help going to lose my home. dca

[pt2537]

Hi,

 

Blackbear has PM'ed me to ask for my advice on Assignment. I have read all of the posts on this topic, some of which have become quite heated.

 

Here is my 2 cents worth. There seems to be some confusion regarding the justice, law and the workings of the court system. The Law is not always the same as Justice.

 

In Blackbear's case there is no real doubt that Assignment has taken place. The Default Notice even refers to it.

 

The major question is whether statutory (or legal) assignment has taken place. For an assignment to be considered statutory (or legal) certain conditions must be met. A detailed posting including case law is contained on my previous thread.

 

In summary the conditions are:

 

Must be in writing.

 

Must state absolute assignment.

 

Date of notice must be correct. (although an undated notice is also correct).

 

The amount owed must be correct.

 

The Notice of Assignment becomes effective in law when received by the debtor. Proof of posting is insufficient. Unreturned registered post is ONE of the methods of delivery that is sufficient proof of receipt.

 

If one or more of the above conditions is not met then the Assignment is not Statutory (or legal) but may be Equitable Assignment. The big difference is that an assignee is only able to enforce legal action in its own name if the assignment is Statutory (or legal). With Equitable Assignments the assignee can instigate legal actions in its own name, but must be joined by the assignor in order to have a court enforce the action.

 

In Blackbear's case there is no way of knowing whether the assignment was Statutory (or legal) without seeing the Notice of Assignment and the proof of receipt. Making reference to assignment in a Default Notice does make the assignment Statutory, although failure to challenge the assignment MAY estop you from claiming this in the future.

 

My advice is two-fold. Firstly write to the assignee asking for a copy of the Notice of Assignment and proof of receipt. The proof could be your signature on a registered letter receipt or a signed Stat. Dec. from a process server etc. The assignee has to prove you received a valid Notice of Assignment if you raise this as a defence. If you fail to raise this (as has happened previously) the assignee doesn't have to prove it.

 

Secondly, you can chose whether to accept or reject any advice on this forum, but I urge you to engage legal council. These Debt Collection **** attend court preying they meet a defendant who represents himself.

 

I studied Consumer and Business Law at university, and I know how to research a subject and present a case in court (I've never lost a single case), yet when it is important I employ a skilled and experienced lawyer who does this on a daily basis. Right now I have assembled a legal team that includes two barristers to take down a particularly nasty bunch of crooks masquerading as debt collectors.

 

Blackbear, ask yourself: If you were the DCA going into court, who would you sooner face, a lay debtor, or an experienced and knowlegable lawyer?

 

There is another truth that nobody speaks about. Some judges (not all) will look at you as just someone who has gone on a spending spree with someone else's money and is trying to use the court to get out of paying. The creditor's lawyers will present a well-practiced argument that his client is owed the money that was borrowed to you and that you have refused to repay it, forcing the court action. Without a reasoned argument backed by statute, and case law, you have very little chance of even being heard. Ranting on about justice to a judge will get you as far as I would get singing on Britains Got Talent.

 

Well, i cant say i disagree with the post.

 

I have an example of the LIP vs the Lawyer at present, we had two identical cases, the facts 100% mirror each other and the case we took to trial succeeded, the LIP has just had leave to appeal granted by the court of appeal

 

So it is a lot more difficult for the LIP, not least because he will not be as well versed in the legal arguments and therefore if taken off the written script by counsel he could be left unable to reply to a legal point.

 

The one point i would raise, according to Halsburys laws and the research materials i have such as Chitty you are correct on the assignment points, i agree the assignment must be absolute and not by way of charge, however, there is no authorities i can find that says the notice must say that it is absolute, the notice merely needs to make clear to the debtor who he has to pay, that there has been an assignment and if dated then the date must be correct and the amount that was assigned should be correct.

