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    • draft order   Leicester County Court County Court 90 Wellington Street Leicester LE1 6HG   In the Leicester county court Claim, No 164MC057 Before District Judge McClure Dated 23//10 2020 Claimant/s Mrs XXXXXX Mrs xxxxxxxxxxx  (nee xxxxxx xxxxxx) and Defendant Goosedale Ltd T/A Goosedale Draft Order IT IS ORDERED THAT: 1. Pursuant to CPR 19.4.1 and CPR 19.2.2 (a) it is requested that a second claimant xxxxxxxxxxx be added to this claim. It is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings. 2. The proposed amended particulars of claim be reserved Pursuant to Practice Direction 19 (2.1) ###### End of Order ###### Amended Particulars of claim for N1. The claimant and second claimant joinder seek reimbursement of £7700 paid to the defendant on XXX date 2019 in respect of a frustrated contract for a wedding venue booked for the XX date 2020 and which was cancelled by the defendant as a result of implementing government restrictions in respect of Covid 19 Legislation. The principle claimant makes this claim pursuant to Contracts (Rights of Third Parties) Act 1999. The defendant has refused to refund the contract price. The claimant seeks £7700 plus interest plus costs.        
    • I attach the N244 AND Letter and the defendants letter below in order as I complete each step   Thank you I will send these via email to the Court after 13.00hrs cag N244.pdf
    • Young people are still the most likely to be losing out in the job market during the current pandemic. Our Operations Director joined careers experts from Scotland and Wales on the BBC Radio 4 programme Money Box. View the full article
    • Thank you Andy no nothing has changed its still the same for £7700 I was going to include the interest and costs, but I understand the claim now a little better, we have been told to work from home, I have printed off the N244 as I could not save a copy I have detailed everything as stated.   I will post up the two letters to be attached the defendants and my daughters, can ii add that she gives me permission to represent her in court as she will be abroad when the claim goes to Court I can get a witness statement from her to confirm this too.   So with the application N244 completed as above for £7700 plus costs and interest I will attache my daughters letter as detailed under Sec 19 (2.1) Defendants letter giving no objections    I will send this by email tonight after I have finished work
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help going to lose my home. dca


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Blackbear, what is you want to know from the courts?

 

If you state what it is that you are after then someone maybe able to give guidance on how to ask.

 

If I am correct, that is what you are wanting to do still isnt it?

 

WMW

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as the judge and pt said the set aside is out the window, i think he is 100% correct, but he knows another way, and this is where i must listen,

quote:

If the agreement is defective however, then a counterclaim can be brought even if there is a possession order, you can bring such a counterlcaim on the basis of the Court of Appeal Judgment of Southern District Finance vs Turner

 

 

 

My opinion personally, is it may be possible to have the judgment set asidelink3.gif on the grounds of legibility, it would require a detailed witness statement from yourself, the application notice, and a draft order giving directions for trial after the judgment is set asidelink3.gif

 

We have Carey v HSBC which assists us as the High Court made it plain that the charging order was enforcement and the Claimant cannot enforce if he is in breach of s78(1)

 

 

you could throw in a counterclaim if the court is not minded to set asidelink3.gif on the basis of Turner as an alternate approach, say you could provide two draft orders one for the setasidelink3.gif and one for the counterclaim and give the judge the option

 

I have done this before on a Carcraft agreement where there was a CCJ and charging order so it is possible

 

i may even be able to dig out the case and the judgment and the application i used BUT i cannot breach client confidentiality so i will need to remove some of the info.

 

 

This case has legs, it can be won, but i just think that the strongest points need concentrating on

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My opinion personally, is it may be possible to have the judgment set asidelink3.giflink3.gif on the grounds of legibility, it would require a detailed witness statement from yourself, the application noticelink3.gif, and a draft order giving directions for trial after the judgment is set asidelink3.giflink3.gif

 

Forgive me but how is that saying 100% that a set aside is out of the window? This is what was posted by PT.

 

If I have read wrong then, apologises ;)

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no wish me well, i said that because the judge said i had no chance, i have rang many soliciors, who all said the same. pt is right on the set aside, its been to long. i said i think he is 100% right

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When must the court set aside the judgment?

 

 

 

The court must set aside the default judgment if you:

  • have paid the whole amount owed (including any interest and costs) before the date the creditor entered judgment;
  • sent back the acknowledgment of service form within the time limit;
  • put in a defence within the time limit; or
  • sent in the reply form within the time limit asking for more time to pay.

The court must set aside the judgment in these circumstances, even if you do not have a defence.

There is no time limit for making an application on these grounds.

 

If the judgement was obtained by default then whats the issues that all of the solicitors have with it being 'out of time?'

