Defence required for Claim form - Barclaycard / CL Finance / Howard Cohen

[DonkeyB]

Gawd, I hope not... oh...

[pt2537]

the reference to "quoting legislation" worries me

[sev67]

Here we go again, I thought this had been stayed or stuck off and was waiting to hear from the court to that effect but intead have recevied today a Notice of Allocation to the Small Claims Track (Hearing) with a court date for the end of June11, yet my last court correspondance was dated June2009 - 2yrs ago.

 

My last contact from the court was a copy of a General Form of Judgment or Order dated June2009 which said;

IT IS ORDERED THAT

1. Claimant do by XX.07.2009 deliver to the court;

i) a reply to the amended defence if so advised and

ii) a completed allocation questionnaire

2. Claimant do by 4pm xx.07.2009 serve upon the claimant a copy of it's reply to the amended defence.

Dated XX June 2009

 

In November 2010 I received out of the blue a copy of the Claimants reply to the Defence. I came on here for advice and followed it by calling the court. The court said there had been a few letters from the claimant received but as they missed the deadline it should have been stayed or struck off and I should hear from the court next. I did, 5 months later with a court date.

 

I've called the court this morning and the Clerk said I need to write to the court so that they can put it in front of the judge for consideration. He said, it looks like the claimant has been writing many letters to the court and asked for an update saying 'what we are waiting for', and the the court replied 'we are waiting for your reply to defence'. He said it looks like it has all got very confusing for the court with the amount of letters received from the claimant so it has been passed to a judge to sort out. The clerk said it should have been stayed or struck off and it wasn't my responsibility to chase that up, the court should have actioned it themselves, but he said he can't do anything unless I put it in writing, and then he will be able to put it back in front of the judge.

 

This is so unfair, how come the judge awarded the date anyway, its not hard to see they missed the court order deadline by more than a year.

 

Ok, so I have to write to the court. Any advise or points that need to be made or do I just write it as I have explained it.

 

thanks in advance again.

 

 

[nicklea]

What did they actaully say in their reply to the defence?

[sev67]

Hi Niklea

 

Will reply in sec.

 

I forgot to remind that I did receive a witness statement dated five days after the order date that the claimant was supposed to submit their 'reply to my amended defence' by, but that itself wasn't the 'reply to defence'. For reference the witness statement said the following as I have described previously here;

http://www.consumeractiongroup.co.uk/forum/showthread.php?178915-Defence-required-for-Claim-form-Barclaycard-CL-Finance-Howard-Cohen&p=2378187&viewfull=1#post2378187

 

In reply to you Nicklea, I used the draft defence you provided to me in April09 which was this;

http://www.consumeractiongroup.co.uk/forum/showthread.php?178915-Defence-required-for-Claim-form-Barclaycard-CL-Finance-Howard-Cohen&p=2128560&viewfull=1#post2128560

 

And then in answer to your question, 'what did they actually say in their reply to the defence' , they wrote a point by point paragraph reply to my defence and in some points they wrote 'The Claimant puts the Defendant to strict proof of his allegations'. As there are 28 paragraph replies I have uploaded it in the attachment. Is this what you were looking for or shall I try and summarise it?

 

 

 

 

 

 

 

 

 

the

Claimant reply to amended defence.pdf

[nicklea]

I'll have a read tonight over a glass of wine

[sev67]

thanks

[nicklea]

I would suggest that you put together a skeleton argument that explains in more detail the issues around assignment and the default notice.

 

If you like, I'll try and put some ideas together over the weekend - around watching the grand prix.

 

You should then serve it on the other side and the court at least a week before the hearing date.

[sev67]

Ok yes thanks very much I'd appreciate your help. I'll make sure its done and served as soon as I can and way before the court date at the end of June.

Enjoy the grand prix!

[nicklea]

ok sev,

 

I've done something for you here. It's rather a long post so have a careful read of it and make sure you understand what is being said.

 

I would suggest that while it's a good idea to send it to the court in plenty of time that it might be worthwhile leaving it to the last moment to send it to the other side - they do that sort of thing to defendants all the time.

