zhanzhibar vs Link financial ***WON***

[batman1956]

Could be wrong here but section 15 of their witness statement looks dodgy. They refer to all documents being delivered by regular post. Could someone confirm that a default notice should be either hand delivered or signed for otherwise it has not been delivered in the prescribed form.

[ScarletPimpernel]

Their definition of a registered letter is risible and seems designed to mislead.

 

I cannot find any reference to their definition, but plenty to the commonly-understood definition, such as here.

[batman1956]

The point that I am trying to make is that if the default notice is not delivered in the proper prescribed format them it is not a valid default notice and if this is the case then Link have put another nail in their own coffin.

[semyaza]

If this helps, I can only speak from experience so please get proper backup on this as I always simplify it; but so far the Judges seem to work backwards on these cases and work out if the debt has been assigned first. As without this the claimant can't own a debt. I have been told this so far by 3 different Judges who seem to be very clued up on consumer law. I understand this seems to be different around the country though :-/

 

You have a typical Asset sale of debt letter which does not constitute a properly executed Notice of Assignment. As we know must be sent from the original creditor (First National/GE Money) and a signature required. In the two claims against me this has gone against the claimant and have been struck out.

 

The next step would be the default notice. The DN doesn't have to be sent recorded in anyway from what I can work out. Also from what I could tell the Judge in my case wasn't really interested in the exact layout of the DN. If it has the words as laid out then that seemed sufficient enough for him.

 

The CCA would only be used as a last resort because as we know if the original creditor has sold on the debt and canceled the agreement then the reliance on a CCA is irrelevant.

 

So that is my simplified view and I understand some Judges don't seem to be clued up on this but a helpful defence pointing out relevant case law will help them out.

[steven4064]

You are right semyaza.

 

Putting it another way. The claimant must demonstrate certain things:

 

1. that they have the right to bring the claim, and that means

(a) they own the debt (requires NoA if they are not the original creditor)

(b) that the CCA requirements have been complied with (requires a valid DN)

 

2. that the claim is against the right person (requires CCA)

 

3. that the amount of the claim is correct (requires CCA and statament of account)

[nicklea]

Hi zhan,

 

With reference to para 15 of their stiness statement you'll need to make sure that you emphasise to the judge that while, yes, it is s136 that says notice has to be given that it's actually s196 that prescribes the requirements for giving sufficient notice and that they have admitted several times in their witness statement that they only sent it by first class post - so as long as you do not admit that you received it before proceedings commenced then they don't have a leg to stand on

 

However, where batman refers to the DN in the post above, I believe that he is actually thinking of the noa as the DN does not have to be served by registered post

[zhanzhibar]

Hi all,

 

I need some guidance on several issues pls. At the moment everything is a bit muddled up in my head!

 

A) The Notice of assignment is in respect of the "modified" agreement where it clearly stated

"THIS AGREEMENT VARIES AND/OR SUPPLEMENTS A CREDIT AGREEMENT REGULATED BY CCA1974. SIGN IT ONLY IF YOU WANT TO BE LEGALLY BOUND BY THE NEW TERMS"

. I never sign this & I also sent a letter specifically stating that I am not accepting it after the advised by the the Debt Counselling people. At the bottom of the page of the modified agreement also state

Save as set out above, the information on the front page of the earlier agreement, including the cash price of any goods or services financed by it, and the T & Cs on the second page of thed earlier agreement remain unchanged

 

So question is now whether this agreement that was assigned to them is in breach of Section 61(1), section 65(1) and Section 127(3)??

 

B) For the above to be a modifying agreement, there must be an originaal enforceable agreement capable of being modified. Below is where my confusion lies.

