On the attack - and a pretty conclusive ***WIN***

[miffedpuppy]

I recived some while ago a letter from a DCA stating they had bought a debt.

I did the right thing and sent off a CCA request asking for a copy of the agreement ( standard CCA request from here).

 

As usual they did not reply, I then got a claim from NCC which I ack on line and put in a holding defence for. The claiments sol ack safe recipt of the defence.

 

At that time I sent the standard CPR 18 letter for further info, sent a copy to the court.

 

After seven days I sent a reminder to the claiments solicitor.

 

After the requisite 33 days I phoned the court who told me the action was stayed as no reply from the claiment.

 

I waited for a bit, after 6mths i got a copy of the so called agreement, in fact it was an application form, they even refer to it as an application form in the letter they sent. No prescribed terms at all.

 

In the interim I SAR the original creditor only got the same application form from them (poor microfiche copy, u would need an electron microsope to read it) and guess what no letter of assignment, i speciffically asked for this.

 

So one day I was sitting there thinking whats going on and I thought I might as well be proactive.

 

Sent in a N244 asking with draft directions asking the court to get the DCA to supply the information required, court issued an order saying the application would only be listed if I

a. setting out the notice under shich of the CPR it is to be made

b. specifying the document or information he seeks the claiment to disclose.

 

Well you could have knocked me over with a feather, on the Draft order for directions I had stated clearly exactly what I wanted CCA, DN, deed of assignment, Notice of assignment, and copies of any documents relied upon.

Also stated "if claiment fails to provide etc stuck out without further delay etc"

 

So there I was wondering what was going on.

 

I thought well the gbest defence is attack so I sent in an ammended N244 requsting a Strike out, and this has been listed as a Summary Judgement.

 

The strike out request was based on the following:

1. Bringing a claim whilst in clear default of section 78 of the CCA

2. No notice of assignment.

3.No prescibed terms on the so called agreement unenforcable

4.Default notice non compliant with default and termination regs 1983

 

never heard a dicky bird from the DCA or thier solicitors about any of this.

 

 

Question is did I do the right thing this silence has me a bit concerned.

[42man]

Once again good work.....have you rung the courts to find out ?

[miffedpuppy]

yep they havent heard anything either from the other side

[pt2537]

yes damn right, you did the right thing,

 

the more people who fight back and stop these DCAs abusing the court process with defective pleadings, documents and in some cases pure lies then the better in my view

 

has the court served notice of the SJ hearing upon the other side? and have the other side submitted any witness statements etc? you need to get an update from the court asap really

[tinkerbell20]

good work

[miffedpuppy]

Ok this is getting interesting now!

 

I have recived back from the DCA sol a Witness statement and skeleton argument in which they naturally claim all my info in my witness statement is wrong:D

 

Stangely all of a sudden they have come up with a copy of an assignment from the original creditor and one from them, something I have never had.

 

I am in possession of a returned SAR from the OC complete with a wonderful print out and copiy letters of all correspondance from them from inception of the account untill the SAR was returned last year. All this ties up with copies I hold. In this print out there is no mention or copy of the assignment.

 

They maintain it doesnt matter that the notice was not sent recorded delivery and cite Van Lynn Developments Limited v Pelias Construction Co [1969] 1 QB 607 as their reasoning.

 

Is this correct?

 

They have come up with some T& C's but they have no reference to the application form and the application form as far as i can see (its a poor copy have to read with magnifying glass) refers to them. In any event there is nothing to tie the two together.

 

They also maintain that the creditor does not have to sign the agreement as it was "sealed" by the OC. no company seal i can spot.

 

They also claim that the DCA employed by the OC who sent the DN is operating under s189 of the CCA by not including the OC name and address. And that capitilised statements as per the schedule of the act are not required.

 

Hmm what do you think.

[bazaar]

Hmmm interesting

Notices

Creditors and owners must give to debtors and hirers notices of sums in arrears in respect of regulated agreements that are fixed sum credit agreements or hire agreements. For example, provided certain conditions are satisfied, a notice will be required for fixed-sum credit when the debtor is in arrears by more than the sum of his last two payments and in the case of running - account credit when the debtor misses two consecutive payments. A notice will also be needed if a default sum becomes payable.

If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then he is not entitled to enforce the agreement during the period of his failure to provide the notice. Also, the debtor or hirer is not liable to pay any interest (or any defaults which become payable during that period) that relates to the period of the creditor’s or owner’s failure, nor is the debtor or hirer to pay any default sum which becomes payable during that period.

 

 

Is this what you need?

[miffedpuppy]

Not really , the DN was deffective the notice they go on about was the Notice of Assignment

[miffedpuppy]

unashamed bump:D

[MARTIN3030]

If they were assigned the debt,then they should have had all that goes with the account at the time of the assignment.