 

However, others might have different views on this.

[nicklea]

Skeleton Argument

 

 

1. This skeleton argument is intended to supplement the defence already provided.

 

 

The Assignment of the Debt

 

 

2. In the Reply to Defence, the Claimant admitted paragraph 3 of the Defence. It is thus common ground that:-

 

 

In order to prove it's claim the Claimant must establish a number of matters. Firstly that a valid Default Notice was issued. Secondly it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Thirdly, that proper notice of any such assignment was given to myself (S196 Law of Property Act 1925).

 

 

3. The necessity for proper notice being given before the commencement of legal proceedings is also confirmed by Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101. Otherwise, the Claimant has no standing before the court.

 

 

4. In paragraph 18 of the Reply to Defence, the Claimant contends that it is for the Defendant to prove its' case. It is submitted that the Claimant is mistaken in this. If the Claimant cannot demonstrate that the notice was properly given to the Defendant then it has no standing before the court.

 

 

5. The Defendant denies receiving any notice and the Claimant has not offered any evidence that the notice was received, but merely contends that it was posted by means of the ordinary postal service. The point of contention is whether the Claimant achieved good service of the notice.

 

 

6. It is common ground that the Law of Property Act 1925 is the relevant act that governs the assignment of debts. The act clearly states the two methods by which notices may be sufficiently served, ie leaving it at the last known place of abode or by sending it in a registered letter or, as now applies, in a recorded delivery letter Section 196(3) and (4).

 

 

7. These two methods are intended to assist the person who must serve a notice by offering him choices of mode of service which will be deemed to be valid service even if in the event the intended recipient does not in fact receive it. If it was proved that the Claimant had sent the notice by Recorded Delivery then service would be proved regardless of the Defendant not receiving it.

 

 

8. However if, as in this case, the Claimant chooses not to use one of the methods given in Section 196 they run the risk that, again as in this case, the Defendant does not receive the notice and so proper notice has not been given.

 

 

9. In the case of Chiswell v Griffon Land & Estates Ltd [1975] 1 WLR 1181, 1188-9, Megaw LJ said:-

 

 

“[the Act]... lays down the manner in which service of a notice can be effected. It is provided, as what I may call at any rate the primary means of effecting service, that it is to be done either by “personal” service or by leaving the notice at the last-known place of abode, or by sending it through the post in a registered letter, or (as now applies) in a recorded delivery letter. If any of those methods are adopted, they being the primary methods laid down, and, in the event of dispute, it is proved that one of those methods has been adopted, then sufficient service is proved. Thus, if it is proved, in the event of dispute, that a notice was sent by recorded delivery, it does not matter that that recorded delivery letter may not have been received by the intended recipient. It does not matter, even if it were to be clearly established that it had gone astray in the post. There is the obvious, simple way of dealing with a notice of this sort. But, as I think may be assumed for the purposes of this appeal, if the person who gives the notice sees fit not to use one of those primary methods, but to send the notice through the post, not registered and not by recorded delivery, that will nevertheless be good notice, if in fact the letter is received by the person to whom the notice has to be given. But a person who chooses to use that method instead of one of the primary methods is taking the risk that, if the letter is indeed lost in the post, notice will not have been given.” - emphasis added

 

 

10. This passage was then cited with approval in Railtrack Plc v Gojra & Anor [1997] EWCA Civ 2863 and Wilson J (with whom Evans LJ agreed) said:-

 

 

” When, however, as here, notice is sent by ordinary post instead of by a primary method, it is served - and given - on such date, if any, as it is received.”

 

 

11. These two passages were then also cited with approval in Blunden v Frogmore Investments Ltd [2002] EWCA Civ 573.

 

 

12. It is submitted that it is clear that if one of the primary methods are not used then notice will not have been given if the intended recipient never receives it.