 

Below is their exhibit SRT7 stated as evidence for para 24 in their WS Which basically saying that this is the copy i should have had when signing the original agreement at home ( i.e. the unexecuted agreement as the creditor hasn't sign it yet)

 

 

Having give the Consumer Credit (Cancellation Notices & copies of Documents) Regulation 1983 a once over...( not that I understand any of it )

5 Copies of cancellable unexecuted and executed agreements

(1) Every copy of a cancellable unexecuted agreement delivered or sent to a debtor or hirer under section 62 of the Act

or of a cancellable executed agreement delivered to him under section 63(1) of the Act shall include a box containing

only a notice indicating the right of the debtor or hirer to cancel the agreement, and how and when that right is

exercisable, in the Form numbered in Column 1 in Part II of the Schedule to these Regulations and set out in Column 3

appropriate to the type of agreement referred to in Column 2, instead of any statement of the rights of the debtor or hirer

referred to in Regulations 2(3) and 3(3) of, and [Forms 4 to 6] of Schedule 2 and [Forms 4 and 5] of Schedule 4 to, the

Agreements Regulations.

 

(2) Every copy of a cancellable executed agreement sent [by an appropriate method] to the debtor or hirer under

section 63(2) of the Act within the seven days following the making of the agreement or under section 63(4) shall

include--

 

(a) a box containing only a notice indicating the right of the debtor or hirer to cancel the agreement, and how and

when that right is exercisable, in the Form numbered in Column 1 in Part III of the Schedule to these Regulations and

set out in Column 3 appropriate to the type of agreement referred to in Column 2, instead of any statement of the rights

of the debtor or hirer referred to in Regulations 2(3) and 3(3) of, and [Forms 4 to 6] of Schedule 2 and [Forms 4 and 5]

of Schedule 4 to, the Agreements Regulations; and

 

(b) a Cancellation Form which shall be in the Form specified in Part IV of the Schedule.

6 Notices of cancellation rights sent by post under section 64(1)(b) or (2) of the Act

Any notice which indicates the right of the debtor or hirer to cancel a cancellable agreement, and how and when that right

is exercisable, and which is sent [by an appropriate method] to the debtor or hirer under section 64(1)(b) of the Act within

the seven days following the making of the agreement or under section 64(2), shall be--

(a) in the Form numbered in Column 1 in Part VI of the Schedule to these Regulations and set out in Column 3

appropriate to the type of agreement referred to in Column 2; and

(b) on a single sheet of paper, and

(i) if the notice is entirely on one side of the paper, the Cancellation Form forming part of that notice shall be on

that side; or

(ii) if the notice is continued on the back of the paper, the symbol and word "/over" shall be shown below that

part of the text which appears on the front of the paper.

 

Here goes the scenario, I sign the agreement on the 14/04/05 at home(the blank copy above means that they have complied to the Consumer credit( cancellation....) 1983 Section 5(1). The creditor then signed it on the 21/04/05. I have never seen this copy of the executed agreement until this proceeding although para 8 of their WS stated "the copy of the executed agreement with further cancellation rights set out in the prescribed form" wasv sent to me.

 

Questions then:

 

1) Am i right in thinking that under section 63(2) CCA 1974 they should supply me with the executed agreement and of any other documents referred to within 7 days following the making of the agreement i.e when the creditor signed tthe agreement on the 21/04/05 to which it became executed agreement. Since this is a cancellable agreement therefore Section 64(1) of CCA 1974 - duty to give notice of cancellation rights in the prescribed form applies right?

 

2) Am I also right in thinking that by prescribed form it is the notice of cancellation rights as stated under Section 5(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 stated above applies. What do you all think?

 

3) Also , as this is a cancellable agreement therefore section 68 of CCA 1974 (cooling off period) applies right?

 

So since I have not received any copy of the executed agreement (Section 63(2) CCA 1974), notice of cancellation (Section 64(1) CCA 1974) and the cancellation form (Section 5(2) (a) & (b)), so the original agreement is not enforceable under s127(4) (a) & (b), am i right?

 

C) If you all think the above is correct, how do I include these in my Witness statement as I have submitted my WS on the 26th May & only found out about these last night? What do you all think I should do?

 

Any advice is very much appreciated.

 

[steven4064]

Firstly, the agreement you have posted above would be enforceable if it was filled in and signed - which it clearly isn't - it is not enforceable. It may well be the agreement you would have signed but it is not the agreement you did sign. To have a case, they need to produce that.

