Lost and won in court today!

[mowerman]

At todays case management conference -which was conducted as if it was a hearing- the judge refused to listen to my arguments regarding no NOA,no DN,non compliance with CPR and an application rather than agreement document.

At the outset he simply asked "Did you use the credit card?" Using the guidance on CAG I responded that I neither admitted or denied use of the card which would be the subject matter at a later hearing but requested that the court enforce the law and rules on the claimants duty to provide a DN and NOA and abide by CPR.

After a long lecture about huge potential costs he said the claimants non compliance with providing copy documents was irrelevant if I admitted useing the credit card. And if I denied or declined to say one way or another he would penalise me in costs by having the case heard in the fast track before himself where he would only consider arguments on whether or not the card was used to determine judgement. So much for the CCA law!

I was 'cornered' into admitting use of the card at which the judge strongly suggested the parties agree a repayment plan for the principle sum only to which I reluctantly agreed.

On the plus side the judge said if a repayment plan was agreed and accepted by the court he would not allow the addition of any of the claimants costs and fees over and above the principle sum-in the region of £1000. So I guess that's a win of sorts!

Bottom line. Forget the law, it all depends on what side of the bed the judge got out of that morning.

[postggj]

Lottery Strikes Again

[diamondgirl]

Guess you're right it is a win of sorts. Lets hope the judge gets out the right side for me soon. Way things are going at the moment I might be saying the same as you. Keep smiling. DG:(

[Sunshine54]

hi

 

this is quite a depressing tale isn't it? how often does this happen?

[womble72]

This is a depressing tale of all the information on here just being a complete waste of time.

 

How many more judges are on the side of the claimant ?

 

This could be the start of the courts ignoring the defendant case. This is not the first case i have seen on here with the same conclusion.

 

Anybody else have a view on this widespread problem of judges ignoring the facts.

 

ARE THE COURTS IN THE POCKETS OF THE BIG BAD WOLF !

 

Womble:mad:

[zhanzhibar]

hi

 

this is quite a depressing tale isn't it? how often does this happen?

 

Having read a few threads here & attending court twice (last Wednesday & today), I'm afraid the answer is very often. I experience similar thing when I went to court last Wednesday to defend against application for summary judgement & the judge had a go at me by saying that I have spend the money & now I am trying to find legal technicalities to get out of it. He asked me straight if I owe the money to which i reply if your honour said that the agreement is enforceable then yes I'll pay it ! To which he said "Now that is a different matter altogether" http://www.consumeractiongroup.co.uk/forum/legal-issues/137617-zhanzhibar-amex-aic-newman-11.html

 

Today, it was a Case mgmnet Conference & I argue the fact that the NOA is not compliance to the Law of property act S136. I even showed an extract to the judge but after reading it, he said that it didn't say there the assignor should send the NOA. I was wondering at one point whether he & I are looking at the same extract of the LOP!

http://www.consumeractiongroup.co.uk/forum/legal-issues/166060-zhanzhibar-link-financial-5.html

 

So there goes... sometimes one wonders that the authorities in this country like to s**** normal people like us left, right & centre. If it is not the government, its the "law & Order" side of the authority.The Consumer Credit Act is there to protect the consumers & yet the court seems to think that if you spend it then you have to pay it because the court take into consideration of moral issue... so what is the point of having a Consumer Credit Act?

[palomino]

One small point : the Law of Property Act says that the debtor must be notified but it does not say that the assignor has to do this. This has been discussed on here in the past.

[womble72]

This is a bad sign for people who are facing county court soon.

 

How on earth can this be all one sided for the claimaint. Has all the judges in the land got together and all in agreement with siding with the claimant.

 

I could understand the morale arguement on the claimaint side but where is the protection of the consumer act for the defendant ?

 

If the judge agrees with the morale side of things rather than legal can the defendant take there arguement any further.

[zhanzhibar]

One small point : the Law of Property Act says that the debtor must be notified but it does not say that the assignor has to do this. This has been discussed on here in the past.

 

Owh! I didn't know that. My understanding from S136 is that the assignor has to notify me. Anyway thanks for the info Palomino. Could you direct me to where this discussion is in the forum please? I need to do more research to do my amended defense.

 

Zhan

[nicklea]

zhanzibar,

 

The important bit with an NOA is HOW it's sent. It must be either personally served on you or sent by recorded delivery or special delivery.

[zhanzhibar]

zhanzibar,

 

The important bit with an NOA is HOW it's sent. It must be either personally served on you or sent by recorded delivery or special delivery.