 

 

13. The first two cases above involve the Landlord and Tenant Acts and not the Law of Property Act, while the last case, Blunden, did involve both Landlord and Tenant and the Law of Property Act. However, the important thing is that the requirements as to service of notices are the same in both acts, ie by leaving at the last known place of abode or sending by registered letter (Section 23, Landlord and Tenant Act 1927) and these cases revolved entirely around whether good service had been achieved.

 

 

14. It is submitted that these cases are directly relevant to the present case, and that (also considering the case of Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101 referred to above which was specifically concerned with notice being given under the Law of Property Act), as the Claimant did not use one of the primary methods available to it and the Defendant denies actually receiving any notice then, in fact, good service has not been accomplished. As a result of this the Claimant has no standing before the Court.

 

 

15. Further, it is submitted that the Notice is, in any case, invalid as it describes a non-existent or incorrect document. The Notice of Assignment states:-

 

“We hereby give you notice that ... by an Assignment dated 21 Oct 2008”

 

However, the alleged document of assignment that has been disclosed by the Claimant is clearly dated 28th March 2008. It follows that the Notice is not referring to this document and so is an invalid notice of an assignment.

 

 

16. In paragraph 21 of the Reply to Defence the Claimant also states that the deed was signed on 28th March 2008 so it appears that this is common ground between the parties. The Claimant then offers no argument or further evidence that there ever was a document of assignment dated 21st October 2008 and so it is submitted that the lack of a document of assignment dated 21st October 2008 is fatal to the Claimant's claim.

 

 

17. This is confirmed in W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169 where Denning LJ confirmed that a Notice of Assignment was invalid if it was inaccurate in any way:-

 

 

”Section 136(1) of the Law of Property Act, 1925 , shows that the written notice of the assignment is an essential part of the transfer of title to the debt, and the requirements of the sub-section must be strictly complied with. I think that the notice itself must be strictly accurate, in particular, in regard to the date which is given for the assignment. Even though it is only one day out, as in this case, the notice of assignment is bad.”

 

 

18. Further, if the Claimant should still contend that the Assignment did, in fact, take place in October 2008 then it is submitted that the notice is still not sufficient. The mere fact of giving a notice does not, of itself, create an assignment and there must be an actual written assignment given under the hand of the assignor in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim. The Claimant has offered no evidence to show that there is such a written assignment dated 21st October 2008.

 

 

19. Finally, the Claimant has disclosed the title page and the signature page of an alleged agreement of assignment. Without sight of the actual terms of the agreement, it is impossible to tell from what has been disclosed whether or not it is an absolute assignment. It is submitted that the Claimant has not complied with the Order to disclose the entire document of assignment.

 

 

20. In paragraph 24 of the Reply to Defence, the Claimant contends that it should not disclose the agreement as the information is commercially sensitive. It is submitted that the Claimant cannot demonstrate that this does represent an absolute assignment without disclosing the terms of the Agreement. It is submitted that it would be entirely reasonable for the Claimant to provide the whole agreement while redacting any information, such as consideration, which would be commercially sensitive. It is further submitted that this is also required to demonstrate how the Defendant's details can be included in a Schedule to the Agreement of 28th March yet the Claimant contends that the assignment did not take place until October of that year.

 

 

 

 

The Default Notice

 

 

21. As stated in paragraph 7 of the Defence, exhibit [put in here the exhibit number], the alleged default notice served under s87 (1) of the Consumer Credit Act 1974 (“the Act”), failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (“the Regulations”)

 

 

22. Section 2(5)(a) of the Regulations requires that the lettering in the statement shall be afforded more prominence than any other lettering in the notice. Section 2(5)(b) then goes on to state that any words shown underlined in the Schedule to the Regulations should be afforded yet more prominence.

 

 

23. So, it is clear that the whole of the relevant statement must be afforded more prominence than any other lettering in any event and that even greater prominence must be given to certain parts of those statements.

 

 

24. It is submitted that the alleged default notice fails to do this and that the notice does not comply with Section 2(5)(a) and (b) and so is a bad notice.