 

Your questions:

 

1) under s63 they should have sent detailes of your cancellation rights within 7 days if they were not included in the copy of the agreement you kept after you signed it (by and large, there may be a couple of exceptions to that)

 

2) The prescribed form is in the Consumer Credit (Agreements) regulations 1983 - the ones on the above 'agreement' seem OK to me

 

3) Yes

 

If the agreement posted here is the one you signed, then I think they have complied with s63 and therefore it is not unenforceable undr s127(4). However, as ity stands, it is not enforceable by virtue of s127(3)

[zhanzhibar]

Hi steven

 

Firstly, the agreement you have posted above would be enforceable if it was filled in and signed - which it clearly isn't - it is not enforceable. It may well be the agreement you would have signed but it is not the agreement you did sign. To have a case, they need to produce that. Ok. Thanks for this info. I can use this.

 

Your questions:

 

1) under s63 they should have sent detailes of your cancellation rights within 7 days if they were not included in the copy of the agreement you kept after you signed it (by and large, there may be a couple of exceptions to that)Sorry about this but not sure I understand you here Steven.I signed the agreement on 14/04/05 at home (Section 62(1)CCA 1974) & then the agent went away & passed the half executed agreement to the creditor who then sign it on the 21/04/05. So on that date 21/04/05, am i right in thinking the agreement is properly executed under s61(1). Section 63(2) state that a copy of the executed agreement and of any oth doc referred to in it must be given to the debtor within 7 days following the making of the agreement ..... Section 63(3) state that in the case of a cancellable agreement, a copy under subsection (2) must be sent by post . So am i right in thinking that I should have received the copy of the properly executed agreement together with cancellation notice within 7 days following the 21/04/05 as that is the date the agreement became an executed regulated agreement and it should be sent by post.

 

2) The prescribed form is in the Consumer Credit (Agreements) regulations 1983 - the ones on the above 'agreement' seem OK to me

Again just for clarification, having read the CC(cancellation notice & copies of document) I thought the prescribed form of notice of cancellation is in this reg? If it is in the CC (Agreement) regs 1983, can you let me know where pls so I can chk what's need to be in it?

 

 

3) Yes

Section 68 state the debtor may serve notice of cancellation of a cancellable agreemnt btwn his signing of the unexecuted agreement and -

(a) the end of the 5th day following the day on which he received a copy under section 63(2) or a notice under section 64(1) (b) ....

 

since they never actually sent a copy of the executed agreement (I have never seen the copy of the executed agreement until this proceeding) or any notice of cancellation within 7 days after 21/04/05, at that period before the window was installed, I was left without the benefit of Section 68. What would be the consequent of this?

 

If the agreement posted here is the one you signed, then I think they have complied with s63 and therefore it is not unenforceable undr s127(4). Sorry but a bit confused here, so need some clarification. I thought because they didn't comply to S63(2) & S63(3) as well as section 64(1) then that that's why it is unenforceable under s127(4)?

 

However, as ity stands, it is not enforceable by virtue of s127(3)

 

Having asked all the above I am wondering whether you have any advice in regards to my question (A) in the earlier post?

 

Zhan

Edited June 23, 2009 by zhanzhibar

[semyaza]

Was about to re-iterate about the NoA then had a look through this entire thread again. I forgot I had replied earlier.

 

I don't understand why the Judge(s) are not looking at the lack of the NoA. This is the only real bit of the puzzle that can help the most here.

 

Is there no way to push this point through? At worst it will put the debt back to the original creditor and out of the hands of A/L, as in Grumlin's case and possibly mine in a few months.

[steven4064]

Zhanzh

 

Regarding post #159

 

Q1 - you are right, I was getting confused. In the situation you mention, they sgould have sent a copy of the executed agreement within 7 days.

 

Q2 - It's in schedule 2

 

Q3 - THe CCA is quite clear - if the requirements of ss 63 and 64 are not met, then the agreement is not properly executed. This has the same consequences as s61 not being met, ie it can only be enforced via s65, ie by a court. In this case, s127 comes into play

 

last point - I don't think so. The fact that you were not sent a copy right at the start means the agreement is not properly executed and therefore can only be enforced by a court. The court will then look to see if the basic requirements of the 'bottom line' contained in s127 apply. The bottom line is a single document with your signature, the prescribed terms and your cancellation rights. THere is no requirement for anything else, in particular, no requiement that you should have been sent a copy at any particular time. The assumption is that you agreed to it by signing it.

