Halifax vs Mikeeb / help with defense, please

[humbleman]

Right, well I have put out a couple of SOS, it might be a while before you get a response.. but I will check back later on today.

 

 

see if this is any use

[MIKEEB]

Thanks guys,

 

Thats brilliant, just what i was after.

 

I am in court in 19 days so am a little nervous and am reading up like crazy. thanks for all your help, at least i know ive got likeminded people behind me.

 

Will keep you updated on the outcome. Im sure they will try and confuse and undermine me, but at least ill be a little prepared...

[nick20045]

This might help you. I have noticed that when they talk about assignment they refer to "on or shortly thereafter".

 

Notice of assignment should be by strict proof. Strict proof being by either recorded or registered post or by courier or personal service. Suggest you read this and add to your defence..............

 

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

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

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 claim, and therefore any assignment has not been perfected in law.

[nick20045]

I would suggest you add to the n268 (re part 3) and Copy of strict proof of service of Notice of Assignment.

 

AND make a note of their claim (no 2.2) that it says "on or shortly thereafter". If they have strict proof they should have given the exact date from Royal Mail Track and Trace site. (Or if by courier then from the courier site).

 

Note: If they try to say courier then on the site it should say the name of who signed for it from the printout.

[nick20045]

Just adding:

 

Have you got a copy of the Default Notice with the bundle? Also a copy of the Termination Notice?

 

Suggest if you have to upload a copy to see if it is defective or not. That is another one that can throw the case out of Court.

 

IF you do not have a copy of the default notice then add (4) to the form and ask for:

 

1: A copy of the Default Notice

2: A copy of the Termination Notice

3: A copy of strict proof of service regarding the Default Notice.

 

 

Note: The Default Notice is not really required to be sent by recorded or registered mail BUT it is known that mail does get lost in the post.

 

IF I was in front of a judge I would state that, It is a well known fact that even Proof of Posting is not Proof of delivery. Also another well known fact is that the post office allows 15 days before a letter can be declared as "lost" (Then present copy of the attached photo). Yet the default notice only allows 14 days. Hence it would be responsible to:

a: Send the letter recorded or registered to ensure it does get to the debtor and

b: Sending recorded or registered provides a guarantee that the creditors default notice has been properly served whereby in a way insuring that they have complied with the act by issuing said default notice

 

At the end of the day, if you (a layman) sends all your letters by recorded mail why should somebody who claims is owed thousands of pounds not pay a simple £1.14 to make sure everything is done correctly.

 

And.............. I have read (although I did not really read fully in depth so maybe this has been covered already) you say that you had PPI.

 

This might be another angle to go for.

 

Personally (I may be wrong and anybody feel free to correct me), I would go for:

 

1: Non service of NOA hence no right to make the claim in the first place

2: Non service of DN (unless you did get one. Then see if it is valid or not).

3: PPI as being extra charges making it an Unfair Relationship and agreement unenforceable on that basis. (See the Judgement on the Disecting the Manchester .............. thread re the "wifey" who took the bank to court in Newcastle).

 

Edit: Forgot to add the picture from Royal Mail. Can print it and keep it if needed show it. (Too early in the morning I guess )

 

Edited January 30, 2010 by nick20045

[nick20045]

How to add re Default Notice to the defence:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/190222-notice-assignment-default-notices.html

 

What I am basically looking at is that with the n268 you ask them for the strict proof re agreement, (forgot what no 2 was), assignment originals, assignment service and default notice service.

 

Then in the defence challenge the NOA assignment service and also the DN service. Then add on top PPI which are charges...............

 

Think that should do it. Now you need somebody to

 

a: challenge my idea

b: maybe write you a good defence

 

Any of those or the combination of them should get a strike out. Challenging the agreement............. well........... we have seen that it is not as easy as it used to be.

 

Edit: Not too sure as too early in the morning but I think the above link has already been referred to you. If it has, then I think you are not giving it the credit it deserves and should really give it consideration. A Faulty served NOA and a Faulty DN should get you a strike out.