 

Aaah! That is where I gone wrong then & that's why when i told the judge that it should be send via registered or personally sent as stated in S196 in the extract that i showed him, he read it again & said that I need to include this in my amended defense as he hadn't read that side of the law properly.

 

Thanks for the info Nick

[tedney]

subbing as I also have NOA issies with DCA's

[mowerman]

One small point : the Law of Property Act says that the debtor must be notified but it does not say that the assignor has to do this. This has been discussed on here in the past.

 

Depends on how you interpret section 136 (1)

".....under the hand of the assignor....."

 

I would read this as saying it must be sent by the original creditor.

[lilly white]

This may help somthing we are working on any input welcome

 

 

 

Assigning A Debt Or Benefit Of Contract?

 

It is important to first provide the debtor with a notice of the assignment!

 

Other points and issues that should be borne in mind:

 

· In principle, the benefit of a contract can be legally assigned without consent,

provided there is no express prohibition on assignment or, for example, a requirement that consent

is obtained.

 

· Where there is no restriction on assignment, the usual way of assigning the benefit of

contractual rights is by statutory assignment. 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 (section 136, Law of Property Act 1925).

 

· If a contract is not effectively assigned under statute, it may still be assigned under

common law by an equitable assignment. An equitable assignment may exist where the requirements

for a statutory assignment are not satisfied. The main practical consequence of an equitable

assignment is that the assignee cannot bring an action in its own name against the third party,

but must fall back on the rules governing equitable assignments and join the assignor as a party

to the action.

 

It is, in any event, desirable for notice of an assignment to be given to the third party because

the third party will otherwise be entitled to continue to make payments to the assignor. Notice

will give the assignee priority over any other assignee that has failed to give notice, provided

there is no knowledge of such prior assignment.

 

· The burden of a contract cannot be assigned. It is therefore necessary to novate, rather

than assign, certain contracts. Novation is, in effect, the rescission of one contract and the

substitution of a new contract in which the same acts are to be performed but by different parties.

 

· On the sale of a business, the asset purchase agreement may specifically assign the

benefit of the seller's contracts to the purchaser. Assuming that there is no restriction on

assignment, this amounts to a statutory assignment, provided that notice is also given to the

other contracting party. If assignment is not possible, or only possible with consent, the asset

purchase agreement may provide that such contracts are held on trust pending the obtaining of

formal consent to assign or novate.

 

Trade debts often remain with the seller on the sale of a business because giving written notice

of the assignment of the debt to each debtor can, depending on the number of debtors, be time

consuming and expensive. Where the trade debts remain with the seller, the seller may continue to

collect the debts, or else the buyer may collect the debts as agent for the seller.

 

As the burden of a contract may not be assigned, liability for breach of contract stays with the

seller, who will therefore seek an indemnity from the buyer in relation to any breach occurring

after completion.

 

Izaz Ali

[palomino]

Depends on how you interpret section 136 (1)

".....under the hand of the assignor....."

 

I would read this as saying it must be sent by the original creditor.

 

OK.

 

Here is the start of S136 of the Law of Property Act -

"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 ..."

 

The absolute assignment must be 'under the hand of the assignor'. The debtor must be given 'express notice' in writing. It does not say that the notice must be by the assignor, only that the assignment must be.

Which makes sense, even if it is patently obvious.

[tedney]

Very comprehensive lily_white and thank you. If I understand you correctly, if an original creditor, in my case a credit card company, sells my account, and perhaps other accounts to a third party to carry on the operation of providing credit, and then that third party sells the debt to a debt collecting agency, if the original creditor and the third party did not advise the debtor of this transfer, or indeed the selling of the debt to a DCA, then the assignment(s?) have not been properly carried out. Is that correct please?

[blind-as-a-bat]

One small point : the Law of Property Act says that the debtor must be notified but it does not say that the assignor has to do this. This has been discussed on here in the past.

 

palomino, yes this has been discussed many times. and the wording is ambiguous at best, but is not conclusive either way, both arguments work

 

 

but it is commensence that the notice also must be by the hand of the assignor, your contract was with them, it is there responsibility to inform you they are no longer the owner and give you details of the new owner.

 

If it was any other way it would open the door to every conn artist in the country

[blind-as-a-bat]

Here is the start of S136 of the Law of Property Act -

"Any absolute assignment by writing under the hand of the assignor of any debt or other legal thing in action,

 

As you say that is clear it must be by the hand of the assignor

 

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 ..."

