Arrow SD set aside Court hearing imminent-help!

[yampy1]

I have a set-aside hearing in a few days, following a (hand delivered) SD for a debt to MBNA of £5K. My application to set-aside is not based on any dispute of the debt ,which is quite recent and I have acknowledged. I have argued for a set-aside on the basis that there is a regular repayment plan in place that is being adhered to, also that here has been no CCJ prior to the SD and hence that the action is unnecessary.

 

Im worried that my arguments are weak and hoping that my presence in court may have some influence. Its a very worrying time. Does anyone have any advice?

 

Thanks all

[postggj]

Have They Supplied An Agreement

Default Notice

Notice Of Assignment

[yampy1]

Yes to all of those

[postggj]

Right

Have To Be Quick With This

 

Can You Post The Default Notice Onto Your Thread

 

Google Photo Bucket

[gezwee]

Have look over on this thread for some more views on Arrow and set asides

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/219589-mbna-trying-make-me.html

[postggj]

I Know Its Arrow But Arrow Are A Yank Company

 

Who Is The Dca

 

Marlin

Fredricksons

[lilly white]

 

The Assignment of the Debt

 

 

19. If the Claimant was not xxxxxxxxxxx then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

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—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. 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.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

[yampy1]

The original DCA was Optima Legal of Bradford.

I have to say that on checkling up/looking through my documents, I cant find an agreement (I assume you mean the original C/Card agreement?) or a notice of assignment. Is it a requirement that they have to undertake for the court? I also cant find the default notice but I think I may have thrown that away (probably a mistake!)

 

Would it be possible for me to ask that Arrow produce these in court and if they cant is that in my favour?

[yampy1]

The assignment info is useful, thanks Lily White. Does this imply that Arrow should produce in court or will they assume that they have already done so. If I cant remember having received one, would asking to see one at court be considered flippant by the Judge?

Edited November 2, 2009 by yampy1

[yampy1]

From Thread: "The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back"

 

May be woth noting that I am paying the debt (£5K) of with Arrow at £75 per month as suggested by payplan (2 payments so far). Also I should say that when I contacted the named person at Arrow a couple of weeks back to ask for details to pay electronically (SO) rather than by post, they refused to give me them, saying they'd rather wait until after the hearing.

[42man]

Please have a read here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/229924-bankruptcy-hearing-13-11-a.html

 

Is the default notice compliant ?

Does the agreement have the prescribed terms ? is it executed ?

Do you have a termination notice ?

How much of the debt is made up of excessive charges ?

Any PPI on the debt ?

 

And yes you are right, your case is weak and unless you have a major dispute, or they have committed an abuse of process, or it might be below the £750 threshold, then unless you get a very sympathetic judge, he/she may not set aside, being in a repayment plan is not enough excuse for a judge to set aside (although they should).....