Edited January 30, 2010 by nick20045

[MIKEEB]

Cheers for that,

 

good stuff, i have already filed my defense and alluded to some of the points. To re-cap i have never received a NOA (they cobbled one together for the POC and on the top wrote "a representation of one sent"), never received a DN or Termination as i was in dispute with my all my accounts with the Halifax after they added over 3k of charges....

 

Just as an extra, when do i file my witness statement and have you got any ideas for a skeleton for the judge?

[nick20045]

Cheers for that,

 

good stuff, i have already filed my defense and alluded to some of the points. To re-cap i have never received a NOA (they cobbled one together for the POC and on the top wrote "a representation of one sent"), never received a DN or Termination as i was in dispute with my all my accounts with the Halifax after they added over 3k of charges....

 

Just as an extra, when do i file my witness statement and have you got any ideas for a skeleton for the judge?

Just so you will know, 24.2 PART 24 - SUMMARY JUDGMENT - Ministry of Justice

 

and 3.4 PART 3 - THE COURT’S CASE MANAGEMENT POWERS - Ministry of Justice

 

 

Edit: Draft skeleton defence for Judge added. It is a draft and feel free to edit/amend/ignore or do as you wish.

 

Important: The part re faulty default notice you will notice is a cut and paste and hence has different sized text to the rest. You will have to retype this to make it look neat for the Judge.

Amended Draft statement.doc

Edited January 30, 2010 by nick20045

[nick20045]

Adding:

 

As said, it is a draft and feel free to amend/edit/ignore/use as you wish.

 

Have edited it to take in information from your claim e.g. You will see I made reference to their section 2.2 (in the assignment part) and also refered to where you say you have found unlawful charges.

 

IMPORTANT: Check the default charges carefully so as not to look like a fool. It is better to say £1,500 and it was really £2,500 then to say £3,000 and it turns out to be say £2,500.

 

The idea is basically to put in a skeleton defence to the Judge and give him 3 reasons to strike out. In short if he ignores 1 of them you have 2 others for a strike out.

[nick20045]

By the way, dont know if you have the link. Form N268 can be written and then printed from this link: http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForm.do?court_forms_id=526

[haggis1984]

subbing and wishing luck!

[MIKEEB]

Hi Guys,

 

Just a quick update on my case. I was in court today, what a farce. Unfortunately the DJ found in favour of Cabot!!!!!!!!!!

 

The whole experience was a bit of a disappointment, it seemed as thought it was just a club for select individuals, a rep from Cabot didnt even turn up.

 

I thought the courts were a place of law, not just what do ya reckon hearsay crap...

 

Well to sum up. I had filed my N268 "notice to prove" a week ago. Asking for the claiment to produce the original credit agreement and put them to strict proof that the default notice and notice of assignment were served.

 

It started ominously by the judge asking if they had the said documents and in my preliminaries i strongly suggested that if the claiment could not provide the original credit agreement then there was no case to answer. He asked why i had not contacted Halifax to see it if thats what i wanted, why had i left it till court to ask to see the original. Err, guess he didnt get it!!! He dismissed my notice to prove and said that it was filed too late, a week before the hearing?

 

Note to newcomers - ask to see the original well b4 court date!!

 

I did not get the court bundle of docs before the hearing as the solicitor did not put enough postage on the parcel and therefore it remained undelivered. I still have to go and pick it up yet!!

 

The solicitors even said under oath that the original did not exist and they have never had it.

 

Just to add to the comical value, the bundle did not include my 9 page defense and had only my ****e first copy before i knew what i was doing. After much confusion when I got my copy of the defense out so they could read it, the judge asked why this wasnt filed. After the usher found my copy and found the date stamp of 12th October on it the judge adjourned so the claiment could read it and digest it.

 

As i really did not know court protocal i was a a major disadvantage as i did not cross examine properly or force salient points across. This would have been a waste of time anyway, because i could tell from the beginning that they viewed me with utter contempt and the judge had no intention of following or implementing the law.

