CL Finance v Questioner

[questioner]

PPI CHARGE

£5,875.80

03/02/2005

1760

8% £2,275.11

£5,875.80

£2,275.11

£8,150.91

 

 

So I should bang in a PPI claim to Santander/formerly THE MEGA PPI MISSELLING FINED GE on this basis and using the facts re their previous ownership ?

 

I can work out amounts as with credit cards showing monthly statements, with the CAG calc, but (being a maths thicko) not sure how we go on with such a SINGLE lump sum on a loan as in this case.

 

Above total is just the PPI lump on the agreement plus 8% .

 

I know - I am probably jumping the gun with a PPI claim to S at this stage.

 

I also have a SAR due from BOS, which may inadvertantly reveal more on this one.

 

Its just mad that they can change a loan into a running credit thing and change the number too without me knowing anything about all this.

 

Santander also claimed they had sent me 3 DNs - yet the only one I hold is dated differantly to any they say this issued.

 

Anyhow - this is as far as it has got ......

 

Edited December 27, 2009 by questioner

[citizenB]

Q, do you have correspondence advising of these 3 Default Notices ? Any dates ?

 

Obviously the final DN prior to the assignment where they advise the account is terminated has to be the one we take the most notice of. If we could get sight of the other 2 to see how they were configured it would be good.

 

They can issue as many DNs as they like prior to termination but after that they are snookered.

 

Ref the PPI issue, Q. I think you need to hold fire at the moment. Lets get a letter drafted up and see if we can incorporate everything and in balanced order. I would say that it will need to be sent to the Head office and as an Official Complaint now.

[questioner]

Q, do you have correspondence advising of these 3 Default Notices ? Any dates ?

 

Obviously the final DN prior to the assignment where they advise the account is terminated has to be the one we take the most notice of. If we could get sight of the other 2 to see how they were configured it would be good.

 

They can issue as many DNs as they like prior to termination but after that they are snookered.

 

Ref the PPI issue, Q. I think you need to hold fire at the moment. Lets get a letter drafted up and see if we can incorporate everything and in balanced order. I would say that it will need to be sent to the Head office and as an Official Complaint now.

 

 

HERE ARE THEIR DATES BUT THEY FAIL TO RELATE TO THE DN I HOLD

 

In view of this I may be being misled. Mine is dated 3/4/07

 

We have other letters from GE after their latest dated alleged DNs but no more DNs...... most go into 08 saying YOU HAVE FAILED TO MAKE AGREED PAYMENTS ... BLAH BLAH ..

 

Point to me is that the assignment say that it was CLs from Dec 07 but GE were still corresponding asking for dosh well after that date.

 

 

[questioner]

Year ending 31/12/06

Retail Financial Services sale by HBOS

 

End of page 71

 

http://www.lloydsbankinggroup.com/media/pdfs/investors/2006/2006_HBOS_Results.pdf

 

 

 

Edited December 27, 2009 by questioner

[questioner]

One of the main points is……..

Original loan 344……with balance being sought now by CL with new number 982…..was a personal loan.

New number 982 … is called a “running account credit agreement” by GE in 2007.

 

I have no idea where this new number came from and CL failed to address the question when raised.

 

When I CCA'd for pursued 982 number , CL forwarded old 344……. agreement

 

I recall mentioning the need for a modifying agreement, if they wanted to claim it has changed, but of course this was ignored as well by them.

 

 

It I go into the greengrocers and ask for a bag of carrots and they give me a cabbage I would be expected the question this odd move but the same doesn’t seem to apply here……is it me or...???

 

 

Its just plain crazy

Edited December 28, 2009 by questioner

[vint1954]

So I should bang in a PPI claim to Santander/formerly THE MEGA PPI MISSELLING FINED GE on this basis and using the facts re their previous ownership ?

 

I can work out amounts as with credit cards showing monthly statements, with the CAG calc, but (being a maths thicko) not sure how we go on with such a SINGLE lump sum on a loan as in this case.

 

Above total is just the PPI lump on the agreement plus 8% .

 

I know - I am probably jumping the gun with a PPI claim to S at this stage.

 

I also have a SAR due from BOS, which may inadvertantly reveal more on this one.

 

Its just mad that they can change a loan into a running credit thing and change the number too without me knowing anything about all this.

 

Santander also claimed they had sent me 3 DNs - yet the only one I hold is dated differantly to any they say this issued.

 

Anyhow - this is as far as it has got ......

 

I think your claim for PPi would be based on the amount charged for the policy, plus the interest charged on that sum at the rate when the loan was taken out.

[vint1954]

HERE ARE THEIR DATES BUT THEY FAIL TO RELATE TO THE DN I HOLD

 

In view of this I may be being misled. Mine is dated 3/4/07

 

We have other letters from GE after their latest dated alleged DNs but no more DNs...... most go into 08 saying YOU HAVE FAILED TO MAKE AGREED PAYMENTS ... BLAH BLAH ..

