Link Financial -ford credit return of goods order - lost

[olympic1805]

Hi Emandcole,

So this "Restore Hearing" date which is set for March, is this just Link requesting another Hearing Date ?? (The court letter says time allowed is only for 10 minutes !)

Could the Judge possibly say No to Link's request.

As for the DOA requested this on 22/4/10 and 30/4/10 and CPR 31.14 26/4/10 and 12/5/10

Surely do you think this means that Link have now got a copy of the DOA or made one up ????

 

Sorry what does VT'd mean ???

[emandcole]

VT - Voluntary Terminated. Not certain enough about the how and why of the 'Restore Hearing' but I would guess that if you could demonstrate to the court why perhaps another hearing should not be granted that would make things very hard for them. After all, it is them who didn't turn up last time so why should you not have some say in what happens right now? I'd have asked for costs as well if they didn't turn up to their own claim. You have nothing to lose by sending a well constructed argument as to why another hearing shouldn't be given so worth a shot I'd have thought.

 

I'll go over the thread again during the week to recap all of this as I can't recall the various ins and outs of your case. A good start would be to provide a list detailing what has happened and when, for example when you requested docs, what date you got anything sent etc. That way we can look at that and hopefully spot some gaps and suggest a way to progress this.

[olympic1805]

Hi Emandcole, sorry its took a bit ..

Quick recap:

Bought car £33144.08, paid and outstanding now £8064.64.

Tried to give car back but Landrover said we had missed the date, could not re finance, only missed date due to them telling me wrong info !

12/11/09 LR Default

28/1/10 LR sent letter assigning debt to Ford Credit, who then re assigned to Link

1/2/10 Link sent letter telling us of Sale of Debt

12/2/10 SAR sent to LR and CCA sent to Link

4/3/10 Link sent back documents

22/3/10 Link sent us LBA

15/4/10 Link added £100 to acct for Litigation Charge

19/4/10 Received Court Papers - POC requesting o/s £8154.84,Return of Car & Costs

22/4/10 We sent Link request of DOA - never received

26/4/10 Sent Link CPR 31.14 request - never received

30/4/10 Sent LR letter requesting proof of DOA owed to Link - NEVER RECEIVED

30/4/10 Sent Link letter stating my complaint

4/5/10 Letter from LR saying proof of assignment to Link, cannot give DOA as a Confidential Document

5/5/10 Link sent copy of HP Agreement

12/5/10 Sent Link another CPR31.14 for copy of both DOA - NEVER RECEIVED

19/5/10 Sent my Response to Claimant

30/6/10 Link sent copy Witness Statement

21/7/10 DAY IN COURT - Link did not turn up, instead sent letter to try and negotiate payment terms, defended and refused .

23/7/10 Letter from Court "Adjourned with Liberty to Restore"

NO COUMMUNICATION UNTIL :

19/1/2011 Court letter as Link have requested "Restore of Hearing"

24/1/11 Link sent letter with increased charges on account ??

Sorry it is so long winded, but has been going on for some time. Can I ask the Judge to cancel the Restore, due to Link not attending the first hearing and also not

responded to my several requests proving they own this debt ??

Was getting a bit scared when I first got the Court Letter, but looking over the case I am furious that they can decided to request a restore ,when they have never

responded to my requests.

Fight on again, looks like another day in court !!!

Advice is more than welcome

 

 

 

VT - Voluntary Terminated. Not certain enough about the how and why of the 'Restore Hearing' but I would guess that if you could demonstrate to the court why perhaps another hearing should not be granted that would make things very hard for them. After all, it is them who didn't turn up last time so why should you not have some say in what happens right now? I'd have asked for costs as well if they didn't turn up to their own claim. You have nothing to lose by sending a well constructed argument as to why another hearing shouldn't be given so worth a shot I'd have thought.

 

I'll go over the thread again during the week to recap all of this as I can't recall the various ins and outs of your case. A good start would be to provide a list detailing what has happened and when, for example when you requested docs, what date you got anything sent etc. That way we can look at that and hopefully spot some gaps and suggest a way to progress this.

[emandcole]

All coming back to me now, this has been going on a long time hasn't it?! You can ask the judge anything so certainly, if you feel Link have displayed less than necessary levels of respect for their claim, the courts process and yourself ask away, they can only deny or approve your request so nothing to lose.