 

In summing up he said that just because there was no proof that the default notice had been sent, he beleived it had, although I said I have never had one. Then on notice of assignment he also said just because there is no proof it was sent, it didnt matter. Why was i so bothered about wanting registered proof!! He then went on to say paragraph 196 of the law of property act was not relevant and quoted then said he had googled the said law and read from paragraph 136 saying 196 did not relate to the consumer credit act.

 

All in all a bit of a whitewash, even when they were trying to add up the cash loan and ppi they got different amounts, they even got the amount to be added wrong at the end and the barrister said "im not as good as your honour at adding up", please - i nearly blurted out "stop licking his ass" (but did not want a contempt of court aswell!!)

 

I had loads to say but didnt know when or how to say it, i thought if i had my own barrister i would have tied them up in knots as they seemed clueless. The experience was decided b4 i even got there, i have heard that the DJ's in Hull are biased toward the creditors, but i didnt really believe it - oh well.

 

When they were even cross examining me and asked if the signature on the page was mine, i said i cannot confirm or deny as it is an illegible photocopy and wanted to see the original.

 

By the end of the summing up i was rather peed off, so when the asked if i had any objections to the costs i just said, Nah - add what you like.

 

So they added an extra 4 grand to the total!!!!!!!

 

Now i know what a bunch of spineless retards DJ's are i intend to appeal and get a judge that knows and is willing to enforce the law.

 

Thanks anyway to everyone that has helped me. We fight on.........

[humbleman]

Sorry about the outcome, but after my own trial absolutely nothing surprises me.

 

Hi Guys,

 

Well to sum up. I had filed my N268 "notice to prove" a week ago. Asking for the claiment to produce the original credit agreement and put them to strict proof that the default notice and notice of assignment were served.

 

It started ominously by the judge asking if they had the said documents and in my preliminaries i strongly suggested that if the claiment could not provide the original credit agreement then there was no case to answer. He asked why i had not contacted Halifax to see it if thats what i wanted, why had i left it till court to ask to see the original. Err, guess he didnt get it!!! He dismissed my notice to prove and said that it was filed too late, a week before the hearing?

 

In my case i served it almost a year before the trial and that didn't do any good either

 

Note to newcomers - ask to see the original well b4 court date!!

 

I did not get the court bundle of docs before the hearing as the solicitor did not put enough postage on the parcel and therefore it remained undelivered. I still have to go and pick it up yet!!

 

The solicitors even said under oath that the original did not exist and they have never had it.

 

Just to add to the comical value, the bundle did not include my 9 page defense and had only my ****e first copy before i knew what i was doing. After much confusion when I got my copy of the defense out so they could read it, the judge asked why this wasnt filed. After the usher found my copy and found the date stamp of 12th October on it the judge adjourned so the claiment could read it and digest it.

 

As i really did not know court protocal i was a a major disadvantage as i did not cross examine properly or force salient points across. This would have been a waste of time anyway, because i could tell from the beginning that they viewed me with utter contempt and the judge had no intention of following or implementing the law.

 

In summing up he said that just because there was no proof that the default notice had been sent, he beleived it had, although I said I have never had one. Then on notice of assignment he also said just because there is no proof it was sent, it didnt matter. Why was i so bothered about wanting registered proof!! He then went on to say paragraph 196 of the law of property act was not relevant and quoted then said he had googled the said law and read from paragraph 136 saying 196 did not relate to the consumer credit act.

 

I can believe that because at my CMC the judge said it was not relevant because it only applied to properties

 

All in all a bit of a whitewash, even when they were trying to add up the cash loan and ppi they got different amounts, they even got the amount to be added wrong at the end and the barrister said "im not as good as your honour at adding up", please - i nearly blurted out "stop licking his ass" (but did not want a contempt of court aswell!!)

 

I had loads to say but didnt know when or how to say it, i thought if i had my own barrister i would have tied them up in knots as they seemed clueless. The experience was decided b4 i even got there, i have heard that the DJ's in Hull are biased toward the creditors, but i didnt really believe it - oh well.

 

When they were even cross examining me and asked if the signature on the page was mine, i said i cannot confirm or deny as it is an illegible photocopy and wanted to see the original.