 

 

25. Under para 4 of Schedule 2 of the Regulations, the notice is required to contain the following statement:-

 

 

“IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH”.

 

 

By the action of Section 2(5)(a) of the Regulations, the whole of this statement should be afforded more prominence than any other lettering in the notice and by the action of Section 2(5)(b) the words ”before the date shown” should be given even more prominence than the already prominent whole statement.

 

 

26. It is clear from the Default Notice that, while the words ”before the date shown” have indeed been given more prominence, that the whole of the statement has not been given the required extra prominence. It appears that the Claimant, while they have complied with section Section 2(5)(b) have failed to comply with Section 2(5)(a) of the Regulations.

 

 

27. This is repeated with the requirement under para 5 of Schedule 2 with regard to the following statement:-

 

 

“IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]”

 

 

The Claimant has failed to comply with Section 2(5)(a) in that the whole statement has not been given more prominence.

 

 

28. This is further repeated with the requirement under para 9 with regard to the following statement:-

 

 

“IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME”

 

 

In this case, the Claimant has totally ignored the requirement for giving extra prominence to this statement.

 

 

 

 

29. Finally, Section 2(2)© of the Regulations require that the notice shall contain “statements in the form specified in paragraphs 4, 5, 7 and 9 to 11 of that Schedule“.

 

 

30. Para 10 of Schedule 2 requires a statement in the following form:-

 

 

“IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS` ADVICE BUREAU”

 

 

31. However, the notice fails to contain this statement. Although it does contain a statement that is similar it is clearly not in the form specified by para 10. The notice therefore fails to meet the requirements of Section 2(2)© of the Regulations and so the notice is bad. The relevant statement given in the notice is:-

 

 

“If you are not sure what to do, you should get help as soon as possible. Free independent advice and assistance for those in financial difficulties is available from the following:“

 

 

This statement further fails to comply with Section 2(5)(a) in that the whole statement has not been given more prominence.

 

 

 

 

32. The Court's attention is drawn to the opening part of section 88(1) of the Act, which states

88. Contents and effect of default notice.

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue.

 

 

 

33. It is noted that the regulations do not allow any variation in the form of these statements and therefore it is submitted that where the statements are not as laid down in the Regulations the default notice is rendered invalid as a consequence. This notice fails to comply with sections 2(2)©, 2(5)(a) and 2(5)(b) of the Regulations and so is bad.

 

 

 

34. As a result, the Creditor is barred from enforcing the agreement. This was confirmed in Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) where it was held that no enforcement can be attempted in dependence on a bad default notice:-

[75] The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it.

 

 

 

Sums Claimed

 

 

 

35. As stated in paragraph 29 of the Defence, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty and so in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”).

 

 

 

36. It is noted that in paragraph 26 of the Reply to Defence, the Claimant contends that it is for the Defendant to prove its' case. It is submitted that the Claimant is mistaken in its' belief.

 

 

 

37. It is for the Claimant to demonstrate that the account charges are, in fact, lawfully owing. These account charges are only lawfully owing if they are not a penalty under common law. It is submitted that the obligation lies with the Claimant to show that they reflect any actual losses sustained or that they reflect realistically any actual costs incurred. If they cannot do this then, it is submitted, they have not proved their case.

 

 

 

38. In relation to the UTCCR, the account charges are only lawfully owing if the term of the Agreement is fair within the meaning of the UTCCR as otherwise the term is not binding on the defendant, Section 8(1) UTCCR. It is submitted that it is the obligation of the Claimant to demonstrate that the term is fair within the meaning of the UTCCR not for the Defendant to prove otherwise.

 

 

 

39. In case the Claimant should attempt to advance the argument that this case is affected by the recent bank charges case, Office of Fair Trading (OFT) v Abbey National plc & Ors [2009] UKSC 6 , it should be noted that that case involved just bank current account overdraft charges and not credit card charges. No credit card issuer was involved in that case.