 

I considered that , given there is no statutory requirements as to the form of a notice of assignment save for that already stated and given that Blackbear has a notice (albeit a default notice) which tells him there has been an assignment and that he has to pay arrow £xxxxx's then that would be sufficient to satisfy the requirements of the LOPA 1925, indeed i have seen many judges hold that such a notice would suffice in satisfying the LOPA

 

I think the biggest problem here is simply that there has been an admission filed with the court admitting the debt

 

That the CCJ is very old now and challenging it will be extremely hard to do, indeed setting aside the judgement will be neigh on impossible it seems, certainly counsels view is it would be likely to fail and the risk is if it succeeded, then adverse costs would be ordered against blackbear.

 

There is of course the failing to provide a legible agreement , but there appears mixed opinions from my learned friends in chambers as to how helpful it is, in light of Rankine v Amex

 

If the agreement was live at the request, then we are on more stable ground, if it was terminated then the s78 request fails

 

This is going to be an uphill battle i fear, its not justice i agree, but its the law

[WA_Newman]

pt2537, I stand corrected.

 

"Must state absolute assignment."

 

Should have read

 

"The assignment must be absolute and not purporting to be by way of charge only."

 

If Blackbear admitted receiving a notice (albeit a Default Notice) with the correct amount, where the date was correct, and the assignor and assignee were clearly stated, along with sufficient information to identify the account, it would be very difficult to argue that it was invalid under the LOPA 1925.

 

I haven't seen the CCA but if it doesn't legibly contain the prescribed information it is a better route.

 

 

Blackbear, I would really encourage you to seek an experienced lawyer given how far this has gone, and what is at risk. Also, have you contacted your local MP for help?

[The Mould]

Hello blackbear,

 

I will say it again, in order for a Notice Of Assignment to be legal, effectual in law, it must be signed underhand in express notice by the assignor and be absolute, not by way of charge only, (MBNA in this case) and delivered by recorded post to the debtor (blackbear in this case), If none of the statutory provisions of sec 136 (1) are complied with, then the assignee only holds 'Equitable Assignment' only.

 

MBNA - the assignor in this case, must join the assignee - Arrow Global in this case, as a party to the action,BEFORE any action can be taken.

 

In blackbear's case, Arrow Global are in posession of 'Equitable Assignment' and had no legal right under any laws of this England to bring the action in its own name against blackbear, the CCJ has been obtained in error and issued incorrectly, the CCJ is unsafe, the court has been mis-led by Arrow Global, who had a great legal advantage over blackbear, and this knowledge afforded Arrow Global to know that they had no legal right to bring the action in its own name, Arrow Global have been acting as a sub-contractor for MBNA as a direct result of having only an 'Equitable Assignment.

 

 

Kind Regards

 

The Mould

Edited May 20, 2010 by The Mould
Adding something

[WA_Newman]

Hi The Mould,

 

Your passion for helping people knows no bounds, and I have great respect for you. I sometimes imagine you wearing a cape!

 

However, your post contains a couple of errors:

 

I will say it again, in order for a Notice Of Assignment to be legal, effectual in law, it must be signed underhand in express notice by the assignor (MBNA in this case) and delivered by recorded post to the debtor (blackbear in this case),

 

An assignee is allowed to issue the actual Notice of Assignment, which is usually written into the Deed of Assignment or Sale Agreement. Delivery by recorded post is only one of the methods allowed. The reason recorded post is allowed is that it proves receipt of the Notice, and a Statutory Assignment is not efective in law until received by the debtor. Blackbear has admitted receiving the Notice (albeit called a Default Notice) so it would be difficult to say that no notice of assignment was received.

 

MBNA - the assignor in this case, must join the assignee - Arrow Global in this case, as a party to the action,BEFORE any action can be taken.

With an equitable assignment of a legal chose the assignee may sue the debtor party in his own name but, as the legal title remains vested in the assignor, the company or trustee must be joined in the proceedings before the assignee can recover any damages (Weddell and Another [1988] 1 Ch 26). (reference post 20 on this thread).

 

If an assignee commenced legal proceedings believing that it had Statutory Assignment but later discovered it only had Equitable Assignment it can apply for the assignor to join the assignee in the action after it had commenced, but before it was enforced.

