Link claimform - re old GE Woodchester car finance - car repo'd - Caim for outstanding balance

[emandcole]

I've not completed one myself but if you get hold of it and fill out the obvious stuff we can help with anything you're unsure of. Should be very straight forward though, I imagine there will be a box asking you to explain what it is you want the court to do so detail briefly what has happened and ask for the original judgment to be set aside on the grounds that you submitted everything required on time but the court cannot find what was submitted in the drop off box.

 

It might not hurt (just to make sure you get the judges attention) to very briefly point out the more colourful aspects of the claim and state that given those irregularities the case really does need the full attention of the court.

 

As for Link, yes they really are pondlife and if you actually get a judge off the record in the majority of cases they will agree with that opinion. I am aware that in Northampton CC for example that judges there really do not like Link and often look to use whatever you have provided to give them a bit of a kicking, sadly however in many cases the litigant in person has not provided enough ammo for the judge to use and Link can get their own way.

 

This was actually confirmed by a female legal representative who takes assignments from Link as she has often felt the displeasure of the court when Link have failed to do something or have been caught out with one of the many games they like to play. Believe me, if you give the judge something to throw and Link are involved there are few who won't take some pleasure in actually throwing it. Preperation therefore really is important, help the judge to help you.

[Jasper1965]

Good luck with the set aside, assuming you get it the following might prove very useful to you:

 

"Notice of the assignment must be given to the debtor, and this must be in writing.

It does not have to come from the assignor, as long as it arrives prior to the attempt to

enforce the contract by the assignee.[122] The notice may, therefore, be given by the

assignee.

If an assignment is not effective under s 136, it may still take effect as an equitable

assignment".

 

[122] Walker v Bradford Old Bank (1884) 12 QBD 511; Holt v Heatherfield Trust Ltd [1942] 2 KB 1; [1942] 1 All

ER 404; Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101.

 

Source:-

THE MODERN LAW

OF CONTRACT

Fifth edition

Professor Richard Stone, LLB, LLM

 

Though it is difficult to lay ones hands upon I think the Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101 case law is the one which can prove fatal to the claimant who fails to notify the assignment prior to the commencement of proceedings.

[pabrmu]

I would speak to the court again and ask them to thoroughly check their records.

It's alright saying that you can apply for a set-aside, but you are goung to have to pay for this (£75 ?) when it is not your fault.

A question for Jasper 1965. Does this mean that a claimant must provide, or prove that they sent, a NOA prior to commencement of proceedings?

[Jasper1965]

Yes the burden of proof lies with the claimant here,

the OP already has Holywell vs Hughes cited, there's only an equitable assignment until that NOA is received or can be proven to have been sent. T

he Op has denied ever receiving such a notice prior to litigation meaning imo there's no room for manoeuvre that they were indirectly notified of any assignment and until or unless that NOA can be proven to have been sent there's no right of action for the claimant.

A claim issued where no right of action existed must fail, Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101 is the case law.

 

Just sorry that I can't find a copy of the ruling anywhere online. It must be one of the better hidden or "trade only" ones, certainly it is most unhelpful to certain institutions.

[pabrmu]

Message for Jasper 1965.

If one uses the argument that a NOA was not correctly received prior to proceedings, how would one respond to the DJ or DCA in court that you had been paying money to them so you must have known that they now owned the debt.

[nicolee2931]

Right guys an update, I haven't been around earlier as I didn't have any info but heres the story so far.

I wrote to the court manager on the 26th January 2011 stating the Judgment entered on the 13th January 2011 being unfair as my AQ was handed in on time,

with the letter I enclosed a completed N244 for a set aside, a draft order for directions, and 2 witness statements of persons whom were with me when the AQ was handed in, up until today I have heard nothing.

Today I get a letter from Link stating they have applied for a charging order,

I called the court and asked for an update to my complaint as the claimant has applied for a charging order, 

to my surprise the claim has been set aside at no cost to myself. 

now I've been informed by the court the case has been set for trial on the 4th May 2011 for 2.5 hours, I don't know whats expected of my until the paperwork arrives from the court by feel I may need a little help in getting a bundle and skeleton argument ready.

So for now I'm happy Link ain't getting their Charging Order

, any advice guys other than wait until what the court sends me.