 

On 'A' - if you never sgned it, it is not a valid agreement. It is up to them to prove that you didi sign it.

[zhanzhibar]

Thanks Steven for the above & thank you all for the advice so far. I do need all the advice I can get. I will definitely use Grumlin point about BACS being non-profit org so why the extensive charge.

 

I have further queries I am afraid.

 

Para 29-32 in their WS:

 

29. That the agreement is in breach of section 64 Consumer Credit Act 1974

 

30. The Claimant cannot accept this allegation as valid. In the first instance the Customers' copy of the unexecuted Credit Agreement held, in addition to the "your right to cancel" section upon the front of the credit agreement, cancellation rights in the prescribed form upon the reverse in place of the DD mandate upon the original creditors copy. The Defendant did not make use of these "SRT-8", copy blank CRedit agreement forms containing the relevant cancellation forms.

 

31. When the executed CRedit Agreement was provided to the Defendant so tooi was the exact same cancellation form in compliance with section 64 of CCA 1974, obviously givbing th edefendant the statutory period of cancellation from the date of receipt. This form contained the adr..... to be returned to & how & why to complte the form.

 

Here is SRT-8:

 

 

Questions:

 

1)Apart from giving out as evidence SRT 7 (which is a blank copy) although I must have got it s'where as I have admitted to signing it at home, they also said I should have had SRt 8 above after the executed agreement & I chose not to use it. I don't I ever receive any such document but I don't know hoow to defend it esp at the end of para 42 of their WS they stated,

 

For the avoidance of doubt the Claimant would aver that service of all the documents referred to above in this Witness Statement, in respect of the executed CRedit Agreement, Default Notice, Calling in Notice, Notice of Assignment et al, was regular as set out at section 176(2) CCA 1974 and 196(4) Law of Property Act 1925. As set out in these sections, the test is simply to establish service of the document as supposed to receipt of the document by the Defendant. As identified, the precedent establishing gthis to be the case is that of Lombard north central v Power-Hines 1995.

 

Is there any case law for me to use to prove that I never got this copy after the agreement is properly executed by the creditor?

 

2)SRT-7 ( in post 157) & SRT-8 above are both blank copies.But the more important question is both copies are blank, no reference to my name. The only copy of agreement that they produced in court that have my name on it is the one where the box stated;

YOUR RIGHTS TO CANCEL

Once you have signed this agreement, you will have for s ahort time a right to cancel it. Exact details of how & when you can do thiswill be sent to you by post by the creditors.

 

So am i right in thinking that they might say I have SRT7 or SRT8 but unless there is my name & my signature on those copies, the only relevant copy that should be debate in court is the 1st copy which have my name on it & that copy did not comply to section 64, right? i.e they have to proof that there is a copy of SRT7 & SRT8 that got my name on it?

 

 

3)

Zhanzh

On 'A' - if you never sgned it, it is not a valid agreement. It is up to them to prove that you didi sign it.

Even if it is for a "modified" agreement?

[zhanzhibar]

Polite bump pls..

[matsinlondon]

Am sure others will have advice on the detail of the issues above but one point they are pushing and I cannot see succeeding is the argument that service of a document is effectively posting it. They argue that receipt by you is different to service. I'm sure there is case law that would help somewhere but just in terms of the definition of service and the common use of english language it is a fairly common term to include in legal agreements that a document 'is deemed to be served' x number of days after posting. For a document to be served it must be served upon an individual or body corporate.

[nicklea]

For the avoidance of doubt the Claimant would aver that service of all the documents referred to above in this Witness Statement, in respect of the executed CRedit Agreement, Default Notice, Calling in Notice, Notice of Assignment et al, was regular as set out at section 176(2) CCA 1974 and 196(4) Law of Property Act 1925. As set out in these sections, the test is simply to establish service of the document as supposed to receipt of the document by the Defendant. As identified, the precedent establishing gthis to be the case is that of Lombard north central v Power-Hines 1995.