 

wmw ;)

 

you entered a defence did you not?

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our wires are getting cross here, the judge said i had a judgement by default in the bradford court, but i had the ccj ( judgement) in wrexham where i failed. i think the courts papers was just a error , tried to ring bradford to shed light, but cant get thru

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Surly with the facts pointed out above, there is no need to go into great detail on the set aside as this is what a court MUST do!

 

You aknowledged the claim, Yes?

 

You defended the claim, Yes?

 

You obtained a judgement by DEFAULT, yes?

 

there you go, the court MUST SET ASIDE on these grounds no matter how long you have left it sat in a dusty draw, or under a bed or in the back garden.

 

Kindest wishes

 

WMW

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the only thing that looks positive is to seek pt advice on what he said on entry 234 he has done this before and won.

 

Good luck with it all blackbear, yes you are probably right, wires crossing. I dont see the full picture so better off to step back and let PT sort it, as hes done this before.

 

Kindest wishes sent

 

Wish me well:)

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Wish Me Well, You have been very helpful to Blackbear,

no doubt Pt and Mould will be back soon to help.

Edited by Paults

If my advise is good feel free to tickle my scales

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Hello blackbear, (I know you are off-line)

 

 

This is a short message by me, The Mould.

 

 

Quite often in every day and in all walks of life people say things to and about each other, sometimes the words that are said are said deliberately to hurt or offend the other person, and sometimes the words that are said are said in error.

 

As humam beings, we all walk a path that is entombed with conditions, so we find that to be unconditional when we use our minds, is an almost impossible task to take on and secure with a successful outcome, however, as mentioned in the above paragraph, we control the things that we say and do, but we have no control with our concious minds over the mistakes that we might make, we only realize the mistake has occurred after the fact.

 

In nearly all postings by me I have stated that I fight for Justice, this is true, and for me, to fight for Justice means putting right any wrong, for injustice takes on many a different form.

 

On this site yesterday, on this particular thread, I made some comments about one of the site team members, his name on this forum is pt.

 

Yesterday I was told something, I got the wrong end of the stick and I made an assumption, and this was a mistake by me to do this, for I do know that any matter requires a thourough and proper investigation in order to establish the facts of the matter.

 

I made a judgment in error, and I posted some comments about pt, after reviewing the facts, it is clear to me now, that my comments about pt were unfounded, and so I say, that I regret making those comments about pt and I respectfully ask anyone who has seen those comments made by me, to ignor those comments as they are not fact.

 

This was a genuine error on my part, I made this mistake because I rushed in without being in possession of the full facts, there was no intention to purposely cause any damage or any hurt to pt's reputation or emotions.

 

I have spoken to blackbear (Yesterday) and he is a really decent fellow, there are many thousands of good fellow's up and down this fine United Kingdom, pt is most definately one of those good folk, and so I salute you pt for all of the hard work that you do out there on the frontline in those fields of action in the seemingly never ending battle undertaken in the name of Jutice by the many defenders of good people.

 

Thank you.

 

Kind Regards to you all

 

The Mould

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Blackbear,

 

I am going to carry on giving you any assitance that I can, so just ask blackbear, I am still loking into your case.

 

On another note, I do not agree that a legal assignment has occurred, the letter of the law, sec 136 of the Law Of Property Act 1925 has not been complied with in order to accept that wording on your default notice, that indeed a legal assignment has taken place, only an equitable assignment has been transfered.

 

Clearly Arrow Global have not been challeged in your case, and they are acting in such a way as to hold the courts under the belief that they do have a legal right to bring the action that they have and to of done so on their own.

 

Yes I agree that the credit agreement is a major part of your defence along with the legislation that applies to credit agreements, but also the assignment part to your defence is indisputable.

 

I have said before, the law is the law, and all laws apply to all people and businesses in this fine United Kingdom, we cannot have the letter of the law being used selectively, because that will never keep those scales of Justice balanced.

 

Kind Regards

 

The Mould

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Being able to say I was wrong and say sorry says a great deal about The Mould. I think Pt is one in a million have followed loads of his postings! Just to say you are all fantastic people just for trying to help others this site has helped me more than it or anyone on it will realise.

 

I will be making a donation when I have some spare cash and will continue over the coming months and years. As for sure this site is one of the true miracles of the internet.

Be kind, for everyone you meet is fighting a hard battle. Please do not PM me I do not use the PM service. Please use a link on my thread for any help or to talk.