 

Point to me is that the assignment say that it was CLs from Dec 07 but GE were still corresponding asking for dosh well after that da

They say that they have issued 3 default notices in 2007. Did you rectify the first 2?

 

Can you jot down the DN date and rectification date for the 3 notices.

[questioner]

They say that they have issued 3 default notices in 2007. Did you rectify the first 2?

 

Can you jot down the DN date and rectification date for the 3 notices.

 

The only one we have is 3/4/07 which does not correspond with their claims.

 

It is uploaded earlier on this thread vint.

[vint1954]

The only one we have is 3/4/07 which does not correspond with their claims.

 

It is uploaded earlier on this thread vint.

Obviously shows that they posted the DN dated 3rd April on the 4th. The comms log should verify this. The other dates are probably just updates entered by them. Again the comms log from the SAR should verify.

 

Keep that DN safe.

[questioner]

Obviously shows that they posted the DN dated 3rd April on the 4th. The comms log should verify this. The other dates are probably just updates entered by them. Again the comms log from the SAR should verify.

 

Keep that DN safe.

 

Shall do vint thank you.

One problem may be that token payments were still given to CL later on then any DN. This was done in the belief that the agreement was valid under a certain amount of pressure.

 

"The other dates are probably just updates entered by them."

 

That could be true as I have quite a lot of letters after the April DN date saying ......

 

You have failed to make the agreed payments....

 

And the notice of assignment is odd too, as I have mentioned before, as CL sent this in 08 yet the actual NOA on is dated to be in force from Dec. 07.

Edited December 30, 2009 by questioner

[vint1954]

Have a look here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/221824-unenforceable-credit-agreements-24th-10.html#post2669679

 

Post #198

[questioner]

Have a look here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/221824-unenforceable-credit-agreements-24th-10.html#post2669679

 

Post #198

 

Vint - from your 198 post on t'other thread........

 

The usual failure here, no surprise, is that they ignore the law ( law of property act 1925 ) in their greed and rush for quick profits. They must issue you with a notice of assignmment. This can be issued by the Origininal Creditor or the new owner, but it must be signed by the Original creditor ( assignor ) The debt is sold under a deed.

 

In their rush for quick profits and blood, they also ignore the law on service of the Notice of Assignment. It must be served by hand, or special delivery to ensure that the debtor has possetion of it. Assignment is a very important legal action that they almost always seem to get wrong.

The so -called Notice of Assignment we recieved off CL would have just come though the post by normal 1ST OR SECOND class means and remains unsigned.

 

It just looks as you can see it be a scanned image onto the letter from CL.

 

 

So what does this mean?

 

"Assignment is a very important legal action"

 

HOW BINDING, WITHOUT SIGNATURE OR CORRECT DELIVERY, AS YOU STATE ABOVE VINT?

 

Can I clobber them with this?

 

Q

Edited December 30, 2009 by questioner

[vint1954]

I am not sure questioner. The act is very specific in that the assignment needs to be signed by the original creditor, even if not delivered by them. In theory, anyone could coble up that notice.

 

You could try posing the question on the legal forum.

[questioner]

I am not sure questioner. The act is very specific in that the assignment needs to be signed by the original creditor, even if not delivered by them. In theory, anyone could coble up that notice.

 

You could try posing the question on the legal forum.

 

THANKS VINT BUT IF I START ANY MORE THREADS I WILL GET LOST IN A SEA OF CONFUSION. I DID FIND THIS FROM A MOD ON A PENALTY CHARGES WEBSITE .........

 

The other point here is that the Assignment needs to have been sent to you be recorded post or personally served. Snail mail won't do here. Usually assignments are sent by snail, which means that the legal conditions for Absolute Assignment have not been fulfilled. This is important as an incorrectly-assigned debt is only Equitable, so the new creditor can chase the debt, but has no right to sue you unless it is Absolute.

 

 

POSSIBLY THE LETTER ON POST 10 BELOW IS APT FOR ME?

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238935-notice-assignment.html

 

 

Edited December 30, 2009 by questioner

[vint1954]

Good find. Answers the question

[questioner]

Good find. Answers the question

 

Ah good - I shall pinch a bit and Lilly's letter and also add....

 

Sirs

Further to all the previous points that I have highlighted which make this alleged account unenforceable and most especially the fact that the agreement you sent to me holds un unknown number to the file being perused, please take heed of the following. I note that the scanned Notice of Assignment that you previously sent to me was improperly executed thereby invalidating absolute assignment to you. I request that you confirm that the file will now of returned to source .

[vint1954]

Have a look back here at later posts. It explains further the requirements of service and the need for a signature, plus accuracy on dates and amounts.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/221824-unenforceable-credit-agreements-24th-10.html#post2669679

[questioner]

I draw to your attention the following.

I note that the scanned Notice of Assignment that you previously sent to me was improperly executed thereby invalidating this alleged absolute assignment to you from GE. The Law of Property act 1925 is specific. Any valid Notice of Assignment must be signed by the Original creditor (assignor). The debt is sold under a deed. The partial scan you sent to me was unsigned and thus worthless as any lawful document. I furthermore was not informed by GE of this action.