Pt has been advising and so will alert him to the reported post.Please be a little patient.

[miffedpuppy]

Even more interesting I have noticed that the amount on the N1 form differs considerably from that on the witness statement, what would be the consequences of this.

 

No deed of Asignment from the OC stating when the debt was sold do I need it?

 

The deed of assignment I have got between the parent company and the company now presing the claim is not signed by two directors as required by the Companies Act 1985 section 36A and backed up Firstdale Ltd v Quinton [2004] EWHC 1926 para 58

[miffedpuppy]

Is it ok for a solicitor within his skeleton argument to be "economical with the truth" or to colour his argument by arguing the facts but failing to reproduce the whole facts just those that suit his pupose?

 

Surely this is misleading?

[miffedpuppy]

Another stupid question.

 

Should after having recived some info I have been waiting months for should I send a CPR32.19 notice requiring them to prove some documents.

Or would i be opening up a world of hurt?

[bazaar]

Hi Miffed

yes its normal for a shister lawyer to leave out words or statements of case that dont suit.

I had this last year in the states where a lawyer left out very relevant wording to try to confuse the Judge, But once I put in a "With Predjudice' Statement highlighting this, he crawled away.

So the trick is to get the correct wording and make sure you let the Honourable judge know that he or she is having the wool pulled over their eyes. Hopefully the Judge would be suitably annoyed.

Edited January 18, 2009 by bazaar
spelling

[Barclaysbunny]

 

They maintain it doesnt matter that the notice was not sent recorded delivery and cite Van Lynn Developments Limited v Pelias Construction Co [1969] 1 QB 607 as their reasoning.

 

Is this correct?

Hi

I'm slowly going through this for you, but as to this point, unfortunately, yes, they are correct (b*st*rds). The case notes has this:

Held – On the true construction of s 136(1)a of the Law of Property Act, 1925, notice of assignment of a chose in action was good even though it contained no date and the incorrect statement could be ignored as an inaccurate surplusage (see p 826, letters e and f, and p 827, letters f and g, post); and (per Widgery LJ) it was immaterial that the letter was not written with the intention that it should perform the function of giving notice under s 136(1) (see p 827, letter i, post).

 

I'm going through the rest, will get back soon

[Barclaysbunny]

 

They also maintain that the creditor does not have to sign the agreement as it was "sealed" by the OC. no company seal i can spot.

Hmm what do you think.

But, we do have them on the non-sealed or signed assignment. Can you tell me whether someone has signed it? You say it's not sealed, but they no longer have to seal it, but they do have to sign it, or vice versa - but if there's neither . (I sat reading related and more up-to-date case law that contains the '69 case referred to in their WS). So, let me know, and if we don't have a properly signed or sealed assignment of the debt, I'll put together a skeleton argument using the current case law (there's perfect parts of judgments that would totally kill this action dead:D).

[miffedpuppy]

ok I understand, I think, the main crux is that they cannot attest to the OC sending it by registered post but they say their letter is good enough for the LOP. However the LOP act states it must be under the hand of the Assignor (ie Goodbye hello). Not to mention the fact I recived neither of these two letters.

I was wondering if i should as per post 13 put them to strict proof as to the OC letter.

My SAR with the OC revealed no such letter, they did however provide me with a computer print out with showing all leeters sent and copies of these letters which tie up. The Goodbye letter does not feature in this, however letters prior and after the date of this letter do.

 

I have some doubts as to the Authenticity of this letter as the paper it is printed on does not correspond to the OC headed note paper in as much the logo is in a completly different place as is the OC's reg address. Furthermore copies of correspondance supplied by the OC are on plain paper marked very clearly "ARCHIVE RETRIEVAL" why would a copy of such an important document be not on the file as all other correspondance is and why would a copy of this letter be printed out on headed notepaper when the others are not?

This is why I asked the question about the CPR32.19 notice.

[Barclaysbunny]

Yes, I would be asking for strict proof that the assignment is indeed under the hand of the assignor, and strict proof that this was done prior to issuing the claim.

Can you imagine if this was done incorrectly? The whole case drops as a result.