[emandcole]

Good! Would spend the time ensuring all that you have is solid and that you are confident in delivering your arguments in a concise and clear manner. Keep tabs on the progress of this just to make sure you do not miss any paperwork the court sends out as you won't get a second bite of the cherry! Let us know what you get and sure between us we can put it all together.

[nicolee2931]

Thanks Emandcole,

as soon as I get something from the court I will post back, the court said the set aside was done on the 8th of Feb so should get something soon.

I would love to be a fly on the wall in Links office when they realise they ain't getting their charging order without a fight.

The main problem is there is some pretty powerful case law out there which I have been directed to and is relative to my case but how do you get hold of it? it would be worth getting so I can understand it and direct the court to my arguments.

i've had the paperwork from the court and it sets out whats required and when before the trial, I will scan it and post up here over the weekend,

i've had a letter from HMCS stating that Link wish to mediate before trial,

what is this and should I do it as I can't see what this will accomplish as they ain't going to back down and will most likely use it to intimidate me,

I'm not scared of Link quite the opposite I'm up for a lot of ruff and tumble with them just worried about the consequence of not entering mediation with them.

[emandcole]

Good you have all the paperwork and are up to date. Never heard of Link wishing to entertain mediation unless they suspect their arguments might not be too solid. Link quite simply is a parasitic money making machine so you have to look at anything they do with an air of skepticism, if they have indictaed they want to try mediation its not because they want a cuddle...it will be the sole result of an economic stance on the merits of your particular case.

 

I'm not up to date on your thread but the first question you have to ask yourself is what are you prepared to risk in order to defend this matter? If your standing is good you may well wish to ignore mediation as it places the onus back on them to succeed or fail in their claim, simple rock and a hard place scenario.

 

If you doubt your chances then you'd perhaps be silly to dismiss mediation as ultimately no-one wants to go to court, however by doing so you're already entertaining the notion in your own mind that you may have to lose something in order to achieve a resolution of some kind with the claimant.

 

To indicate you are willing to attend mediation isn't a weakness either, it also demonstrates to the court that you are open to intelligent discussion where you may well be able to bargain a mutual arrangement between yourselves saving court time. You are not necessarily expected to reach an agreement of course, if you simply can't agree to terms there will be no other option but to continue on the litigation trail and let the hearing rule either way.

 

Each case is different with its own individual characteristics and whether to try mediation really is a decision for you to make. You are able of course to ascertain your own legal standing with case law, this way you can argue for a possible resolution more in your favour that minimises the risk to the claimant as they also don't want to lose a claim. Risks for each party therefore, just make sure your hand is as strong as can be and ensure if you do try mediation that you aren't bulldozed into accepting anything that you don't need to, balanced with the strength of your own arguments it should be possible in theory to end up with an acceptable result based on the risks of litigation (for you both) if you were all to proceed.

 

Mull it over I'd say

[nicolee2931]

Just to update everyone, mediation didn't work out so its off to a hearing on the 4th May. I just have to get the remainder of paperwork to the claimant and into court by the 21st April in order to rely upon it.

 I have to get any documents I wish to rely upon in by then, I have 2 witness statements from witnesses who saw events regarding the car being taken from private property.

Do I have to give the court and the claimant a copy of my skeleton argument or is that something I keep for myself.

Also do I have to send in any case law I wish to rely upon into the court or should the judge and claimant be familiar with the case law I present or raise.

The other issue is where I can get case law from especially

Holwell Securities Ltd v Hughes

Compania Colombiana de Seguros v Pacific Steam Navigation Co

I got the basics of the Holwell case from Wikipedia overriding the usual postal rule but how do I link this into my argument.

I would be grateful guys for a lift on this one.

Just a quickie just in the process of getting ready to send the last few documents off tomorrow ready for court, however just finishing the Skeleton argument but unsure who to end it to.

I know it has to be sent to the court but does a copy have to be sent to the claimant.

I hope someone can just clear that point up.

[manchestman]

Hi

I usually use www.bailii.org to find any case law. I sometimes find their search engine a little difficult so you might want to google the case but look for bailii in results.

Your skeleton is not strictly necessary so you will impress the judge by being very prepared. You could simply hand a copy to the other side when they reach court and that will surfice.

I wish you a real lot of luck as you have been so hard done to.

