Andy Manx -v- CL Finance/Howard Cohen & Co (GUEST STARRING: Aktiv Kapital/Appleton Massey)**WON**

[make them aktiv runners]

CL Finance cannot remain as claimant as they no longer own the debt. Can apply for a strike out on the basis CL Finance are not the legal owner, or request correct party is substituted into the proceedings.

 

X20 is the best with defences. You are lucky X20 is here.

[andymanx]

CL Finance cannot remain as claimant as they no longer own the debt. Can apply for a strike out on the basis CL Finance are not the legal owner, or request correct party is substituted into the proceedings.

 

X20 is the best with defences. You are lucky X20 is here.

Thanks Aktiv Runner.

 

Here is my amended statement for the AQ. Let me know what you think. I know its still a bit wordy but I dont know what I can cut out.

 

I have no idea what to put on the Draft Order.

 

ALLOCATION QUESTIONNAIRE – SECTION G.

 

If the court is in agreement, the Defendant respectfully requests that special directions may be given as per the attached draft order.

 

The Defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

1) Since submitting my defence, I have been informed by a third party: Appleton Massey (who are acting on behalf of Aktiv Kapital) in a letter to me dated 4 August that CL Finance sold the account to Aktiv Kapital on 11 August 2008 (Appleton Massey’s letter is annexed to this Allocation Questionnaire, marked AKW Exhibit 1 and my reply is annexed to this Allocation Questionnaire, marked AKW Exhibit 2). The letter also made reference to these Court Proceedings and after further investigation, it transpired that the account that I had been corresponding about with Aktiv Kapital and their Solicitors: Appleton Massey were one and the same account. Prior to this new information, I was under the impression that the account I was corresponding about with Aktiv Kapital and their Solicitors was for a different account, also with GE Money.

 

Therefore, as CL Finance are no longer the legal owner of the account, they should no longer be the Claimant to these proceedings. Aktiv Kapital should be the new Claimant in the proceedings but I suggest that this isn’t carried out, due to:

 

a) As 4 months have passed since the Claim Form was issued and as CL Finance, or Aktiv Kapital haven’t re-served the Claim Form, then the prescribed timescale of 4 months has passed, as per CPR 7.5;

 

Service of a claim form

7.5

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

 

 

b) Aktiv Kapital have provided me with a copy of the Credit Agreement, which relates to these proceedings, on 29 May 2009 (annexed to this Allocation Questionnaire, marked AKW Exhibit 3) but it is however invalid and unenforceable, due to the following two reasons:

 

Reason 1) on the front page of the Credit Agreement it states that the Agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing.

 

Therefore, this has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974;

 

78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Reason 2) the one and only page of the Credit Agreement that was provided (the front page) is illegible, despite being enlarged by myself on a photocopier.

 

Therefore, as the Credit Agreement is illegible, this has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557);

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment:

 

9. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

2) Furthermore, to-date CL Finance have still not provided me with a copy of the Credit Agreement and I have had to rely on the one that Aktiv Kapital provided me with, therefore CL Finance have failed to comply with my CPR 31.14 Request.

 

3) On the basis of the afore-mentioned, it is respectfully requested that this case is striked out as there is no case to answer by the Defendant and that the Defendant is awarded costs from the Claimant, which have been incurred in defending this case.

[Guest janensteve]

ALLOCATION QUESTIONNAIRE – SECTION G.

 

If the court is in agreement, the Defendant respectfully requests that special directions may be given as per the attached draft order.

 

The Defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

1) Since submitting my defence, I have been informed by a third party: Appleton Massey (who are acting on behalf of Aktiv Kapital) in a letter to me dated 4 August that CL Finance sold the account to Aktiv Kapital on 11 August 2008 (Appleton Massey’s letter is annexed to this Allocation Questionnaire, marked AKW Exhibit 1 and my reply is annexed to this Allocation Questionnaire, marked AKW Exhibit 2). The letter also made reference to these Court Proceedings and after further investigation, it transpired that the account that I had been corresponding about with Aktiv Kapital and their Solicitors: Appleton Massey were one and the same account. Prior to this new information, I was under the impression that the account I was corresponding about with Aktiv Kapital and their Solicitors was for a different account, also with GE Money. Did the letter specifically quote the CCJ Claim No ?