Clearly this legal requisite has been disregarded by both you and the Original Creditor on the service of this bogus Notice of Assignment.

Such an essential document must also be served by hand, or special delivery to ensure that the debtor has proper possession of the article. Ordinary post will not suffice. The one sent by CL Finance failed to comply with lawful requirements.

I must therefore insist that you confirm that this file will now be returned to Santander for proper conclusion.

Since this unlawful assignment you have happily drawn monies from me in a questionable manner due to the above. I must therefore now consider further advice.

I welcome your proposals to finalise this somewhat distressing affair.

[vint1954]

I would change the word bogus for invalid.

[vint1954]

Also, keep up with the other thread as others are posting

[questioner]

shall do - many thanks vint......

 

Q

[citizenB]

Hi Q, those are valuable links that vint has directed you to.

 

Before writing to CL or GE, I would take time out to read all of them carefully. Firing off letters with just "part information" can be dangerous and give the opposition time to "amend/alter" things.

 

Along with the information that Vint has already supplied you should remembr that the NOA, is dated 10 September 2008 yet they say within the body of the assignment section that it was assigned in December 2007.

 

Plus we now also know that this should have either been hand delivered or sent be recorded delivery... oops

 

You really need to see the original Deed.

 

Perhaps something will reveal itself in the Subject Access Request.

[nicklea]

Hi,

 

There are a few things that I think are wrong with what you have said:-

 

 

I draw to your attention the following.

I note that the scanned Notice of Assignment that you previously sent to me was improperly executed thereby invalidating this alleged absolute assignment to you from GE.

 

A notice of assignment doesn't need to be "executed" and so it cannot be "improperly executed" either.

 

The Law of Property act 1925 is specific. Any valid Notice of Assignment must be signed by the Original creditor (assignor).

 

This is wrong, have a read of the Act and also see Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 ALL ER 824

 

It doesn't need to be "signed" by anybody and may come from either the assignor or the assignee.

 

The debt is sold under a deed. The partial scan you sent to me was unsigned and thus worthless as any lawful document.

 

Is this the actual deed of sale that they sent you?

 

I furthermore was not informed by GE of this action.

 

You don't necessarily need to be informed by the assignor - see above

 

Clearly this legal requisite has been disregarded by both you and the Original Creditor on the service of this bogus Notice of Assignment.

Such an essential document must also be served by hand, or special delivery to ensure that the debtor has proper possession of the article. Ordinary post will not suffice.

 

I'm afraid there's a bit more to it than that. The Act actually speaks of "notice" and not "a notice" the whole point being that the debtor is aware of who he should be paying his debt to.

 

The important thing about the Act requiring delivery by hand or by registered post is that it gives you deniability of having received any notice. So, if it goes to court and they had sent you notice by ordinary post then you have a complete defence - with one exception.

 

That exception is if you have already been communicating with CL Finance in writing before they issued you with a court claim. The reason is - why would you be communicating with CL Finance about your debt unless you had received notice of it being assigned to them.

 

I don't know the timeline of events in your case, but it is very important not to acknowledge any communication from the assignee until after they have issued a cliam against you, otherwise you lose your defence, regardless of whether they have sent the notice of assignment properly or not

 

 

The one sent by CL Finance failed to comply with lawful requirements.

I must therefore insist that you confirm that this file will now be returned to Santander for proper conclusion.

Since this unlawful assignment you have happily drawn monies from me in a questionable manner due to the above. I must therefore now consider further advice.

I welcome your proposals to finalise this somewhat distressing affair.

[questioner]

OK FOLKS - SO i SHALL RIP UP THAT PROPOSED LATTER TO CL.......

 

Point was that the NOS wa not something I had been sent by the OC and it was not signed. I only got to find out months later by CL..

 

VERY CONFUSING.

 

And no one has even bothered to explain why the agreement sent has a different number on it or why it was changed..

[vint1954]

From Lillywhite.

 

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( simple) 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.

 

************************************

 

s136 LPA 1925

 

136 Legal assignments of things in action

(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 M1Trustee Act, 1925.

(2)This section does not affect the provisions of the M2Policies of Assurance Act, 1867.

[F1(3)The county court has jurisdiction (including power to receive payment of money or securities into court) under the proviso to subsection (1) of this section where the amount or value of the debt or thing in action does not exceed [F2£30,000].]

Annotations:

 

*************************

 

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.

 

****************************

And regarding accuracy of the NOA.

 

In the case of W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 did set out however that the date of assignment must be correctly stated or the assignment is ineffectual in law so there are constraint upon the accuracy of the document

 

Also the figure must be correct or the assignment is again ineffectual

 

Readin further on the NOA, it must be served on the debtor, meaning that it must be served by hand or by registered signed for post. They just ignore it though and I guess that the lower courts may not have a clue.

 

****************************

 

I think you need to read and digest before sending any letters. As CB has said, act in haste, repent at leisure.