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Thanks guys,

 

Right,

 

Blackbear, yes it is a struggle, i must state this from the beginning, its not an easy road what ever route you take, it is a horrible thing you are fighting

 

Now, to set aside, one thing that troubles me, i am sure you said you filed an admission that you owed the money

 

If this was indeed done, then it may prove a insurmountable hurdle as the court may take the view that you have admitted the debt therefore the judgment is sound

 

We should not forget, the Consumer Credit Act 1974 provides that a DEBTOR can consent to enforcement of an agreement even where it is unenforceable, even IRREDEEMABLY unenforceable

 

 

There is the option of a counterclaim, but again, this is no easy road to tread, you only need to read the Southern District Finance v Turner case to see that

 

So its a case of having a long hard ponder on how you want to move forward

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Which way are you going to go with this blackbear?

 

I wish I could be more use but I havent actually dealt with ccjs (yet):rolleyes:

 

Well I do hope it all works out ok, if I can help I will

 

kindest wishes

 

wish me well

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i think the best way to go is left up to pt. he has the most experiance, in and out of court. we all need to do some research on

Carey v HSBC and Southern District Finance v Turner. pt must ask himself is it worth doing, is the chance of wining above 50%. i know there is no way of knowing the outcome, but in his experiance is the out come is low. then its not worth it. what do you think pt

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letter off the dca today, its about that cpr request i think

 

we write further to your letter dated 2nd may 2010, the contents of which are durly noted. with regards to your request for the original signed agreement, further to the case of carey v hsbc our client is under no obligation to provide the original signed credit agreement. we will however request a reconstituted agreement/terms and condision from our client.

we would like you to contact this office to discuss the account. fairfax solicitors

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well, nearly right

 

Carey does allow for a reconstituted agreement where the original has been destroyed.

 

But the copy must be an honest and accurate copy and must not be mere conjecture.

 

So, it will be interesting to see what you are sent.

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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.

Edited by WA_Newman
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Here is the information on assignment. Hopefully it will be of help to some.

 

Statutory Assignment

 

The English Supreme Court of Judicature Act 1873 introduced a statutory assignment. S 25(6) of the 1873 Act has now been replaced by s 136 of the Law of Property Act 1925. In simple terms, an assignee of a valid statutory assignment could now sue the debtor in his own name. This is effectual in law to transfer to the assignee from the date of notice of assignment the legal right to a debt or chose in action, all legal and other remedies and the power to give a good discharge for the same without the concurrence of the assignor.

 

However, to create a statutory assignment, four conditions must first be satisfied, namely (1) the assignment is in respect of a debt or other legal chose in action; (2) the assignment must be in writing under the hand of the assignor; (3) express notice in writing of the assignment must be given to the debtor, trustee or other person from whom the assignor would have been entitled to claim the debt or chose in action; and (4) the assignment must be absolute and not purporting to be by way of charge only. Such an assignment is subject to equities having priority over the assignee, that is, the assignee takes the assignment subject to any defects in the assignor’s title and all other claims the debtor may have against the assignor. The assignment takes effect from the date of receipt of the notice of assignment by the debtor, an exception to the postal rule that acceptance takes effect upon posting. (See Holt v Heatherfield Trust Ltd [1942] 1 All ER 404.)

 

As regards condition (1), the “debt or other chose in action” must be one that is existing at the time of assignment, albeit the debt is payable later. (Earle v Hemsworth [1928] All ER 602.)

 

As respects condition (2), the assignment has to be in writing under the hand of the assignor. In other words, if an agent signs the assignment, then this will be ineffective. (Wilson v Wilson 1880 5 Ex D 155.) The assignment must still be one of absolute assignment and not by way of charge.

 

Condition (3) requires an express notice of assignment in writing to be given to the debtor so that the debtor knows to whom he must now pay the debt. Consent from the debtor to the assignment is not necessary. The date of assignment must also be stated correctly, (Stanley v English Fibres Industries Ltd (1899) 68 LJQB 839) albeit if no date is given at all, the notice is still not defective. (Van Lynn Development Ltd v Pelias Construction Co Ltd [1969] 1 QB 607) The notice will also be bad if the amount of debt has been stated incorrectly. (W F Harrison & Co v Burke [1956] 2 All ER 169.)

 

Upon receipt of the notice, the debtor must make all payments of the debt to the assignee and not the assignor and if he pays the assignor without the consent of the assignee, he may have to pay the assignee all over again.

 

Condition (4) is perhaps the most important, that is, the assignment must be absolute and not by way of charge. Generally, the requirements of an absolute assignment are: (1) the assignment must be in respect of the whole and not part of the debt (Jones v Humphreys Ibid.); (2) the assignment must not be conditional and (3) the assignment must not be “by way of charge”.

 

If the assignment fails to meet the above conditions, then the assignment will be an equitable assignment in which case the assignee has to join the assignor as a co-plaintiff but the assignor is entitled to sue direct.

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