Practise everything you wan tto say again and again and make sure any references are easy to find and to hand by using 'tab's or whatever works best for you.

[nicklea]

You may also want to have a read of this, it might help:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?178915-Defence-required-for-Claim-form-Barclaycard-CL-Finance-Howard-Cohen&p=3364743&viewfull=1#post3364743

[nicolee2931]

Thanks nicklea for that, to be fair I had stumbled across this thread recently and have taken some parts of the skeleton argument from it as this argument is very similar to mine in respect of the DN and assignment.

So as manchesman said I can hand the Claimant their copy of the Skeleton argument at the court.

[nicolee2931]

Just to update on this, Link have sent to me today (28th April) should have been sent 14 days before the hearing on the 4th May.

However in my witness statement I stated that I had not received a copy of the Notice of Assignment before proceedings were issued and quoted that in accordance with the LoP 1925 and several bits of case law namely;

Holwell Securities Ltd v Hughes

Compania Colombiana de Seguros v Pacific Steam Navigation Co

Link have countered this with Lombard North Central v Power-Hines [1995] CCLR 24 case

how would this effect or counter what I have put across

Also they have mentioned Chitty Contracts 29th edition, 19-019 & 19-005 with relation to the assignment , what does this mean any assistance would be great.

If required I count scan up their witness statement.

[nicklea]

Lombard Notrth Central relates to the CCA, there's a link here:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?203051-Anybody-got-a-copy-of-this-judgment-please&p=2212724&viewfull=1#post2212724

 

If they are trying to use that case with regard to assignment then that is of no use as the Lombard case refers to the CCA and service of default notices and not the law of Property Act and service of notice under that act.

 

I would suggest that you have a look at the cases refered to in the link I gave you above in post #115

 

With the Chitty references, it all depends what they actually say. That is a very expensive reference book that even most libraries don't have.

[nicolee2931]

I have read the link you posted with reference to Lombard North Central and I'm certain I have read somewhere its was a case in a County Court, if thats the case can it be quoted as case law?

Also with reference to the link which you pointed to a skeleton argument, I have used quite alot of what is there in my skeleton argument as my case is quite similar.

 what they have posted with regard to Lombard North Central has really no relation to LoP 1925 and the delivery of Default Notices and Notices of Assignments as the argument they are trying to put across is these documents were posted but either a useless postman lost them or a young child got hold of them.

Any ideas should I scan up their statement.

[nicklea]

First of all with the Lombard case, this was appealed and the link there was to the result of the appeal - so yes it is binding.

 

However, the important point to get over is that this case just refers to notices sent under the CCA.

 

So, just a small point, but you are wrong when you talk about default notices. It does apply to default notices because these are required to be sent to you by the CCA. So with a default notice, they just need to show that they sent it to you - not that you received it.

 

However, assignment of a debt is entirely different and this is the important point that you need to get over. Assignment of a debt is governed by the lopa NOT the cca. So it is necessary to look to the lopa to see what is required.

 

The lopa gives two methods in section 196 that, if they are used, then that is enough and the notice doesn't actually have to reach the recipient.

 

However, the cases I quoted in the link show that if the creditor doesn't use one of these methods and you never receive the notice then notice has not been given.

 

The Frogmore case concerned primarily the lopa but also the Landlord and Tenant Act 1927. In this case they refered to the Chiswell and Railtrack cases - among many others.

 

The Frogmore case revolved around whether or not notice was given even though the recipient hadn't received the notice. It was held that good notice had been achieved because they used the proper method. The quotes from Chiswell and Railtrack show that if they don't use the proper method and the notice isn't received then good notice has not been achieved.

 

It is important to note that both Chiswell and Railtrack are concerned with the Lanlord and Tenant Act 1927, however the requirements as to service of notices in both acts refer to sufficient notice being given by leaving it at the address or by using registered mail and so, I would submit, that cases refering to delivery of notices under the Landlord and tenant act are directly relevant to cases involving delivery of notices under the lopa.

[nicolee2931]

Okay been to court this morning and it was adjourned surrounding issues with my amended defence.

However while there the judge quite friendly in nature gave a few pointers pointing out that the arguments submitted were dangerous to both parties. And suggested caution.

The judge said as she had spent the last hour reading the case she was going to give a little dispute resolution.

the judge pointed out that although the assignment is regulated by the LOPA how I received the assignment is irrelevant.. Link could just say they posted it and it would be expected I received it.