 

Given your repeated requests for information under CPR and their repeated failure to provide what you need I would be focusing on the assignment paperwork to prove they even have the lawful right to collect this debt. Given the fatc that LR have refused it stating confidentiality as the reason I wonder if the appropriate paperwork is actually in order, all the more so as the debt has supposedly then be reassigned from Ford to Link. Two seperate transfers of debt so twice the possibility of mistakes. You need to see the assignment paperowork from LR to Ford and another set from Ford to Link.

 

Go over the following concerning assignments, the case law is there to back it up so would suggest researching it and becoming familar with the points that are appropriate to your particular scenario. Don't make the mistake of just printing case law out and not understanding it, make sure you know the case so that you can present a well composed argument as to why that case law is also appropriate to you. Case law is superb but you can't just reference it and hope the court will do the work for you, even though as litigant in person the judge should cut you some slack in terms of formaility.

 

Remember at all times in this process that you need to help the judge to help you so hand them the ammo and allow them to fire it across. Another important factor to consider is that judges do not like Link Financial, they have a sour reputation and many judges will happily find in your favour if they can so try to help them to do that with good research and by knowing your beans.

 

------------------------------Assignment info you can use, adjust as needed as this has been re-hashed many times over

 

For the avoidance of any doubt, in the event of an alleged breach by the Debtor the alleged agreement remains at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

It is averred that in view of the defects in the Default Notice (Did we establish the accuracy of the default notice?) that any Termination Notice must be invalid and that the claim brought by the Claimant is fatally flawed.

 

The Assignment of the debt

 

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.

 

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—

 

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.

 

Have you actually had any assignment letters? The format is reasonably strict and I've seen a judge look at a Link template letter supposedly showing an assignment has taken place and hand it back to their representative informing them it was invalid. Even if you have had one (you might need two depending on actual ownership and transfer from LR to Ford and then from Ford to Link) what they may have sent may also be unacceptable.

 

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).

 

So, you will be requiring evidence that such a notice was sent from any party who have had the debt assigned to them. Is it clear as to who owned the debt at all points in time? EG Di Ford Credit actually own the debt or were they merely handling the debt on behalf of LR before Link 'bought' the debt? 1 or 2 absolute assignments?

 

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.

 

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)

 

As you have found it is common for a claimant to state confidentiality as a reason for not showing you the deed of assignment. At the very worst this deed should still be available and at the very least made available to the court for inspection. Do not accept a random list of names including yours on an A4 sheet, Link turn up regularly with this sort of thing and it is no more than an A4 with names on it. Anyone can knock that up!

 

It is further averred that to be valid the alleged notice of assignment must accurately describe the assignment (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169). It is submitted that any alleged notice of assignment cannot be accurate as it refers to an incorrect amount (Check to find discrepencies between any document and that of Link itself) Think about unlawful charges also which should render the amount incorrect. Look to expose their paperwork as they have added all manner of charges - as such ensure that this was permitted in the inception terms and conditions should you default. There should ideally be a clear tariff of costs to you as the debtor should you default, they can't simply start adding all manner of costs to suit themselves or where would it all end?

 

Quite simply if they cannot show they have the lawful right to be acting in this matter they will lose the case, having proved no more right to demand sums from you than any of us have so make sure they provide complete paperowrk history to cover the assignment of this debt.

 

That'll do for starters. Did you ever make an application to the court to force them to supply what you needed? The court will have expected you to do this if your earlier CPR requests were not met.

Edited February 10, 2011 by emandcole

[olympic1805]

Gosh after that I.m getting worried again !!!!

It is hard sometimes when I dont really know what I'm talking about !!!

Anyhow firstly I have never made the application to court for them to supply the DOA, so should this be my first action ?

and after that should it be my request for the judge not to allow the hearing ??

Other than letters to say the "debt has been assigned" I have never even seen a piece of A4 with my name on, they have just totally ignored my requests !

[emandcole]

Have just been going through your thread and picked up earlier bits about LR stopping you from VT. If you go back to page 7 and read through some of Jaspers stuff you'll see that this is certainly an angle you should explore, all the more so as you wrote that your SAR had revealed that you had discussed attempts/wishes to VT with LR at some point in the past.