 

What they say about the agreement and default noticeis correct

 

However, what they say about the noa is not quite right. Unless you have admitted receiving notice then they have to establish that they either served it on you personally or that it was sent by a registered postal service and that the letter was not returned undelivered.

 

I would suggest that they would need a copy of the recorded delivery receipt and confirmation from Royal Mail that it was delivered (ie they got a signature) otherwise I would suggest that they cannot prove that the letter was not returned undelivered.

 

 

Am sure others will have advice on the detail of the issues above but one point they are pushing and I cannot see succeeding is the argument that service of a document is effectively posting it. They argue that receipt by you is different to service. I'm sure there is case law that would help somewhere

 

matsinlondon,

 

I'm afraid that you're wrong on this one. It is clearly stated in the Interpretation Act that service is effected by posting a letter not receiving it. There's also lots of case law to back this up. (Incidentally, I managed to defend myself in a case using this).

 

The difference with the noa is that the act specifically states that notice must be by a registered postal service and that the letter is not returned undelivered.

[nicklea]

Here's the relevant bit from the Intterpreatation Act:-

 

7. References to service by post.

 

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

 

 

The important bit is "unless the contrary intention appears" which means that s196 of the Lop overrides this

[zhanzhibar]

[/i]What they say about the agreement and default noticeis correct

 

However, what they say about the noa is not quite right. Unless you have admitted receiving notice then they have to establish that they either served it on you personally or that it was sent by a registered postal service and that the letter was not returned undelivered.

 

I would suggest that they would need a copy of the recorded delivery receipt and confirmation from Royal Mail that it was delivered (ie they got a signature) otherwise I would suggest that they cannot prove that the letter was not returned undelivered.

 

 

Unfortunately for me I have admitted recept of the NoA. So i can't use the defend point using the s196 can I?

 

In regards to all other letters, if what they say is hold in court, how do I defend myself saying that I never received the executed agreement together with the cancellation form?

 

The other key thing i want to ask everybody is that the unexecuted & the executed agreement (with cancellation form) they produce as part of their WS that they say i should have are all blank copies. There is another copy of the agreement they brought into the proceeding & that copy that sigantures on it but there is no cancellation form as legally required.

 

So am i right in thinking that yes I may have signed the cpy with the cancellation form & yes they may have sent it to me within 7 days after the creditor executed the agreement but unless the copy they produce in court have my name & signature on it, they can't actually say I should have a copy & that it is mine?

 

Would apprecaite any help on this as I am preparing for the trial on the 2nd July.

[MAGDA]

Unfortunately for me I have admitted recept of the NoA. So i can't use the defend point using the s196 can I?

 

In regards to all other letters, if what they say is hold in court, how do I defend myself saying that I never received the executed agreement together with the cancellation form?

 

The other key thing i want to ask everybody is that the unexecuted & the executed agreement (with cancellation form) they produce as part of their WS that they say i should have are all blank copies. There is another copy of the agreement they brought into the proceeding & that copy that sigantures on it but there is no cancellation form as legally required.

 

So am i right in thinking that yes I may have signed the cpy with the cancellation form & yes they may have sent it to me within 7 days after the creditor executed the agreement but unless the copy they produce in court have my name & signature on it, they can't actually say I should have a copy & that it is mine?

 

Would apprecaite any help on this as I am preparing for the trial on the 2nd July.

 

Hi zhanzhibar, sorry to hear you are having problems with Link, I know how that feels, as I currently have problems with them as well. When did you admit receipt of the NoA, if you admitted receipt following commencement of proceedings then the following would apply:

 

for a Notice of Assignment to found a cause of action it must have been served before the commencement of the Proceedings. If you have not admitted receipt prior to proceedngs, then there is therefore no cause of action arising. They would then need to prove that they did indeed notify you in writing of the assignment by production of a recorded delivery receipt or details of the person who served the document on you.