 

This does not state who has to send it, i agree, but as it follows the paragraph containin the statement 'by writing under the hand of the assignor', and is still within the same section, by implication this also must be by the hand of the assignor too.

 

It's just a matter how you want to read it.

 

 

The only person that can answer how it was actully meant is the person who wrote it:rolleyes:

[palomino]

If it was any other way it would open the door to every conn artist in the country

 

Of course! Why, you could even write your own.

[Last of the Mohicans]

At todays case management conference -which was conducted as if it was a hearing- the judge refused to listen to my arguments regarding no NOA,no DN,non compliance with CPR and an application rather than agreement document.

At the outset he simply asked "Did you use the credit card?" Using the guidance on CAG I responded that I neither admitted or denied use of the card which would be the subject matter at a later hearing but requested that the court enforce the law and rules on the claimants duty to provide a DN and NOA and abide by CPR.

After a long lecture about huge potential costs he said the claimants non compliance with providing copy documents was irrelevant if I admitted useing the credit card. And if I denied or declined to say one way or another he would penalise me in costs by having the case heard in the fast track before himself where he would only consider arguments on whether or not the card was used to determine judgement. So much for the CCA law!

I was 'cornered' into admitting use of the card at which the judge strongly suggested the parties agree a repayment plan for the principle sum only to which I reluctantly agreed.

On the plus side the judge said if a repayment plan was agreed and accepted by the court he would not allow the addition of any of the claimants costs and fees over and above the principle sum-in the region of £1000. So I guess that's a win of sorts!

Bottom line. Forget the law, it all depends on what side of the bed the judge got out of that morning.

 

Quite honestly, if a Judge is so incompetant, or so indifferent to the Law being followed, having said what you said, bolded which encapsulates your right to a proper trial, you may as well give the bent fecker both barrels:

The Bill of Rights - established for several hundred years, and used as the basis for the Human Rights Act, which in turn has been used as the basis for European rights Law (which was largely drafted by UK legal experts by the way) all state in different ways but equally unequivocably: a man must be free from forfeture or fine UNTIL he has been tried by the law. He neither has to admit or not admit anything. Its encumbant upon the Claimant to offer lawful facts in order for the court to pass judgement within the law.

Your morals are not at issue. The facts presented by the Claimant are, and you may as well spell it out to the beak if he persists in acting outside the law in trying to gain an admission of guilt from you prior to the Claimant presenting their case fully.

Frankly, you have nothing to lose.

The above is just my humble opinion, but thats where it will go if they try that s*it with me.

 

 

Relevant clauses, the Human Rights Act 1998:

 

6 Acts of public authorities

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(snipped as NA)

(3) In this section “public authority” includes—

(a) a court or tribunal, and

 

From the Govt. website, on the Human Rights Act 1998

Civil disputes

 

Those disputes which don't involve the police are referred to as a 'civil law' issues rather than 'criminal law' issues. The most common issues within civil law relate to employment, housing, council tax and debt/credit, but there are many others that are also covered.

If you are involved in a civil dispute it is in everyone’s interests to try to keep the matter out of court as this can be expensive, time-consuming and often emotionally draining for those involved. Mediation or alternative dispute resolution, such as conciliation and arbitration, are recommended as the best ways to resolve civil disputes. However if they don’t work, you or the other person or party involved in the dispute may want to take it further by going to court.

Going to court

If you do end up in court, you have a responsibility to co-operate with the court to achieve the objective of a just and fair outcome. This means providing documentation and following procedures.

Dispute resolution or settling the case outside court remains an option right up to the beginning of a court case.

 

Excerpt from European Convention on Human Rights

Article 6 . Right to a fair trial

1 In the determination of his civil rights and obligations or of any criminal

charge against him, everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial tribunal

established by law. Judgment shall be pronounced publicly but the press

and public may be excluded from all or part of the trial in the interests of

morals, public order or national security in a democratic society, where

the interests of juveniles or the protection of the private life of the parties

so require, or to the extent strictly necessary in the opinion of the court

in special circumstances where publicity would prejudice the interests of

justice.

2 Everyone charged with a criminal offence shall be presumed innocent

until proved guilty according to law.

 

The specific wording from the English Bill of Rights:

"- all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void -"

 

Edited April 1, 2009 by Last of the Mohicans

[nicklea]

As the burden of a contract may not be assigned

Izaz Ali

 

lily white,

 

I see this mentioned quite often but it's not actually true in all cases, particularly in relation to the CCA.