 

How did you attempt to raise the funds to keep the car? Or was it simply a look at income vs outgoings and deciding you would be better off surrendering the vehicle? If you could show, perhaps via a credit application that was refused for example, that you attempted to raise funds to pay but couldn't that would add more weight to your argument that you wanted to terminate and hand back, and that LR didn't allow you to as it's not in their interests to allow customers to do this.

 

As for the CPR requests you have the agreement, the default notice (which you typed out I think, any chance you can re-post the original for us with photobucket or similar? as the link to it doesn't work anymore and I'd like to re-examine it) but are still missing the deed of assignment/s. You could make an application to the court which will cost you £75 but this might be well worthwhile. If Link cannot or will not produce it you could ask for strike out of the claim as a consequence of your application not being met. Given the slightly confusing nature of the transfer I'd be certain to push this fully.

 

As for the A4 sheet I mentioned ignore that for now, just that Link sometimes turn up with such a sheet and try to pass it off as a deed of assignment. We'll come to that later as required.

[olympic1805]

Hi,

Been looking through the SAR, and there is comments about me being misadvised by the Dealer regarding the VT, and also referring to us trying to refinance, but

unable to. As for the Loan applications . as you know these are done over the telephone and either accepted or declined there and then. If I did receive paper confirmation

of refusal I have obviously binned it, as I cannot find any paper work. However LR should definately have a record of their refusal, as we applied with them first.

Which NOD shall I post ? there is also notes in the SAR about an incorrect NOD being passed and Link need the correct one ! These SAR's are confusing !!

How do we go about making the application to court ?

 

 

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[emandcole]

Good, the Litigation Privilege looks great. You should definitely look to use the SAR notes, after all Land Rover through misdirection and misinformation prevented you from VT, a right you had. The SAR notes are very helpful so hold onto all of that. What defence have you submitted so far and what has been your main argument?

 

Does your credit file record searches by organisations - I believe they do. If LR pop up on there that would be very useful in order to show you applied for credit, couldn't get it and as such this further supports your claim that you were prevented from VT as clearly you were unable to access credit.

[olympic1805]

Will check my credit file, think you still get so many days free so will register online this weekend

As for defence, do you mean when we went to court last year ? Not compiled a defence for the March court date yet ??

 

Good, the Litigation Privilege looks great. You should definitely look to use the SAR notes, after all Land Rover through misdirection and misinformation prevented you from VT, a right you had. The SAR notes are very helpful so hold onto all of that. What defence have you submitted so far and what has been your main argument?

 

Does your credit file record searches by organisations - I believe they do. If LR pop up on there that would be very useful in order to show you applied for credit, couldn't get it and as such this further supports your claim that you were prevented from VT as clearly you were unable to access credit.

[emandcole]

I guess irrespective of date you'll have a main argument to (at least) question the amount they are trying to claim from you, even if you were to partially admit the debt, which I suspect you will not be doing. Clearly something might be owed but given the background you appear to have a few good counter arguments to offer. Did you indicate on your acknowledgement of service that you were intending to defend the whole claim? If you did what did you submit in the end by way of defence - your main points of contention?

[olympic1805]

I guess irrespective of date you'll have a main argument to (at least) question the amount they are trying to claim from you, even if you were to partially admit the debt, which I suspect you will not be doing. Clearly something might be owed but given the background you appear to have a few good counter arguments to offer. Did you indicate on your acknowledgement of service that you were intending to defend the whole claim? If you did what did you submit in the end by way of defence - your main points of contention?

 

Hiya,

 

Shall I scan n put it up, about 2 1/2 pages long, various reasons as Links failure to provide Document,s T & C, etc, and also yes we indicated to defend all the claim, I think maybe yourself or someone on here actually drafted the Defence letter for me.

[emandcole]

As they'd have seen your defence already there's nothing to lose by posting it up so yes please, that would be helpful. Just vet it first for any of your really personal details

 

Might be better to copy and paste the text from the original instead of scanning as well.

[olympic1805]

As they'd have seen your defence already there's nothing to lose by posting it up so yes please, that would be helpful. Just vet it first for any of your really personal details

 

Might be better to copy and paste the text from the original instead of scanning as well.

 

 

 

Response to Claimant

 

 

 

1.am the defendant in this action and make the following statement as my defence to the claim made by Link Financial Limited.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. I am unable to plead to the particulars as they fail to comply with Civil Procedure rules,in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the original document under CPR request which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.