 

By the end of the summing up i was rather peed off, so when the asked if i had any objections to the costs i just said, Nah - add what you like.

 

So they added an extra 4 grand to the total!!!!!!!

 

Now i know what a bunch of spineless retards DJ's are i intend to appeal and get a judge that knows and is willing to enforce the law.

 

Thanks anyway to everyone that has helped me. We fight on.........

 

Did you ask for leave to appeal?

[citizenB]

This is outrageous. I am really sorry to hear of the outcome.

 

If you are going to appeal, you need to move swiftly. I have posted some information below that may help you. Post taken from another thread. There are quite a few appeals going on at the moment. If you pop Appeal into the search engine above (use the advanced feature) then it will give you a list of threads that you have have a look at to see how things are progressing.

 

The post below was taken from the thread linked

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/190057-oh-bls-ltsb-37.html

 

 

 

Sadly, the Transcript will be needed ASAP, so it is something that you need to crack on with ASAP.

 

The way it works is you can only use an Authorised Transcriber, but there are many on the Court lists, and their prices do not seem to vary a great deal. There is one I can recommend, only because they have been helpful to several Caggers. I have no link to them other than this. I will PM the details.

 

The Transcript itself is effectively divided into two sections:

 

(1.) The Hearing (without the Judgment).

 

(2.) The Judgment (without the Hearing).

 

The minimum you will need for an Appeal is (2.) The Judgment, although I would advise getting (1.) The Hearing as well, because that is where a lot of the chit chat went on, where you can point to, and quote, specific areas where the Judge misdirected him/her self.

 

There can only ever be one Judgment Transcription, because that is only ever done once, because that has to be approved by the Judge before it is released. In effect, the Judge can and will tweak that and I'm sure it can and will deviate from the actual words spoken and initially transcribed.

 

Anyway, once the Judgment has been done, a 2nd version is not allowed mainly because the Judge won't authorise a 2nd one.

 

The Hearing Transcription can be done more than once, i.e. by two different transcribers, but given the cost are likely to be similar, it is usually cheaper to simply buy a copy from the Transcriber who has already done it. Main problem is knowing if it has been done already!

 

In your case, it's probably unlikely that the opposition will bother with a Transcription, but they will almost certainly want a copy of the Judgment if you Appeal. They will have to buy that from your Transcriber, if so, but that is another matter, and nothing worth getting excited about. In effect, it's a little extra money for that Transcriber. Indeed, they may not bother, because they will get a copy of the Judgment in your Appeal papers anyway. It really depends on how keen they are to see you off at the Appeal, i.e. if they want a copy sooner rather than later.

 

The cost depends on the length of the whole Hearing (i.e. Hearing plus Judgment), and the number of spoken words. The quality of the Tape Recording is also an issue, but you won't know that until the Transcriber moans about it!

 

I can't say a cost, but if the Hearing was, say, 3 hours, then the approximate costs would be £400 for the Hearing and maybe £120 for the Judgment. I could be miles out, but it's in that sort of ball park. If your Hearing was only an hour or two, adjust down, and you won't be far out.

 

To organise the Transcript, you need to firstly select a Transcriber, then download and complete Form EX107:

 

Her Majesty's Courts Service -Forms and Guidance

 

Complete that, and submit to the Court, and they should then release the Tapes directly to your Transcriber.

 

Then the key issues you need to get your head around are:

 

(A.) The Appellant's Notice.

 

Her Majesty's Courts Service -Forms and Guidance

 

(B.) The Grounds for Appeal.

 

This is key, and will be the key legal points to support your Appeal. Start working on this straight away, and people here will, I am sure, give you all the help you need. Read more about Appeals here:

 

PART 52 - APPEALS - Ministry of Justice

 

And the related Practice Directions here...

 

PRACTICE DIRECTION 52 – APPEALS - Ministry of Justice

 

(C.) The Route for Appeal.