 

 

 

40. Furthermore, as there is a clear breach of contract, there is no question as to whether or not the UTCCR applies as it has already been held to apply to default provisions by the House of Lords in Director General of Fair Trading v First National Bank [2001] UKHL 52. This ruling was not disturbed by the Abbey National case.

 

 

 

41. In paragraph 31 of the Defence, reference is made to the OFT report “Calculating Fair Default Charges in Credit Card Contracts”. This was included in case the Claimant should seek to rely on this document and attempt to advance an argument that a fee of £12 was fair. The OFT Report clearly states that this is not the case.

 

 

 

42. Finally, if the account charges are not lawfully owing then it is submitted that the contractual interest that has been added to those charges is also not lawfully owing as the charges should never have been made in the first place.

 

 

 

43. In light of the above it is denied that I am indebted to the Claimant as alleged or at all.

 

 

 

Statement of Truth

 

I, xxxxx, Defendant believe that the facts stated in this Skeleton Argument are true

 

 

Signed ......................... ...........

 

Dated: th February 2011

 

 

 

Edited April 9, 2011 by nicklea

[nicklea]

Was this of any help to you?

[sev67]

Wow. I need to read and digest it properly but yes of course that is of great help. Thank very much for your time.

One point which springs to mind Nicklea is this letter makes no reference to the fact HC only sent their reply to my amended defence in Nov10 instead of by Jul09 as ordered by the judge previously. If the case had been stayed then presumably HC could have forced it open again if a judge approved...(is this right?). If correct then we must be taking the same approach as if the case had been stayed and then reopened anyway...right? and therefore there is little point moaning so we may as well get on with the job in hand. Sorry if I'm confusing things and going way of mark, I just wondered why we make no mention of how late HC were, as suggested to me by the court clerk.

 

 

 

 

[sev67]

Ok, I've re-read my skeleton defence and I'm up to speed and ready to go. Court case is 12 days away so I will post this off to the court tomorrow. Do I have to send a copy to the claimaint or just the court?

[consumeredge]

bump

[consumeredge]

IT IS ORDERED THAT

The claim be stayed till 30 April, save that the claimant shall send to the defendant within 4 weeks the following:

1. Copy of the Credit Agreement

2. The Default Notice

3. Copy of the Deed of Assignment

4. Notice of Assignment

5. Copies of any statement or document to be relied upon.

 

Date Order Made: 19 March 2009

Order Drawn: 25 March 2009

Items 2 and 5

The statements of account submitted by the Claimant have no bearing on the case, in order to prove the exhibited Default Notice accurate and threfore allowing the OC just cause to lawfully issue a Default Notice dated 4th April 2008 the Claimant was required to file and serve copies of Statements of Account for account number xxxxxxx in particular for the preceding calendar months of February 2008 and March 2008, the reason being to first ascertain if any payments were made on the account during the defaulted months in question, and to then calculate if none were made, the total arrears sought are true and consistent with the figure stated on the exhibited Default Notice.

Item 3

The "Deed of Assignment"

 

By the Claimants own admission, the exhibited document is merely a rolling Generic contract, whereby the Claimant is allowed to purchase charged of debts from time to time as and when offered by the Assignor, the Claimant has provided no proof to the court (ie Bill of Sale) the account was actually purchased from the Assignor, when examining the contents of the "Deed of Assignment" it is clearly stated any monies paid by the Debtor to the Assignor during the qualifying period to be forwarded to the Assignee, indicating the alleged assignment is not absolute.

Item 4

For an Assignment to be deemed lawfully executed under Section 136 of the Law of Property Act as absolute, the Claimant must provide proof to the court the Assignor (not the Assignee) sent notice to the Debtor discharging himself from the agreement, and that all rights have been assigned to the Assignee, commonly know as "Notice of Assignment", the Claimant seeks to mislead the court, without any notice from the Assignor to the Debtor to that effect, the Assignee merely holds an Equitable Assignment

　

The main practical consequence of an Equitable Assignment is that the Assignee cannot bring an action in its own name against the Debtor, but must fall back on the rules governing Equitable Assignments and join the Assignor as a party to the action.