 

Therefore, as CL Finance are no longer the legal owner of the account, they can no longer be the Claimant to these proceedings. Have you received a notice of assigment from CL Finance ?

a) As 4 months have passed since the Claim Form was issued and as niether CL Finance, nor Aktiv Kapital haven’t re-served the Claim Form, then the prescribed timescale of 4 months has passed, as per CPR 7.5;

 

Service of a claim form

7.5

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

 

 

b) Aktiv Kapital have provided me with a copy of the Credit Agreement, which relates to these proceedings, on 29 May 2009 (annexed to this Allocation Questionnaire, marked AKW Exhibit 3) but it is however invalid and unenforceable, due to the following two reasons:

 

Reason 1) on the front page of the Credit Agreement it states that the Agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing.

 

Therefore, this has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974;

 

78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Reason 2) the one and only page of the Credit Agreement that was provided (the front page) is illegible, despite being enlarged by myself on a photocopier.

 

Therefore, as the Credit Agreement is illegible, this has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557);

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment:

 

9. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

2) Furthermore, to-date CL Finance have still not provided me with a copy of the Credit Agreement, therefore CL Finance have failed to comply with my CPR 31.14 Request.

 

3) On the basis of the afore-mentioned, it is respectfully requested that this case is struck out as there is no longer a cause of action in the name of the claimant. and that the Defendant is awarded costs from the Claimant, which have been incurred in defending this case.

[andymanx]

ALLOCATION QUESTIONNAIRE – SECTION G.

 

If the court is in agreement, the Defendant respectfully requests that special directions may be given as per the attached draft order.

 

The Defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

1) Since submitting my defence, I have been informed by a third party: Appleton Massey (who are acting on behalf of Aktiv Kapital) in a letter to me dated 4 August that CL Finance sold the account to Aktiv Kapital on 11 August 2008 (Appleton Massey’s letter is annexed to this Allocation Questionnaire, marked AKW Exhibit 1 and my reply is annexed to this Allocation Questionnaire, marked AKW Exhibit 2). The letter also made reference to these Court Proceedings and after further investigation, it transpired that the account that I had been corresponding about with Aktiv Kapital and their Solicitors: Appleton Massey were one and the same account. Prior to this new information, I was under the impression that the account I was corresponding about with Aktiv Kapital and their Solicitors was for a different account, also with GE Money. Did the letter specifically quote the CCJ Claim No ?

 

Therefore, as CL Finance are no longer the legal owner of the account, they can no longer be the Claimant to these proceedings. Have you received a notice of assigment from CL Finance ?

 

a) As 4 months have passed since the Claim Form was issued and as niether CL Finance, nor Aktiv Kapital haven’t re-served the Claim Form, then the prescribed timescale of 4 months has passed, as per CPR 7.5;

 

Service of a claim form

7.5

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

 

 

b) Aktiv Kapital have provided me with a copy of the Credit Agreement, which relates to these proceedings, on 29 May 2009 (annexed to this Allocation Questionnaire, marked AKW Exhibit 3) but it is however invalid and unenforceable, due to the following two reasons:

 

Reason 1) on the front page of the Credit Agreement it states that the Agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing.

 

Therefore, this has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974;

 

78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Reason 2) the one and only page of the Credit Agreement that was provided (the front page) is illegible, despite being enlarged by myself on a photocopier.

 

Therefore, as the Credit Agreement is illegible, this has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557);

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment:

 

9. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

2) Furthermore, to-date CL Finance have still not provided me with a copy of the Credit Agreement, therefore CL Finance have failed to comply with my CPR 31.14 Request.