You do need to find some of the threads by the people that know the best ways of doing a 32.19 notice, but, given what you've said, I would make something big out of the assignment - because if they are saying it's sealed and it's not (or signed) they're screwed - you immediately put in for their claim to be struck out as having no chance of succeeding

[miffedpuppy]

OK i will start a new thread on the CPR 32.19 question.

the assignment deed is signed but only by one person for each of the companies involved.

on reading the companies act

Companies Act 1998

Execution of documents: England and Wales

Under the law of England and Wales the following provisions have effect with respect to the execution of documents by a company

 

A document is executed by a company by the affixing of its common seal

 

A company need not have a common seal, however, and the following subsections apply whether it does or not

A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company

A document executed by a company which makes it clear on its face that it is intended by the person or persons making it to be a deed has effect, upon delivery, as a deed; and it shall be presumed, unless a contrary intention is proved, to be delivered upon its being so executedIn favour of a purchaser a document shall be deemed to have been duly executed by a company if it purports to be signed by a director and the secretary of the company, or by two directors of the company, and, where it makes it clear on its face that it is intended by the person or persons making it to be a deed, to have been delivered upon its being executed means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property

 

and

Companies Act 2006 in force November 2006

Execution of documents: England and Wales

(1Under the law of England and Wales the following provisions have effect with respect to the execution of documents by a company

(2A document is executed by a company by the affixing of its common seal

(3)A company need not have a common seal, however, and the following subsections apply whether it does or not

A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company

A document executed by a company which makes it clear on its face that it is intended by the person or persons making it to be a deed has effect, upon delivery, as a deed; and it shall be presumed, unless a contrary intention is proved, to be delivered upon its being so executed.

In favour of a purchaser a document shall be deemed to have been duly executed by a company if it purports to be signed by a director and the secretary of the company, or by two directors of the company, and, where it makes it clear on its face that it is intended by the person or persons making it to be a deed, to have been delivered upon its being executed.

purchaser means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property.

 

and

 

Firstdale Ltd v Quinton [2004]EWHC 1926

 

 

]THE HONOURABLE COLMAN J.

57Mr Nathan argues that under section 36A of the Companies Act 1985 the claimant never executed the deed because only one director signed it and not either two directors or one director and the secretary. That section provides

"(1) Under the law of England and Wales the following provisions have effect with respect to the execution of documents by the company

(2) A document is executed by a company by the affixing of its common seal.

(3) A company need not have a common seal, however, and the following subsections apply whether it does or not

(4) A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company

(5) A document executed by a company which makes it clear on its face that it is intended by the person or persons making it to be a deed has effect, upon delivery, as a deed; and it shall be presumed, unless a contrary intention is proved, to be delivered upon its being so executed

 

58.Therefore clause 5 was never engaged and Ms Pooley never had authority to date it or deliver it on behalf of the claimant. It was therefore not validly executed as a deed. Further, Ms Pooley did not date the document that had been signed, but another document the one bearing the two dates. Indeed, FW did not have authority to act for the claimant until 6 November 2003. Therefore, the notice given to the defendant on 26 November 2003 was not a valid notice of a valid assignment. The document in question had not been validly executed as a deed and even if it were valid it bore two dates so that the defendant could not ascertain on which date the assignment had taken place.

 

oh and by the way I have already sent in a N244 for stike out and its being heared soon.

Edited January 18, 2009 by miffedpuppy

[Barclaysbunny]

wow, that went wrong a bit

here's s. 36A Companies Act 1985

[36A Execution of documents: England and Wales]

 

[(1) Under the law of England and Wales the following provisions have effect with respect to the execution of documents by a company.

(2) A document is executed by a company by the affixing of its common seal.

(3) A company need not have a common seal, however, and the following subsections apply whether it does or not.

(4) A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company.

[(4A) Where a document is to be signed by a person as a director or the secretary of more than one company, it shall not be taken to be duly signed by that person for the purposes of subsection (4) unless the person signs it separately in each capacity.]

(5) . . .

(6) In favour of a purchaser a document shall be deemed to have been duly executed by a company if it purports to be signed by a director and the secretary of the company, or by two directors of the company, . . ..

A “purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property.

[(7) This section applies in the case of a document which is (or purports to be) executed by a company in the name or on behalf of another person whether or not that person is also a company.]

[(8) For the purposes of this section, a document is (or purports to be) signed, in the case of a director or the secretary of a company which is not an individual, if it is (or purports to be) signed by an individual authorised by the director or secretary to sign on its behalf.]]

[miffedpuppy]

sorry had to edit out all the font bits lol

 

and as i said its only signed by 2 people not both acting in thier capacity as directors for both companies either, because in that case they would have to sign the deed twice for it to be effective.

[Barclaysbunny]

You quoted the case I was looking at - so yes, I do think you can kill this case, if it's not signed, or as you say incorrectly signed, they're screwed - well done!! Have you got the full judgment, or do you want me to email it?

[miffedpuppy]

no i have the full judgement thanks, this will have an impact on a lot of people for this is a well known (on here) DCA.

Also i have them banged to rights on the agreement etc unenforcable or what lol.

[miffedpuppy]

If you can get one of these, would you be entitled to your money back and if so under what section of the act would it apply?

[miffedpuppy]

Anyone?