 

The Claimant has no standing in the court.

[consumeredge]

Good luck in court tomorrow sev, the court are not interested in postage or bold type, your missing the argument

[sev67]

Thanks consumeredge, only just caught your response before switching off.

Should this be my new skeleton defence then, or just my verbal defence when in court? (first time).

If I understand;

Items 2 and 5 - they should have supplied statements to show how we got from the alleged DN amount to the actual claim amount which is different by £180'ish. Therefore my argument is the claim amount is not proved.

Items 3 - I can't simply cannot follow this properly enough to explain it in a defence. I sort of get what you mean but don't know where you get the info from that I can refer to. Can you explain some more please. (own admission?..generic contract?..when examining the contents of the "Deed of Assignement" it is clearly stated any monies paid by the Debtor to the Assignor.....where is this ?)

Item 4 - I get this - how do i use it? Do I just explain it to the judge? Doesn't it have to be in my skeleton defence...am I allowed to change the skeleton defence then.

[sev67]

Can anyone else advise please, in court at 10 today. Got this last minute advice from CE, I think I get it all now (ie. absolute or equitable assignment being the key) but need to know if I have to print this off to hand to the judge as an "amended" skeleton defence or do I just start talking about these more important points when given the change by the judge.

[sev67]

Case Lost, CCJ awarded to Claimant.

 

Quite shocked at the ruling and feel I've been unfairly treated. I felt I did quite well holding my nerve and making good points following advice but the DJ ruled every main point of argument in favour of the claimant.

 

Hearing: I started off asking for the original documents. The DJ asked the Claimant for them but they confirmed that they did not have them. DJ acknowledged that the hearing order required that they be provided however said I don’t accept that the originals need to be provided as we are in a small claims court and cases of this kind are brought by these type of Claimants all of the time without providing the original copies of documentation.

 

The Claimant asked for the skeleton defence to be ignored as it was sent dated 10 days before the hearing and so not complying with hearing order to be delivered within 14 days of the hearing. The DJ said well I don’t have it anyway, but in any case you don’t need a skeleton defence for the small claims court. DJ later asked if I wanted to submit it, I said no I will explain my points (I did not have a spare copy to give and I needed it to read sections out).

 

DJ addressed the Claimant first who drew the attention to the copy agreement. DJ interjected asking if that was my signature on the agreement, I hesitated and DJ said come on its a very good copy, eventually I said yes. DJ then allowed the claimant to ask questions who asked; do you deny using a credit card from Barclays, answer No. Do you deny using the credit card up to Feb08, answer No. He said no further questions.

 

DJ then allowed me time to speak. I went through my points but left out the dispute as to whether the amount on the claim was valid or not. The reason for this was the Claimant had sent an additional exhibit in the court pack on 2 June which included printed statements for the card both before and after the DN. I therefore did not go down the line of disputing the claim amount. I did however explore the unfair charges issues and over limit fees. DJ summary below covers the other points I made which were explained away in the summary of judgement.

 

Summary: DJ said you acknowledge you had a credit card with Barclays and stopped using and paying for it in Feb08.

 

1. I accept that this was a rolling sale agreement but I also accept the Witness statement as proof that an absolute assignment took place on the 21st October 2008 otherwise the Claimant wouldn’t have had the temerity to bring the case. Although it is disappointing that a copy cannot be produced nor an explanation provided as to why this cannot be found instead I am provided with simply we cannot find it so I rely on the Witness statement.

 

2. I don’t see anywhere in writing that the Assignor has to give notice to the debtor in writing as opposed to the Assignee for an absolute assignment to take place. [i had earlier provided her with a copy of the LoP Act 1925 Section 136]. Plus prior to this the DJ quoted my words of;

“For an Assignment to be deemed lawfully executed under Section 136 of the Law of Property Act as absolute, the Claimant must provide proof to the court the Assignor (not the Assignee) sent notice to the Debtor discharging himself from the agreement, and that all rights have been assigned to the Assignee, commonly known as "Notice of Assignment". However it doesnt say anywhere the assignement has to be by the assignor.