 

3) On the basis of the afore-mentioned, it is respectfully requested that this case is struck out as there is no longer a cause of action in the name of the claimant. and that the Defendant is awarded costs from the Claimant, which have been incurred in defending this case.

Hi Jalensteve,

 

Yes the letter from Appleton Massey mentioned the Court Claim No (see bottom letter @ http://www.consumeractiongroup.co.uk/forum/show-post/post-2362983.html).

 

No, I never received a Notice Of Assignment from CL Finance. If they sent it at all, they probably sent it to my old address, the same one that they served the Claim Form at but I wouldnt have got them because I had already moved house.

[Guest janensteve]

hmmm, if you produced the notice of assigment by cl finance saying debt was assigned to activ capital, then cl would be sunk there and then.

 

i suspect dj would probably want to satisfy status of cl in the claim before giving order to strike out. might he not direct cl finance to confirm debt assigned ?

[andymanx]

hmmm, if you produced the notice of assigment by cl finance saying debt was assigned to activ capital, then cl would be sunk there and then.

 

i suspect dj would probably want to satisfy status of cl in the claim before giving order to strike out. might he not direct cl finance to confirm debt assigned ?

I have received the below letter from AK advising they have bought the debt from CL. Will that do to prove assignment to them? As well as the Appleton Massey letter? If so, I could include it as an exhibit with my Section G.

 

Edited August 17, 2009 by andymanx

[Guest janensteve]

it might suffice, but enough people on this forum swaer that if notice not issued by the assignor, then no effective notice is deemed served and that is a defence.

[andymanx]

it might suffice, but enough people on this forum swaer that if notice not issued by the assignor, then no effective notice is deemed served and that is a defence.

Should I pester CL Finance to fax me a copy of the assignment then?

[surfaceagentx20]

The absence of notice delivered by the assignor regretably is not a defence. The identity of the giver of notice of assignment is not crucial. It may be given by the assignee.

 

I shouldn't pester CL. If you've put the question of the fact of assignment in issue it will be for the claimant to prove it the way they want the court to treat it. Besides is there really any issue that CL assigned the benefit of the agreement to Aktiv? Presumably CL maintain Aktiv acquired the debt and Aktiv say the same. An application for substitution in parties is required so as to substitute Aktiv for CL. I shouldn't be in a rush to persuade the opposition to apply to get their house in order.

 

x20

[andymanx]

The absence of notice delivered by the assignor regretably is not a defence. The identity of the giver of notice of assignment is not crucial. It may be given by the assignee.

 

I shouldn't pester CL. If you've put the question of the fact of assignment in issue it will be for the claimant to prove it the way they want the court to treat it. Besides is there really any issue that CL assigned the benefit of the agreement to Aktiv? Presumably CL maintain Aktiv acquired the debt and Aktiv say the same. An application for substitution in parties is required so as to substitute Aktiv for CL. I shouldn't be in a rush to persuade the opposition to apply to get their house in order.

 

x20

Is the updated Section G @ http://www.consumeractiongroup.co.uk/forum/show-post/post-2369973.html okay? Should the claim be striked out as the prescribed 4 months to re-serve the papers has passed? And on the basis of the invalid Credit Agreement?

Edited August 18, 2009 by andymanx

[andymanx]

Bump

[andymanx]

Up we go.

[Guest janensteve]

you playing dodgems all by yourself ?

[surfaceagentx20]

Your Section G says this:

 

ALLOCATION QUESTIONNAIRE – SECTION G.

 

If the court is in agreement, the Defendant respectfully requests that special directions may be given as per the attached draft order.

 

The Defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

1) Since submitting my defence, I have been informed by a third party: Appleton Massey (who are acting on behalf of Aktiv Kapital) in a letter to me dated 4 August that CL Finance sold the account to Aktiv Kapital on 11 August 2008 (Appleton Massey’s letter is annexed to this Allocation Questionnaire, marked AKW Exhibit 1 and my reply is annexed to this Allocation Questionnaire, marked AKW Exhibit 2). The letter also made reference to these Court Proceedings and after further investigation, it transpired that the account that I had been corresponding about with Aktiv Kapital and their Solicitors: Appleton Massey were one and the same account. Prior to this new information, I was under the impression that the account I was corresponding about with Aktiv Kapital and their Solicitors was for a different account, also with GE Money.

