Halifax vs Mikeeb / help with defense, please

[nick20045]

Subbing.

[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

[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