3. I recognise the default notice is of a far poorer quality than any I have seen however I do accept it contains the correct wording and that some underlining is sufficient to comply with the act. I also accept that last known address is sufficient for the DN to have been served, and the Defendant confirms that the address on the exhibit DN is correct.

 

4. I feel that the different charges added to the balance of £12 each are reasonable and acceptable and in fact are lower than those the original credit agreement states of £20 for late payment or over limit charges.

 

 

I rule in favour of the Claimant. I grant permission to appeal on basis of possible test cases going through the courts. You have 21 days to respond. For a transcript of my ruling you must pay the court. However, I don’t consider an appeal as likely to succeed as the points raised aren’t particularly good.

 

 

I understand the procees for Appeals as follows;

You may appeal against a judgment in the small claims track only if the court made a mistake in law or there was a serious irregularity in the proceedings. If you want to appeal, you must file a notice of appeal within 21 days. A fee is payable although this could be waived in cases of financial hardship.If you want to appeal against a decision in the small claims track, you should consult a solicitor or an experienced adviser for example, at a Citizens Advice Bureau.

 

Any thoughts very welcome. Will appeal if there's a way forward.

Edited June 28, 2011 by sev67
clarity and layout

[consumeredge]

Hi sev

 

Just arrived from work.

 

The judge used the word "Temerity", this means the trait of being willing to undertake things that involve risk or danger, either the judge has not had dealings with cohen before or she was warning them of her suspicions

 

My view is the judge is inviting you to appeal, however, your appeal must be based on points of law for the appeal court to rule upon, in my opinion the judge made a mistake in law, and there were serious irregularities in the proceedings. If the transcript of the judges ruling is different or more in depth, you will need a copy of this.

 

Will be back later, in the meantime is the judges transcript different from the above?

[sev67]

Actually I used the word temerity but I agree there was a tone of suspicion. I think it was more like, "otherwise the claimant would not have brought about this claim unless they had an assignment so I rely on the Witness statement that it has taken place, would you Mr Claimant"..."no your honour".

 

The judge also said that "it's a shame that the witness was not present we could ask them about the assignment and its wherabouts, isn't that right Mr Claimant".." yes your honour". Witness is a litigation assistant.

 

On reflection it does sound as though the judge was highlighting certain points but unfortunately I just can't afford the transcript (my estimation is around £250 for the 90 minute hearing). Thats why I splurged it down. Perhaps you could ask the pertinent questions whilst its fresh.

Edited June 28, 2011 by sev67
re-read jogged memory on extra point

[consumeredge]

Laura Roberts of Lewis Debt Recovery sent you letter stating the account has been assigned to CL Finance Limited and demands the money be paid to The Lewis Group by the 17th November, Howard Cohen & Co state the account was assigned to CL Finance Limited on the 21st October 2008.

 

Neither Barclaycard or CL Finance Limited have ever sent you any form of notice the account has been assigned as Howard Cohen & Co or Laura Roberts alleged.

 

Howard Cohen & Co submitted a witness statement, the person who compiled the document, and signed it, failed to appear or notify the court no later than 7 days before the hearing, that they would not be appearing in person.

 

Post up the witness statement.

[sev67]

However Lewis Group Ltd t/a Lewis Debt Recovery are sister company to CL Finance Ltd and both are owned by Lewis Group (Holdings) Ltd. Does that mean still issued by assignee or not.

 

Also , at beginning of hearing I pointed out NoA was equitable, DJ referred to Claimant for response who replied they didn't know it had to be issued by the assignor as well but in any event notice had been given, and quite simply your honour all that would be needed is for the assignor to send out an NoA to the defendant very quickly to rectify the problem so we stand by our claim that notice was given.

 

Witness statement attached.

Witness Statement.pdf

[DonkeyB]

For a start, that person making that WS has absolutely NO KNOWLEDGE of the facts. It is all hearsay, based on info provided to them. The statement of truth is worth diddly squat.