 

5. The claimant has failed to provide a true copy of any regulated agreement and any applicable terms and conditions. The defendant also requires copies of any varied terms and conditions in the event of any unilateral variation in such terms throughout the life of any agreement. The claimant should also declare without delay any intention to rely upon a reconstituted agreement.

 

In the event that a reconstitution is relied upon because the original application has been lost or deliberately destroyed and if the court, all other matters aside, accepts the submission that a photocopy of an application is admissable I would expect the claimant to produce the following as a responsible keeper of data with reference to the Civil Evidence Act 1995.

 

Documents in Court - Civil Evidence Act 1995

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents.

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s).

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with.

 

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

 

6. The claimant has failed to also attach a copy of the Default Notice which they claim has been served under s87 (1) Consumer Credit Act 1974. The claimant should also provide proof of postage given the importance of this legal document. I put the claimant to strict proof that any default notice sent to me was valid.

I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

7. The claimant has failed to produce any applicable Termination Notice.

 

8. The claimant has failed to produce a comprehensive set of statements detailing the history of any debt. As such I have been prevented from auditing such statements and am in no position to comment on their accuracy or otherwise.

 

9. The claimant has failed to supply any Notice of Assignment, a copy of which the defendant would request in order to ascertain their legal standing along with proof of posting under Section 196 of the Law of Property Act 1925. The defendant would note that such a notice should have been issued by the original creditor and should accurately describe the assignment (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

10. The claimant has failed to supply a copy of the true Deed of Assignment or to make any effort to allow inspection of the same. Consequently, I require the claimant produces the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the claimant disclose proof of posting per s196 LoP Act 1925.

 

It is further averred that I am entitled, in any event, to view the Deed of Assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824). The claimant should therefore make immediate preperations to disclose this document and make it available for inspection.

 

11. Consequently due to the claimants failure to supply the documents required under the civil procedure rules and the fact that the claimant has failed to sufficiently particularize the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

 

12. I respectfully ask the court to use its case management powers to order the claimant to disclose all of the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim.

 

I am happy to travel to a reasonable location given by the claimant in order to examine such documentation at my own cost. It is anticipated that the defendant will then have an opportunity to determine the credibility and right of this action and to plead accordingly.

 

13. Alternatively, I respectfully request a stay in proceedings with a deadline for their production. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

14. In the meantime I further ask the court to consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that very little documentation in support of the claim has been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly. Clearly the defendant is having his right to defend needlessly prejudiced.

 

15. In addition, if the claimant cannot produce an original credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly.

 

16. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced under the Consumer Credit Act 1974 which is the relevant act in this case.

 

17. The defendant will consider any counter claim and provide details of this with permission from the court in my amended and fully particularised defence once the claimant has produced the currently missing documentation they intend to rely upon.

 

18. For purposes of total clarity the defendant is unable to respond to this claim and awaits a full response from the claimant.

 

Statement of Truth

 

 

 

 

Copy of our Defence Claim, should I be putting in the application to the court yet ?

[olympic1805]

Also sorry for delay, but not getting my email notifications when a post is done ??

[pt2537]

Response to Claimant

 

 

 

1.am the defendant in this action and make the following statement as my defence to the claim made by Link Financial Limited.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. I am unable to plead to the particulars as they fail to comply with Civil Procedure rules,in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the original document under CPR request which forms the basis of this claim.Where was the Claim issued, if it was the CCBC then your pleading is not relevent, however, one may take issue with the fact that the bulk centre trules say the party must be able to plead their case within 1024 characters and if they cannot then they should not use the bulkcentre but should use the normal county Court process, therefore , if they had used the normal process they would have had to attach the docs to the Claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed. You need to specify what charges you are on about? interest charges? late payment? charges payable due to accelerated payment clauses?

 

You see the problem there

5. The claimant has failed to provide a true copy of any regulated agreement and any applicable terms and conditions. The defendant also requires copies of any varied terms and conditions in the event of any unilateral variation in such terms throughout the life of any agreement. The claimant should also declare without delay any intention to rely upon a reconstituted agreement.

 

In the event that a reconstitution is relied upon because the original application has been lost or deliberately destroyed and if the court, all other matters aside, accepts the submission that a photocopy of an application is admissable I would expect the claimant to produce the following as a responsible keeper of data with reference to the Civil Evidence Act 1995.