 

These are relatively small technical issues, but are important to some people lodging a technical defence.

[rhodium78]

Without causing some confusion...

 

The Mould... under the hand of the assignor refers to the agreement between the assignor and the assignee not on the NoA.

 

Assignments are nothing new and have been going on in contract law and banking law for eons now.

 

Normally assignees give a NoA, not for the purposes of suing as they can do that already and join the assignor as a defendant or claimant depending on whether they want to play ball, but to ensure that no variation of the agreement sold to them is agreed between the debtor and the assignor, and also to ensure that the debtor pays them and not the assignor as they have no recourse in law if they don't give the NoA and the debtor carries on paying the assignor. There are other reasons too but it is beyond this discussion.

 

The debtor has no automatic right to see the contract between the assignor and the assignee when the debt is assigned and if the debtor is not sure about the assignee having the rights for this debt, the debtor can always pay into Court the debt in question. That would be my counter argument to that point.

 

There are ways to get round this, for example via a CPR request if the assignment is mentioned in the PoC or if you want to query the fact that the assignee can give you good discharge but then see previous paragraph about paying it into Court.

 

I have not come across one case law going back over 100 years where a case failed because a registered letter was not used. If you can point me to one, that would be appreciated.

 

In addition, it maybe argued that the OP is estopped from claiming otherwise (Pearson Education Limited v Prentice Hall of India Private Limited [2005] and referenced cases) because they stated they received the default notice and within the default notice there is the assignment. Good practice dictates that there is a tear off slip for the debtor to send back to the assignee that they acknowledge the debt (priority) but I have only seen that in commercial debts where the assignment consists of 6 figures up, not DCA to consumer. Therefore it's a mute point.

 

Just to qualify your statement WA_Newman...

 

"If an assignee commenced legal proceedings believing that it had Statutory Assignment but later discovered it only had Equitable Assignment it can apply for the assignor to join the assignee in the action after it had commenced, but before it was enforced" + and the assignor must not be a non-claiming plaintiff.

 

I agree with PT about LoPA 1925 being a weak argument in this context...

 

I feel the OP should be seeking a DA Barrister who specialises in Banking/Contract/Consumer law. With all due respect to all the knowledgeable caggers who do an awesome job and that is testified by their successes here, IMO this is one case that can't really be directed out of an arm chair with just a few hours reading on lexis/westlaw/lawtel or any other law db or book on the basics of assignment and equity.

[pt2537]

agree there Rho, apart from one point where you are, im afraid to say, slightly wrong

 

The Debtor is entitled sight of the assignment to ensure that the assignee can give him a good discharges as Lord Denning so helpfully put it.

 

So i would argue that i am entitled to view it, and furthermore, i would also say that it goes directly to the question of Locus as to whether the Claimant is entitled to sue in its own right

[rhodium78]

There are ways to get round this, for example via a CPR request if the assignment is mentioned in the PoC or if you want to query the fact that the assignee can give you good discharge but then see previous paragraph about paying it into Court.

 

Errr... you are agreeing with me not disagreeing with me and if you agreeing with me, then either we are both wrong or we are both right. LOL. Confusing I know. You can see the contract if you doubt the fact that the debtor can give you good discharge (http://www.consumeractiongroup.co.uk/forum/legal-issues/256369-notice-assignment-debt-property.html#10) but there is still no automatic right in statute to see it despite the one case (CA) saying you are entitled to see it:

 

"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".

 

My only point being in all this is that view of the assignment can be argued against (putting on opposing counsels hat) and if the debtor is aware already that the assignee has assigned the debt to xyz company via a SAR, and the assignee has sent a NoA stating that they own it fully and are the legal owners. Then the debtor is estopped from claiming otherwise as it is obvious that the assignee can give good discharge. Better stop now before I give DCAs any ideas or free advice. It all depends on how good the arguments are on the day. You know that as well as I do.

 

Ps. If any DCAs have benefited from this, please donate to CAG £145 for the 30 minutes preparatory work I did here. I will invoice you. LOOOOOOOOOOOOOOOOOOOOOOL.