 

Therefore, as CL Finance are no longer the legal owner of the account, they should no longer be the Claimant to these proceedings. Aktiv Kapital should be the new Claimant in the proceedings but I suggest that this isn’t carried out, due to:

 

a) As 4 months have passed since the Claim Form was issued and as CL Finance, or Aktiv Kapital haven’t re-served the Claim Form, then the prescribed timescale of 4 months has passed, as per CPR 7.5;

 

Service of a claim form

7.5

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

 

 

b) Aktiv Kapital have provided me with a copy of the Credit Agreement, which relates to these proceedings, on 29 May 2009 (annexed to this Allocation Questionnaire, marked AKW Exhibit 3) but it is however invalid and unenforceable, due to the following two reasons:

 

Reason 1) on the front page of the Credit Agreement it states that the Agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing.

 

Therefore, this has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974;

 

78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Reason 2) the one and only page of the Credit Agreement that was provided (the front page) is illegible, despite being enlarged by myself on a photocopier.

 

Therefore, as the Credit Agreement is illegible, this has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557);

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment:

 

9. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

2) Furthermore, to-date CL Finance have still not provided me with a copy of the Credit Agreement and I have had to rely on the one that Aktiv Kapital provided me with, therefore CL Finance have failed to comply with my CPR 31.14 Request.

 

3) On the basis of the afore-mentioned, it is respectfully requested that this case is striked out as there is no case to answer by the Defendant and that the Defendant is awarded costs from the Claimant, which have been incurred in defending this case.

My starting position in considering the AQ is the value of the claim. I believe it's less than £400.00. If so there can be no question that the case will be allocated to the small claims track and standard small claims track directions will be issued, unless the AQ can show alternative proportionate directions would be appropriate.

 

Your Section G begins by referring the Judge (as reader of the AQ) to a draft order. It seems you haven't prepared one. That's not a good start if the contents of Section G are designed to persuade the Judge to depart from the usual order and direct special directions. What are these special directions?

 

Instead your Section G deals in turn with

 

 

1. the overriding objective
   
2. why Aktic Kapital would be the proper claimant and why they shouldn't be
   
3. CPR 7.5 and whether the Claim Form has been served
   
4. Whether the agreement is enforceable
   
5. whether the agreement is valid because of a failure to comply with section 78(1) Consumer Credit Act 1974
   
6. a quote from Lord Nicholls in Wilson v First County Trust
   
7. the Claimant's failure to comply with CPR 31.14
   
8. a suggestion that the claim should be struck out as there is no case to answer
   
9. a suggestion the Claimant should be order to pay your costs.
   

 

The only direction you are seeking there is for strike out. The rest is argumentative and is of no assitance to a Judge required to deal with case managment decisions. If you want the claim struck out you must make an application for summary judgment, set out the grounds and supporting evidence and pay the fee. If you are not going to make such an application (and I do not recommend it) my advice to you is to leave section G blank. The issues in this case are simple. A fair disposal can be dealt with by making standard small claims track directions. That's what the Judge will do. His directions will be no different simply owing to what Lord Nicholls said.

 

x20

[Guest janensteve]

i see no reason why a judgement claimant cannot assign their benefit to a third party.

[surfaceagentx20]

A judgment creditor may assign the benefit of the judgment to a third party as assignee. That third party assignee would then need leave to be substituted as judgment creditor. Invariably he'd get it.

 

However, in this case it is not clear whether just the judgment or whether any additional rights were assigned. On balance I fall on the side which says the assignment of the judgment is tantamount to an assignment of the cause of action since the cause of action merged with the judgment on it being pronounced. In either case the assignee has not applied to be substituted as claimant or judgment creditor and my view favours the notion that by reason of assignment, CL have dropped out of the picture and no longer have any legal ground to pursue or seek an order of the court that the money should be paid to them.