 

Documents in Court - Civil Evidence Act 1995

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents.

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s).

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with.

 

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

 

The Difficulty one faces is that it is accepted practice confirmed by the High Court that a lender can reconstitute, and the difficulty seems to be that Judges are very happy to allow this to happen. When i have seen the Civil Evidence Act relied upon it has been quickly brushed aside by the judge, so be prepared for this

 

6. The claimant has failed to also attach a copy of the Default Notice which they claim has been served under s87 (1) Consumer Credit Act 1974. The claimant should also provide proof of postage given the importance of this legal document. I put the claimant to strict proof that any default notice sent to me was valid.

I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). A good point but the question will be did you receive a notice, that is more to the Point, if you did, was it compliant, if it wasnt, Why?

 

That is what you need to address, you are looking through the wrong end of the telescope.

 

7. The claimant has failed to produce any applicable Termination Notice.

 

8. The claimant has failed to produce a comprehensive set of statements detailing the history of any debt. As such I have been prevented from auditing such statements and am in no position to comment on their accuracy or otherwise.

 

9. The claimant has failed to supply any Notice of Assignment, a copy of which the defendant would request in order to ascertain their legal standing along with proof of posting under Section 196 of the Law of Property Act 1925. The defendant would note that such a notice should have been issued by the original creditor and should accurately describe the assignment (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

10. The claimant has failed to supply a copy of the true Deed of Assignment or to make any effort to allow inspection of the same. Consequently, I require the claimant produces the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the claimant disclose proof of posting per s196 LoP Act 1925.

 

It is further averred that I am entitled, in any event, to view the Deed of Assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824). The claimant should therefore make immediate preperations to disclose this document and make it available for inspection.

 

11. Consequently due to the claimants failure to supply the documents required under the civil procedure rules and the fact that the claimant has failed to sufficiently particularize the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

 

12. I respectfully ask the court to use its case management powers to order the claimant to disclose all of the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim.

 

I am happy to travel to a reasonable location given by the claimant in order to examine such documentation at my own cost. It is anticipated that the defendant will then have an opportunity to determine the credibility and right of this action and to plead accordingly.

 

13. Alternatively, I respectfully request a stay in proceedings with a deadline for their production. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

14. In the meantime I further ask the court to consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that very little documentation in support of the claim has been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly. Clearly the defendant is having his right to defend needlessly prejudiced.

 

15. In addition, if the claimant cannot produce an original credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly.

 

16. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced under the Consumer Credit Act 1974 which is the relevant act in this case.

 

17. The defendant will consider any counter claim and provide details of this with permission from the court in my amended and fully particularised defence once the claimant has produced the currently missing documentation they intend to rely upon.

 

18. For purposes of total clarity the defendant is unable to respond to this claim and awaits a full response from the claimant.

 

Statement of Truth

 

 

 

 

Copy of our Defence Claim, should I be putting in the application to the court yet ?

just a few observations in blue,

 

havent had time to go over the full doc yet due to work commitments

 

Did you make a section 78(1) request?

 

If you did why havent you pleaded that in the Defence

 

If they didnt comply then you must plead that too,

[olympic1805]

Hi, looked through and cannot see a 78(1) request ? Is that for a copy of the Agreement, if so a copy was sent back with the SAR request... !!

Looked at some of your comments,and sorry but get a bit confused ....but will try... The DN that they submitted to court was a old DN, so was not correct at the time.

As for where the claim was issued ? does that mean where we went to court ?? if so it was Preston.

Sorry if I appear to be a complete idiot, but do feel that way sometimes ..!

[olympic1805]

Hi there,

 

Just reading up a little and it says that regarding the Assignment as follows:-

 

f the Claimant was not zzzzzzzzzzzz 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.

 

As I have never seen a copy of the DOA, as they can't produce it, should this not be the main argument ?? or do you think Link may have it now, or could they "Make" one to fit ?????

 

 

 

As they'd have seen your defence already there's nothing to lose by posting it up so yes please, that would be helpful. Just vet it first for any of your really personal details

 

Might be better to copy and paste the text from the original instead of scanning as well.