 

Also, have you requested sight of the actual Assignment (DoA). If the date on this does not match the date on the NoA they claim to have served, then again the NoA would be ineffective. So it would be a good idea to push to see this also.

 

IMO zhanzhibar, the cancellation document would have to actually contain your details and a blank copy would not be sufficient, otherwise, it would be only to easy to say they had complied simply by producing copies of a generic form, which proves nothing. Hopefully someone else can confirm this.

 

Stick to your guns and I'm sure you will be fine in the end, Link try to intimidate and bully, but they are not that bright at the end of the day....

 

Magda

Edited June 27, 2009 by MAGDA

[humbleman]

Unfortunately for me I have admitted recept of the NoA. So i can't use the defend point using the s196 can I?

 

 

Does it comply with the LPA 1925

[zhanzhibar]

Does it comply with the LPA 1925

 

Humbleman, I am not sure what you mean. If you mean whether they sent the NoA via registered, then they didn't actually.It is just normal post delivery.

 

However, this is their reply in WS regarding NoA under s196:

 

 

43. The Defendants contend that section 196 Law of Property Act 1925 stipulates that for a notice of assignment to be legal, it must be served by registered letter which is akin to recorded delivery.

 

44. The Claimant believes that the Defendants are misguided in their interpretations. S196 actually makes no reference to the format of post but stipulates that the letter, within which the actual notice of assignemnt is contained, must be a registered letter. A registered letter is actually a letter that contains the registered office number of that company, along with the registered office address. The Claimant would refer the court to the notice of assignment exhibited SRT-5 and the fact that it contains both of these relevant provisions.

 

45. The Defendants make reference to registered post when the Act refers to a registered letter and we believe that this is where the misinterpretation has occurred. The Claimant maintains that the assignment is wholly regular and service has been affected correctly.

 

So I think I would have to concede tha they are right on this occasion.

[volvodriver]

43. The Defendants contend that section 196 Law of Property Act 1925 stipulates that for a notice of assignment to be legal, it must be served by registered letter which is akin to recorded delivery.

 

44. The Claimant believes that the Defendants are misguided in their interpretations. S196 actually makes no reference to the format of post but stipulates that the letter, within which the actual notice of assignemnt is contained, must be a registered letter. A registered letter is actually a letter that contains the registered office number of that company, along with the registered office address. The Claimant would refer the court to the notice of assignment exhibited SRT-5 and the fact that it contains both of these relevant provisions.

 

45. The Defendants make reference to registered post when the Act refers to a registered letter and we believe that this is where the misinterpretation has occurred. The Claimant maintains that the assignment is wholly regular and service has been affected correctly.

 

I'm not a legal expert, but I think that's utter carp.

 

Try getting that definition of a registered letter from google.

 

I think some one, shortly will come along with a nuclear option which will vapourise that lot of twaddle.

 

But I might be wrong.

[humbleman]

was it served by the original lender followed by the current lender with the correct details etc. if not then my attack would be as follows:

 

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 - 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 and the assignment must be in writing, signed by the assignor, absolute (not purporting to be by way of charge only) and notice in writing must be given to the other contracting party.

[MAGDA]

Hi, from what I have read on other threads, the NoA does not need to be issued by the OC. It makes no difference, the only stipulation is that the Debtor should be informed, either by the OC or the Assignee. Either way, if they have given notice of the assignment, then any NoA would be valid, regardless of who issued it. Also, if you have acknowledged service of the NoA (that you received it prior to commencement of proceedings, not after) then it makes no difference whether it was sent by registered post or not, as that becomes irrelevant;

 

Orignally posted by IGNM:

 

I think the problem that you may have is that you have now been given a copy of the NoA and if you write to the other side and confirm that you have received it, IMO, they would not be required to prove service by registered post as you would have acknowledged receipt.

 

I am not aware of any case where a defendant successfully argued that although s/he had received an NoA that the notice was invalid because it had not been served by registered post. My interpretation is that the whole purpose of the service provisions is so that service can be proved - if you have acknowledged receipt of a notice then IMO service has been proved.