 

This is just the technical route, and will depend on various factors, seniority of Judge, type of Judgment etc. Read all about that here:

 

Her Majesty's Courts Service -Forms and Guidance

 

The following link may also help if you need any CPR Forms:

 

CPR Forms:

 

CPR - Forms - Ministry of Justice

 

OK, now the serious bit, you have just 21 days to submit your Appeal, otherwise you will be out of time, and then into the more hostile zone of making an Appeal Out of Time. You need to avoid that!

 

The main things you will need to collect and collate within the 21 days and include in your Appeal Bundle are the following:

 

The Appeal Bundle

 

(i.) Appellant's Notice.

 

(ii.) Grounds for Appeal, usually included at the end of the above.

 

(iii.) Skeleton Argument (but this can follow +14 days afterwards, so long as you get the main Bundle in within the 21 days).

 

(iv.) The N24 Order of the Judgment (which you should be getting soon anyway).

 

(v.) A completed/sealed/signed copy of Form N460 by the Judge, i.e. where the Judge has stated their reasons for refusing the Appeal.

 

(vi.) The Transcript (preferably Judgment and Hearing).

 

(vii.) Appeal Supporting Documents. That would be everything in effect, bound into chronological order, and page numbered into a 2nd section where anything key can be referenced by your Appellant's Notice or your Grounds for Appeal.

 

The above is not as bad as it looks. The task is mainly a case of getting it all done and collated within the 21 day time frame. The actual doing is not that bad...the N161 is just a Form, and the Grounds for Appeal is just a one or two page document, similar to a Defence, but setting out the key legal points. The rest is mainly bumf, most of which you already have from the Hearing.

 

I hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello MIKEEB!

 

Sorry to hear about this, but the Judge has clearly misdirected himself, so an Appeal should be considered.

 

But, as CB has Posted above, it's a big step, and you now need to raise your game to meet the challenge.

 

Take the weekend off, to get your head straight and to allow the anger to subside, then decide if you want to Appeal or not. Think about that very carefully, because you must be 100% prepared to see it through if you do Appeal.

 

Assuming yes, then you have to work hard to not only get your head around the above Appeal process, but you must also go back over your original Case, and make sure you understand every issue, every mistake, and every missed opportunity that could have made a difference on the day.

 

Ideally, you need a Barrister for the Appeal, but you can get them via CFA (Conditional Fee Agreement). But to have a chance there, you need to present your case to them such that they can see you have a chance, and yours is one they will want to take on, on a No-Win/No-Fee basis.

 

If you did not ask for Permission to Appeal at the Hearing, then I think you need to get a suitable letter off to the Court ASAP. The Judge has to complete Form N460, which you will need for the Appeal submission.

 

Remember that you have 21 days, and it's vital that you hit that Deadline.

 

Best of luck, which ever way you decide to go.

 

Cheers,

BRW

Edited February 20, 2010 by banker_rhymes_with
Word Mangle Untangle

[vjohn82]

It's almost laughable... what the hell was the Judge thinking in saying s.196 does not apply to the CCA?

[lilly white]

How sad this is I, am more and more convince that we must just fold our arms and say.

 

THE DEFENCE

1/ It is denied that the Defendant has or ever has had liability to pay - whomever that may be - any sum whatsoever.

 

 

SIGN

 

XXXXXXXXXXXX

 

Statement of truth

 

 

[angel_1]

hiya Mike

 

what a journey you have been on wishing you lots of luck and like others have said take time out to go over your case again and look at it without any emotion but with a hard clinical cold way, and which way you decide make it the right decision for you and your family

 

sometimes you have to lose a battle to win the ultimate war so they say and thank you for reminding us all about seeing the original well before any court case or court room - noted thank you.

 

take care angel x

[vjohn82]

How sad this is I, am more and more convince that we must just fold our arms and say.

 

THE DEFENCE

1/ It is denied that the Defendant has or ever has had liability to pay - whomever that may be - any sum whatsoever.

 

 

SIGN

 

XXXXXXXXXXXX

 

Statement of truth

 

 

 

:D:D:D:D:D

 

I think just sitting there with a total look of apathy is a sure fire winner!

[niknakszaks]

Sent you a PM, will be following your foot steps shortly and wondered how you got on ?