 

If you see the cases of Halsall v Brizell [1957] Ch 169 and Rhone v Stephens [1994] UKHL 3 you will see that a burden can be assigned if it is relevant to the exercise of the right. And, of course, there is the nemo dat rule.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/190881-assignments-could-useful-2.html#post2067462

 

regards

 

nicklea

[blind-as-a-bat]

Of course! Why, you could even write your own.

 

Not that any DCA would contemplate such a thing

 

have to say Last of the Mohicans has a point, while im trying to be mindfull of differance in the level of proof between civil and criminal cases, i cant help feeling getting the OP to admitt something, which true or not, was a matter for the clament to prove, not the defendent to admit and doing so by way of a threat of financial penalty is a joke.

 

The lords where clear in the wilson case, that the use of or giving of credit was not relevent, unless the documentation was correct to the point to allow a court to rule on the matter, which sort of fits your example of the judges reaction zhanzhibar when you gave him the 'right' answer

Edited April 1, 2009 by blind-as-a-bat

[lilly white]

lily white,

 

I see this mentioned quite often but it's not actually true in all cases, particularly in relation to the CCA.

 

If you see the cases of Halsall v Brizell [1957] Ch 169 and Rhone v Stephens [1994] UKHL 3 you will see that a burden can be assigned if it is relevant to the exercise of the right. And, of course, there is the nemo dat rule.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/190881-assignments-could-useful-2.html#post2067462

 

regards

 

nicklea

 

 

Hi Nicklea i hope you are well

 

 

Where there is no restriction on assignment, the usual way of assigning the benefit of

contractual rights is by statutory assignment. 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 (section 136, Law of Property Act 1925).

 

· If a contract is not effectively assigned under statute, it may still be assigned under

common law by an equitable assignment. An equitable assignment may exist where the requirements

for a statutory assignment are not satisfied. The main practical consequence of an equitable

assignment is that the assignee cannot bring an action in its own name against the third party,

but must fall back on the rules governing equitable assignments and join the assignor as a party

to the action., the usual way of assigning the benefit of

contractual rights is by statutory assignment. 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 (section 136, Law of Property Act 1925).

 

· If a contract is not effectively assigned under statute, it may still be assigned under

common law by an equitable assignment. An equitable assignment may exist where the requirements

for a statutory assignment are not satisfied. The main practical consequence of an equitable

assignment is that the assignee cannot bring an action in its own name against the third party,

but must fall back on the rules governing equitable assignments and join the assignor as a party

to the action.

 

So as i see it

 

If it is assign under stature the dca can sue on is own right

 

If not they ,can not

 

However they do not buy the contract i.e. the burden but the rights duties and benefits.

 

As far as i see and please this is, just work in progress for the contract to

transfer novation has to take place and that is not going to happen.

 

Well where are we

 

1 if a dca write to you and you ask under what terms are the assignment

 

If it common law just tell them to go away and they do because they cant sue in there own right

 

If the alleged Debt is under Stature that is different so we need to work what we need to do,however they cant buy the contract imho

[lilly white]

I have just notice i have now score 100 posts

 

well well do i now go up to from basic account to over drawn or somthing

 

 

best wish to all of you

 

 

lilly white

[Last of the Mohicans]

 

Well where are we

 

1 if a dca write to you and you ask under what terms are the assignment

 

If it common law just tell them to go away and they do because they cant sue in there own right

 

If the alleged Debt is under Stature that is different so we need to work what we need to do,however they cant buy the contract imho

 

If the DCA states "We will have to apply to the original owner for a copy contract" - is that not an admittance on their part that the whole contract hasnt been purchased? If it had, wouldn't the original owner have had to pass all information *and rights to hold and process data* to the DCA?

If that is so, then are we not looking at an illegal novation rather than an assignment, in that the third party (the debtor) hasn't been party to the novation, and any NoA says specifically that it is an assignment, not a novation.

 

OK, taking that and running with it: for a DCA to attend court having put in writing (eg) "we will contact the original creditor" in answer to a CCA or CPR request is proof of either:

The DCA has blatently lied to the defendant when answering the CCA/CPR request in order to excuse their lack of documentation, and in doing so can perhaps be said to have attempted to pervert the course of justice?

or

The DCA has asked for an uncontracted thrid party, the original lender, who is no longer in privity with the Defendant to supply data that the Original Lender still holds, in which case the DCA breaks the Data Protection Act

or

The DCA and the OL have not assigned as they have said (hense no NoA being legally delivered, so no comebacks) and have in fact concocted between them a form of novation which has excluded the Defendant

 

just some thoughts..