an amended defense? Bearing in mind I have Amex amended defensed to submit by the 8th, i said 28 days.

 

So the judge said that i should file & serve an amended defense by 4 pm 27th April and then by 26th May both parties to submit a witness statement, all documents and any law case to be relied upon.

 

He admitted that he is not prepared for me to bring up law cases and argue the points in the case summary. He said that whatever i said here can be included in the amended defense although he kinda said that to him the NOA s136 did not carry much wieght.

 

He did comment on my knowledge of the law & all i said I learn it from websites...perhaps where i live they don't know yet about this special website:wink:

 

There goes folks. I am beginning to feel that I might not be able to convince the court that the Claimant did not has the right to sue me & that the agreement is unenforceable due to lack of notice of cancellation rights even though Moorhouse Services V Kabir specifically said so.

 

Zhan

Notice of Assignment s136.doc

[semyaza]

Ok it's not a brilliant result. I went 3 times before it was finally discontinued.

 

But keep your hopes up as that lack of NoA is crucial. I am sure Paul or others will help more. Also cancellation rights are another one. This was my fall back and the Judge acknowledged that.

 

It seems some Judges just don't seem to read what is given to them properly. I'm in Plymouth and I thought we were behind the rest of the country but the 2 judges I had were pretty good and seemed to despise DCA's, lol!

[humbleman]

Hiya all,

 

 

 

Welll I grab the opportunity this time by saying that in the case summary, the Claimant said they have provided me with Notice of Assignment. I said I deny that the Notice of Assignment as required by s136 of the LOP has been received .I said to the judge under S136, the assignor need to send me the a Notice Of Assignment & what the Claimant send is not a NOA. I showed the judge & the agent an extract of the S136 & S196 as attached here. I also showed him the "NOA" that the Claimant said they have given to me. The judge had a read of the extract & then said he can't see where it says in that extract that the assignor has to give the NOA so he said what the Claimant has given is OK & that I am not going to go anywhere with this. Welll! there goes my 1st point of defense...I was really shocked that he did not consider that s136 is relevant to determine that the assignment is not compliance to LOP.

 

 

 

If you think this is bad look at this Micheal Jackson Bad

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/130101-humbleman-hfc-weightmans-court-8.html#post2040923

[car2403]

This DDJ is wrong - s.136 says a NoA should be sent, although it doesn't say who should send it admittedley, but that doesn't mean they get away without one.

 

I can't believe he didn't order them to disclose it.

[zhanzhibar]

Welll I grab the opportunity this time by saying that in the case summary, the Claimant said they have provided me with Notice of Assignment. I said I deny that the Notice of Assignment as required by s136 of the LOP has been received .I said to the judge under S136, the assignor need to send me the a Notice Of Assignment & what the Claimant send is not a NOA. I showed the judge & the agent an extract of the S136 & S196 as attached here. I also showed him the "NOA" that the Claimant said they have given to me. The judge had a read of the extract & then said he can't see where it says in that extract that the assignor has to give the NOA so he said what the Claimant has given is OK & that I am not going to go anywhere with this. Welll! there goes my 1st point of defense...I was really shocked that he did not consider that s136 is relevant to determine that the assignment is not compliance to LOP.

 

May be I didn't say it the right way lawyers will do & hence got a bit stuck there. I then said if what the claimant said is a NOA then they should have send it registered to me as stated under s196 to which the judge said he will have to have to look into that as he doesn't know.

 

This DDJ is wrong - s.136 says a NoA should be sent, although it doesn't say who should send it admittedley, but that doesn't mean they get away without one.

 

I can't believe he didn't order them to disclose it.

 

 

Hi all,

 

Have been preparing my amended defense for this case. My key points initially were:

1) NOA not send by assignor under S136 of LOP

2) NOA not send via registered post under LOP (can't remember what section)

3) No notice of cancellation (moorhouse services V kabir 1995 CA)

 

Since DDJ Downturn has squashed my 1st point by saying that s136 does not say that the assignor has to send the NOA .... I am on a very very thin ice here. The only other major defense I got is the Notice of cancellation.

 

I am a bit concerned that I can't argue this case strongly & would really appreciate any help whatsoever.

 

I need some more backup about s136 & how they are not entitled to this debt but I don't know how to go about arguing this. Paul (pt2357) has kindly give me a case

W F Harrison & Co Ltd v Burke and another

but i don't know how to use it........any help much appreciated please.

thanks

 

zhan

[zhanzhibar]

Hi all,

 

Having read a lot of threads & posts regarding Notice of ssignments & deed of assignment last night, i went & check all my papers with Link.

 

Now here's what I've just discovered having ploughed through all those paperworks with Links last night.

 

It looked like I have received 2 Notice of assignment from Link:

 

1) dated 29th August 2007 with no stated balance (this is also the copy they included in their AQ & also what they sent to me in reply to my defence)

 

2) dated 6th October 2008 with balance statedat £5173( which included in that balance a couple of hundred of charges)

 

 

Here's my questions, if somebody could help with these:

 

a) Would these NOA with different dates make any difference and can help me with my amended defense?

Having read the case W F Harrison & Co Ltd V burke and another 1956 All ER 169, looks like date on NOA does matter & would be invalid if it is earlier than the DOA. Now since I don't have the DOA to ensure that the date of NOA was sent after the DOA date, what do I do? Can I ask this in my amended defense? Have i got the right to ask this info as i believe (having read some posts here) that there is no legal requirement for them to provide me with one even though i did ask it in my AQ. However, saying that, can somebody confirm that since I sent a CPR31.14 request then therefore they have to provide me a copy of the DOA for me to get my defence properly.

 

b) Since Link themselves submitted to the court in their AQ the copy of the NOA dated 29th August 2007 i.e the one without the balance stated, does this mean that the NOA is inaccurate under S136 (1) of the LOP as stated by Denning LJ in his judgement in W F Harrison & Co Ltd V burke and another 1956 All ER 169? What do you all think?

 

c) As stated above the balance of £5173.20 include a couple of hundred pounds of charges (£290 to be exact although there is another £75 acceptance fee that was stated in the agreement that I didn't include in the £290). Again, having read some posts last night, am I right in thinking that if there is some charges that is deemed to be invalid (how do I prove this?I did ask the justification of the charges in the AQ but got no reply) included in the amount stated in the NOA, then the NOA is invalid.

If this is the case, Can somebody tell me which regs or Act does this come from?

 

 

Help please ...anybody?

 

Zhan

 

 

 

 

 

 

 

 

Edited April 22, 2009 by zhanzhibar
delete account at the top of the letter

[zhanzhibar]

Sorry but I got another question. In both letters above it stated that the assignment was for "the benefit" of the debt. What does this mean?

 

I read somewhere last night that it means that it is only the equitable assignment/debt (not sure which one is the correct one to use ) that was transferred to and not the absolute assignment and if that is the case then they can't ake me to court. Is this right?

 

Also, how can one know when one is served with a NOA which was an absolute assignment?

 

Can anybody help please?

[zhanzhibar]

Help please anybody...