I said how is that possible under s.196 of the LOPA, but didn,t really give a response other than quoting the CCA overrules it, which I found bizarre. However she pointed out another judge may not see things like she did and pointed out it may be Link at risk.

It seems unless you get a clued up judge you will loose and I looked that way today if judgement had gone through. Just of the opinion to negotiate without prejudice to limit my losses unless I can get rock solid case in court that the notice of assignment wasn't correctly served.

[nicklea]

As you've found it, a lot of it is how you present your case.

 

You can never assume that a judge is aware of a particular law or any particular authorities. It is up to you to make your case and take the judge to each of the authorities and spell out exactly what the significance of each is.

 

EDIT

 

If a judge says something that is incorrect then it is your job to correct him/her. If you don't do this then you will not succeed in your case.

[pumpytums]

The service of NOA is clearly laid down in LOPA, the CCA to my knowledge mentions nothing about service of NOA. If the judge had been talking about service of DN's then they would be correct, but this isn't about DN's. It looks like the judge misdirected themselves when they read one of the cases Link put forward smoke and mirrors.

 

Nicky I thought their were bigger issues than the NOA, like the vehicle been repossessed from private land without a court order?

 

Pumpytums

[nicolee2931]

Everything went down in the amended defence, the unlawful repo, the DN, and the dodgy assignment.

 

This judge was more of the argument..... you had the finance..... you had the car..... but didn't pay for it for whatever reason.... so now you owe the money....

 

tried to get across the repo, didn't go down well....

 

the judge was just concerned with the assignment and if it had been served, I agree it was a bit like smoke and mirrors as the stuff I have read its upto the the claimant to now prove its been served with the LOPA in mind.... but the judge and the claimants solicitor said the CCA now overules the LOPA which I find a bit weird

 

As from what I've read and led to believe is DN's and Termination Notices are covered by the CCA, but assignments fall under the LOPA. This judge and solicotor believed eveything is now covered under the CCA.

 

Confused... I certainly am....

 

It appears black and white in the Frogmore case what is and isn't acceptable service of an assignment.

[nicklea]

The opposing solicitor is going to say that because, I would suggest, he thinks that you don't know any better.

 

Although it shouldn't be, it's really up to you to prove your case where the judge is clearly listening to the other side - and it's not uncommon for this to happen.

 

What you need to do is to think about all the arguments the other side might put up and then have all the documentary evidence to refute what they are saying. Have a copy of all the relevant cases and print out the relevant parts of the CCA and the LOP.

 

There is nothing in the CCA that allows for the assignment of a debt so it simply is not possible for the CCA to 'supercede' the LOP

[nicolee2931]

I just seemed to get the impression I am only going to win this case on a technicality not a point of law based on links failures and their blatant ability to flout the order of the court.

 

I'm just not sure how you convince a judge that as a defendant it's upto the claimant to prove their case, it's written in black and white they have to prove good service.

 

Just seems a tall order as an LiP as you will always be looked down upon as knowing nothing or being described like today as an internet lawyer.

 

Sad but true.

[pumpytums]

Hi Nicky,

I know it's easy for us to pass comments we were not in the room with you. This is not criticism

 

If their is something you don't agree with or understand you should ask the judge/ other side for example :-

 

"Can you please direct me to the exact part of the CCA that is concerned with assignments?"

 

"Can you please show me the section that details how a notice of assignment should be served?"

 

Make sure you have a complete copy of the CCA. Let them show you, if they can't they are stuffed.

 

Again I'm not criticising far from it. It's all fine and dandy the judge saying the CCA overrules LOPA but if their is nothing in the CCA that deals with assignments they are completely wrong.

 

 

It must be very difficult when you have 2 people that are supposed to know these things inside out. The problem is one of them will try to steer the other in their direction.

 

This link may help a bit

 

http://www.google.info/forums/showthread.php?t=26333

 

Well done anyway

 

Pumpytums

[nicklea]

 

That is a really nice and simple way of doing it, without coming across as being, as nicky says she was referred to, an 'internet lawyer' - I wish I had thought of that

EDIT

Although, always make sure that you already know what the answers are before you ask the questions - like those above - but of course you obviously do know the correct answers to these questions