National Hunt Credit Card/Bank One now HBOS - eversheds SD

[airtomoreira]

Well, I've already, in a previous letter to me from the Sols, been advised that I have been sent a NoA under the terms of the Law of Property Act 1925 (?) - not sure of the exact details, as I don't have the letter with me.....but if the Sols are saying that an NoA was necessary to comply with the Law, then who am I to argue!

[nicklea]

Well, in that case..

 

Assignment of the Alleged Debt

 

1) I submit that any alleged assignment of this debt to the Respondant, [put BOS name in here spelt the same as it is on the SD], is ineffective and so the Respondant has no standing before the court.

 

2) 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).

 

3) For the assignment of a debt to be effective and so giving the Respondant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before court action is commenced. It is denied that any notice of assignment was sufficiently served on me and so the Respondant has no right of action.

 

4) Notwithstanding the above, for a Notice of Assignment to be effective, explicit notice of assignment must be given by writing under the hand of the assignor (s136(1) ). I further deny that any document given under the hand of the Assignor, [put the name of the original creditor as mentioned by the solicitor's letter here], was sufficiently served on me.

[airtomoreira]

Thanks Nicklea, your last post reflects quite accurately what I have included in my Set Aside application - as one of the reasons why the SD should be thrown out.

[airtomoreira]

Am currently waiting to hear from the local County Court about my recent SD Set Aside application. I wish to be prepared for all eventualities, so would like to know what happens if either a) a hearing is refused on the grounds that my Set Aside application is not worth the paper it's written on, or b) a hearing is granted, but at that hearing my Set Aside application is refused

 

As I understand it, this would give the creditor the right to petition for Bankruptcy. Leaving aside the question of whether in practice this would actually be done as it would not be financially in the creditor's interest to do so, what I would like to know is:

 

a) Can this be done immediately, or is there any period of time which must elapse between the refusal of the Set Aside Application and the lodging of the Bankruptcy petition?

b) If the Set Aside Application were refused, and I could reduce the debt to below £750 immediately (or at least before a Bankruptcy petition was presented to the Court), presumably that would remove the threat of Bankruptcy?

c) If I could reduce the debt to below £750 after the date of the lodging of the Bankruptcy petition, but before the date of the hearing, would this make the petition null and void, or would it be too late to stop proceedings ?

 

Answers to a) b) and c) would be most welcome!

[42man]

I wouldn't think about this now....you would get another chance to fight at BR proceedings.....

[airtomoreira]

Sorry, but I'd like to think about it now, which is why I asked the question!! Can anyone give me the answers to the questions I asked??

[42man]

a) Can this be done immediately, or is there any period of time which must elapse between the refusal of the Set Aside Application and the lodging of the Bankruptcy petition? - they can do it anytime if your set aside fails but there is a time limit - something like 3 months....

b) If the Set Aside Application were refused, and I could reduce the debt to below £750 immediately (or at least before a Bankruptcy petition was presented to the Court), presumably that would remove the threat of Bankruptcy? - Yes, but they may add significant costs to this such as the cost of petitioning, solicitors fees....

c) If I could reduce the debt to below £750 after the date of the lodging of the Bankruptcy petition, but before the date of the hearing, would this make the petition null and void, or would it be too late to stop proceedings ? - If you were to reduce the amount before the hearing, then the judge would dismiss as it would be below the threshold....

[airtomoreira]

Thank you 42man

[airtomoreira]

ok, bttt. I now have a date from The County Court for a hearing for my Set Aside application, which is based, amongst other things, on a) no issue of a Default Notice, and b) no receipt by me of a Notice of Assignment.

 

Should I now approach the Solicitors who are taking this action, and ask them to produce evidence of a) and b) having happened - am I entitled to ask for this, or do I have to turn up at Court not knowing if they have followed procedures correctly or not?

[airtomoreira]

bttt

[42man]

You must turn up at court (did you ever send a SAR to the original creditor)....what you could do is argue your points in front of a judge, your affadavit would make it clear...then if the judge doesn't set aside, then you could ask the judge to ORDER the other side to produce the documents....especially proof of service of the default notice....

[airtomoreira]

Don't worry, I will attend court! (No, I have not SAR'd them, only CCA'd them to produce the original agreement, which they did)

 

But do I take it from your reply that there is no obligation on the part of the other side to produce evidence that the DN and NoA were served on me correctly, even though in my Set Aside applictation I am putting them to "strict proof" to produce evidence to this effect?

[42man]

2 -Perfection of the assignment.

 

2.1. 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”.

 

2.2 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 bankruptcy petition, and therefore any assignment was not perfected in law at the time the bankruptcy petition was granted.

DEFAULT NOTICE

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

• It is 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
  

• Notwithstanding the above points, 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)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• 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
  

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

[airtomoreira]

42man, I understand all that, and what you've just posted is the basis for my argument that the SD should be set aside. What confuses me however is your post No.71. You seem to be indicating that there is no obligation for the other side to produce evidence that they have correctly served a DN and NoA on me, and that if they don't, then I need to ask the judge to order the other side to produce the documents. I thought that the purpose of the hearing is to see evidence of these documents - and if they can't be produced on the day, should the SD should be thrown out?

 

You seem to be saying that there's a chance that the judge could find against me, even if the DN and / or the NoA can't be produced, and it's up to me to remind him of the law if he takes that position?

[sams88]

Hi, just found this link, I am about to send dispute letter to Robinson Way, however I have been making payments to them???????????? Unsure of what to do!!!!!!!

[PGH7447]

Hi Sams88 probably best to start a new thread and explain what you have done so far, the post above is a bit ambigous

[sams88]

Hi PGH7447, you have kindly sent me the letter on my thread which must have crossed with the message i put here!!