[emandcole]

Thanks PT for adding your thoughts, appreciated. Olympic, PT is quite right to pick up on your initial defence and unfortunately the court will brush aside various arguments as they are looking at the bigger picture - sucks but true. Good rule to follow from here on in is that anything you state in any witness statement must be specific and very clear. As PT pointed out, where you dispute accuracy due to charges you should state what charges you are referring to - the court will want to know. Simple thing but very important.

 

As discussed previously I think one of your strongest arguments is based around the supposed assignment of debt, as you've picked up in the above post if the assignment is invalid then Link have no standing before the court so potentially this is a killer blow for the claimant. Given the fact the debt went from LR to Ford Credit and then from Ford Credit to Link I believe, after looking at the structure of the companies involved, that you should have two asssignment paper trails, not one. As for them making it to fit they cannot escape (ideally) the need to provide you with proof of posting if you use the case law provided earlier. This is to ensure at the very least that such paperwork cannot merely be re-invented to suit at a later date or it makes a mockery of the need to assign any debt correctly in the first place.

 

At what point in the past have you asked the claimant to provide you with proof of their right to act? Can you give us dates along with details of how you asked for this assignment information?

[olympic1805]

Thanks PT for adding your thoughts, appreciated. Olympic, PT is quite right to pick up on your initial defence and unfortunately the court will brush aside various arguments as they are looking at the bigger picture - sucks but true. Good rule to follow from here on in is that anything you state in any witness statement must be specific and very clear. As PT pointed out, where you dispute accuracy due to charges you should state what charges you are referring to - the court will want to know. Simple thing but very important.

 

As discussed previously I think one of your strongest arguments is based around the supposed assignment of debt, as you've picked up in the above post if the assignment is invalid then Link have no standing before the court so potentially this is a killer blow for the claimant. Given the fact the debt went from LR to Ford Credit and then from Ford Credit to Link I believe, after looking at the structure of the companies involved, that you should have two asssignment paper trails, not one. As for them making it to fit they cannot escape (ideally) the need to provide you with proof of posting if you use the case law provided earlier. This is to ensure at the very least that such paperwork cannot merely be re-invented to suit at a later date or it makes a mockery of the need to assign any debt correctly in the first place.

 

At what point in the past have you asked the claimant to provide you with proof of their right to act? Can you give us dates along with details of how you asked for this assignment

information?

 

Hi Emandcole,

Re the claim amount, they have claimed the money that is outstanding from the finance Agreement ? Is that not just an oustanding figure, rather than a breakdown of figures ???

As for the requests, on

22/4/10 sent Link a simple request "please provide me with ...", which was ignored

26/4/10 sent a CPR31.14 request, asking for the documents as follows: The Agreement, The Assignment, The Default Notice, and The Termination Notice. , Ignored !

30/4/10 sent LR a simple request "Proof of DOA" - to which LR replied with "DOA is a confidential Document and cannot provide, instead sent me a copy of their letter (28/1/10) to me stating "Acct assigned to FCE who have re-assigned to Link "

12/5/10 Sent Link another letter reminding of their duty under cPR31.14 to provide me with all documents relating to their claim, and copy of BOTH assignments . Ignored !

30/6/10 letter dated from Link, with Witness Statement, which had been filed at court and used as Evidence - Wrong Default Notice sent and No DOA , copy letter again (28/1/10)

 

Is this what you needed ? No matter how many times I read through all the paperwork I think I get more confused !!

Should I be requesting from Link again, what they intend to rely on in Court ?? Although they will probably ignore me again !! This worrys me that they are going to "pull something out of the bag" , can they do this ??

[olympic1805]

Just a thought but when we went to court, how come the judge ignored my request as follows :-

 

""12. I respectfully ask the court to use its case management powers to order the claimant to disclose all of the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim.""

[olympic1805]

Hi Emandcole, trying to PM you, but saying your box is full !!

[emandcole]

Sorry, full up. Cleared space now

[olympic1805]

Well given Link another chance, and surprise surprise, they have ignored my requests again !!!

Bring on the Court date, feeling fairly confident again now !!

[olympic1805]

Well given Link another chance, and surprise surprise, they have ignored my requests again !!!

Bring on the Court date, feeling fairly confident again now !!

[olympic1805]

Hi there,

As link have ignored yet another request to supply documents, I am now wanting to put in an application to the court, to either force their hands and show what they have, or at this point would I be applying to get it struck out ?

 

Any advice welcome regarding the application, court date is fast approaching !!

 

Many thanks