 

Magda

[zhanzhibar]

Hi all,

 

thanks for the advice above. I don't think i have a strong defense to counter their argument regarding the NoA although I think the point they are making about registered letter is crap as volvo said.

 

This is what I wrote in my amended defense & my witness statement:

 

Extract from my amended defense:

6. It is not admitted that the alleged debt was lawfully assigned to the Claimant. This matter is outside the knowledge of the Defendants. The Claimant is put to strict proof that such alleged agreement was lawfully assigned and that sufficient notice thereof was served upon the Defendants. Without this proof the Claimant has no standing before the court.

 

7. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) ....requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

 

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—

 

Section 196(4) prescribes the requirements for giving sufficient notice by post:-

 

196. 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.

 

 

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

8. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on the Defendants using a registered postal service pursuant to s196(4) before court action was commenced. The Claimant is put to strict proof that any valid notice of assignment was sufficiently served on the Defendants. Without this proof, the Claimant has no right of action.

 

Extract from my witness statement:

 

 

19. We received letters dated 29th August 2007, allegedly the Notice of Assignment, through the normal postal system from the Claimant’s representative, Link Financial Ltd informing us that GE Money has assigned to them the benefit of the debt for credit agreement XXX001 (Exhibit SC11). As previously stated this agreement number was never entered into.

 

So as said earlier the validity of the NoA is not going to be my strongest defense although I might look into registered letter definition and have a go at them at that.

[zhanzhibar]

To the more important questions if anybody can confirm my queries below:

 

1) Para 42 of their WS

For the avoidance of doubt the Claimant would aver that service of all the documents referred to above in this Witness Statement, in respect of the executed CRedit Agreement, Default Notice, Calling in Notice, Notice of Assignment et al, was regular as set out at section 176(2) CCA 1974 and 196(4) Law of Property Act 1925. As set out in these sections, the test is simply to establish service of the document as supposed to receipt of the document by the Defendant. As identified, the precedent establishing gthis to be the case is that of Lombard north central v Power-Hines 1995.

 

Is there any case law for me to use to prove that I never got this copy after the agreement is properly executed by the creditor?

 

2)SRT-7 (in post 157) & SRT-8 (in post 162) above are both blank copies. There are no reference to my name. The only copy of agreement that they produced in court that have my name on it is the one where the box stated;

YOUR RIGHTS TO CANCEL

Once you have signed this agreement, you will have for s ahort time a right to cancel it. Exact details of how & when you can do thiswill be sent to you by post by the creditors.

 

So am i right in thinking that they might say I have SRT7 or SRT8 but unless there is my name & my signature on those copies, the only relevant copy that should be debate in court is the 1st copy which have my name on it & that copy did not comply to section 64, right? i.e they have to proof that there is a copy of SRT7 & SRT8 that got my name on it?

 

I know Magda mention sthg along this line & Steven too in replhy to my queries in post 157

 

Firstly, the agreement you have posted above would be enforceable if it was filled in and signed - which it clearly isn't - it is not enforceable. It may well be the agreement you would have signed but it is not the agreement you did sign. To have a case, they need to produce that.

 

So if I am correct ,whatever they need to use in court against me should have my name & signatures on it right?

 

 

3)This is my queryy from early on:

A) The Notice of assignment is in respect of the "modified" agreement where it clearly stated

Quote:

"THIS AGREEMENT VARIES AND/OR SUPPLEMENTS A CREDIT AGREEMENT REGULATED BY CCA1974. SIGN IT ONLY IF YOU WANT TO BE LEGALLY BOUND BY THE NEW TERMS"

. I never sign this & I also sent a letter specifically stating that I am not accepting it after the advised by the the Debt Counselling people. At the bottom of the page of the modified agreement also state

Quote:

Save as set out above, the information on the front page of the earlier agreement, including the cash price of any goods or services financed by it, and the T & Cs on the second page of thed earlier agreement remain unchanged

& the reply from steven is

Zhanzh

On 'A' - if you never sgned it, it is not a valid agreement. It is up to them to prove that you didi sign it.

 

So my query is whether it still stands for a "modified" agreement?