 

But heck, leave all this stuff to spring on them at the final hearing.

 

x20

[lilly white]

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.

[lilly white]

in regards to any situation where debts have been sold.

 

IE IF YOU CLAIM BACK ANY PPI CHARGES THE OC CAN REDUCE THE DEBT

 

I ask this question why is that. the only thing that is sold is the benifit.

 

So why not go for the oc if you can see what will happen the dca who has bough the debt will give it back because will not want to lose the insurance.

 

I do not want to go to far into the law of property however think of this if i sent you letter from lilly whites dca( god forgive) would you pay me NO.

 

I WISH YOU ALL A GOOD EVENING

[lilly white]

s136 Legal assignments of things in action.

- [/b](1) 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 (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.

[middenmess]

Towards the end of page 1 is this post.....

 

Quote:

Originally Posted by GamekeeperToPoacher

Hi Andymax,

 

I am responding from Nottsdaves thread I am sorry to say that I too am feeling out of my depth. One thing I did notice in an early post, post 2 was that you say the debt is from December 1997. If that is the case surely it is statute barred.

 

GK

If you are free at anytime please take a look at my thread here where I will soon be posting my draft WS

 

Hi Gamekeeper, thanks for popping by.

 

I did pay a few payments of £1 to Aktiv Kapital and because I have done that, apprantly I cant claim "statute barred" now. If only I had found CAGS before I paid the £1's lol.

 

~

 

 

I might well be wrong but I've read several times on this forum that

 

'once statute barred always statute barred'

 

I'm pretty sure that this was posted by a member of the site team.

 

But I could be destined to sit on the idiot's chair for posting this!!

[andymanx]

OMG just received this from Aktiv Kapital's Solicitors and I have no idea what to put in my Section G as a result now!

 

[middenmess]

So as I understand it [or not!]..

 

Alleged debt is for £381 from 2007 CCJ gained by CL who bought account from GE.

 

CL issued court proceedings

 

Before the matter came to court,CL sold the account to Aktiv

 

Aktiv pursued you and you made several token payments of £1 to Aktiv

 

Aktiv have now sold it back to CL

 

Therefore the original claim for £381 by CL to go to court must now be incorrect as you have paid some monies to Aktiv.

 

I should imagine that they will have to discontinue this court action and start all over again?

[andymanx]

So as I understand it [or not!]..

 

Alleged debt is for £381 from 2007 CCJ gained by CL who bought account from GE.

 

CL issued court proceedings

 

Before the matter came to court,CL sold the account to Aktiv

 

Aktiv pursued you and you made several token payments of £1 to Aktiv

 

Aktiv have now sold it back to CL

 

Therefore the original claim for £381 by CL to go to court must now be incorrect as you have paid some monies to Aktiv.

 

I should imagine that they will have to discontinue this court action and start all over again?

Hi and thanks for your help! I am in panic mode right now as I have to file my AQ by tomorrow (as I am working on Monday and cant do it then) and dont have any idea what to write on it!

 

CL issued proceedings and were awarded a judgement in their favour.

 

A few months after, they assigned the debt to Aktiv Kapital.

 

Recently I got the judgement set aside and returned to the claim level as I wasnt able to defend it at the time as it was sent to my old address.

 

Aktiv Kapital's Solicitors have said today that they are re-assigning the debt back to CL Finance. But is this allowed?

 

Should I file my AQ with my earlier statement of 1) I have received a copy of the Agreement but it is invalid as it is illegible and page 2 is missing and 2) The required 4 months to re-serve the claim have passed ?

[middenmess]

Probably best to click on the red triangle at bottom left of your posts to alert a member of the site team who should be able to give you the correct advice.

[andymanx]

When I asked for advice from the site team previously I was advised that they arent allowed to give advice.