Capquest claimform - old Citi card debt

[gramtrad2]

Hi Folks,

 

I am trying to do a bit of research on this topic since it is featuring in a couple of cases that I have on the go. I am not a solicitor or in any way legally qualified, just someone fighting his own corner!

 

I am aware that if a debt is sold on by a lender to a Debt Collection Agency, that there must be a properly executed Notice of Assignment and that the new owner of the debt must have proof of holding the same.

 

I am also aware that the Notice of Assignment must comply with the Property Act of 1925.

 

However, can someone please explain to me :

 

a) What constitutes a correctly executed Notice of Assignment?

 

b) Is the new owner of the debt obliged to demonstrate the existence of the NOA by providing a copy of the document effecting the assignment

 

Comments appreciated please.

 

Thanks

[loobyloo85]

Hi

 

I know that you should receive a letter of assignment from the original creditor, and the new creditor

[lilly white]

Assigning a Debt or Benefit of Contract?

 

It is important to first provide the debtor with a notice of the assignment!

 

Other points and issues that should be borne in mind:

 

· In principle, the benefit of a contract can be legally assigned without consent,

provided there is no express prohibition on assignment or, for example, a requirement that consent

is obtained.

 

· Where there is no restriction on assignment, the usual way of assigning the benefit of

contractual rights is by statutory assignment.(they owned the debt)

 

The assignment must be in writing, signed by the

assignor, absolute (not purporting to be by way of charge only) and notice in writing must be

given to the other contracting party (section 136, Law of Property Act 1925).

 

· If a contract is not effectively assigned under statute, it may still be assigned under

common law by an equitable assignment.(acting on behalf)

 

 

 

an equitable assignment may exist where the requirements

for a statutory assignment are not satisfied. The main practical consequence of an equitable

assignment is that the assignee cannot bring an action in its own name against the third party, (acting on behalf)

 

 

 

but must fall back on the rules governing equitable assignments and join the assignor as a party

to the action.

 

It is, in any event, desirable for notice of an assignment to be given to the third party because

the third party will otherwise be entitled to continue to make payments to the assignor. Notice

 

 

 

"What is a sufficient notice of assignment? There are only two or three cases on the subject. There is Stanley v English Fibres Industries, Ltd which was accepted and applied by this court in W F Harrison & Co Ltd v Burke. Those cases show that, if a notice of assignment purports to identify the assignment by giving the date of the assignment--and that date is a wrong date--then the notice is bad. The short ground of those decisions was that the notice with a wrong date was a notice of a non-existing document. Assuming those cases to be correct, they leave open the question whether it is necessary to give the date of the assignment."

 

Red bit is the important bit... if the date of assignment is bad... then the notice is defective. But if a document does not have a date of assignment then the notice cannot be seen to be "bad" so long as it identifies the assignee correctly...

" It seems to me to be unnecessary that it should give the date of the assignment so long as it makes it plain that there has in fact been an assignment so that the debtor knows to whom he has to pay the debt in the future. After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge. But the notice itself is good, even though it gives no date."

 

If the assignee is incorrect then the notice is bad even without a date...

 

s136 Legal assignments of things in action.

- [/b](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-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

he may, 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.

 

So there will have to be a deed the deed is what we wish to see,,,,,,,,,,,,,,,,,

 

 

The Assignment of the Debt

 

 

1. If the Claimant was not xxxxxxxxxx Bank 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.

 

 

2. 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—

 

3. 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.

 

5. 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).

 

 

6 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.

 

 

7 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)

 

 

 

 

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

 

 

[gramtrad2]

Thanks,

 

This is very useful information.

 

One of the matters that I have on the go at the moment is a battle with Capquest. Part of that battle centres specifically around assignment of the debt.

 

To illustrate my point, I have uploaded a copy of my original letter to Capquest and their reply (appended to which is a letter which was sent to me regarding the sale/ assignment of a debt from Citicard to Capquest).

 

Please refer to the second page of Capquest's letter; you will see that they insist that I have no right to a copy of the Assignment of the debt!

 

I think that I need to go back to them in stronger terms in order to draw them out on this aspect.

 

My Letter to Capquest.pdf corresp from Capquest.pdf

[lilly white]

refer them back to the act

 

 

s136 Legal assignments of things in action.

- [/b](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,

That is what you want to see.............

 

Read it again and undestand the act the assignor is the oc..........

 

also refer to common law/case law

 

.. 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)

...

[humbleman]

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)

...

 

Can you clarify what you mean by the above and do you have a link to the case law in question

 

Thanks

[rhodium78]

They are right in their letter that s 136 of the LoP Act 1925 does state that if the assignor is disputing the debt being assigned or there are competing claims as to the debt being assigned to other assignees, then the debtor may call upon the disputing parties to court and pay the debt into court.

 

But, you are disputing the fact that the assignee capquest has the power to discharge you of the debt and hence you have to word your reply something along the lines of:

 

I require sight of the assignment so as to be satisified that it is valid and that you, the alleged assignee, can give me good discharge of the debt as per s 136(1)c of the LoP Act 1925 if it is proved that I am indeed indebted to CitiCards plc and in turn, as the alleged assignee, indebted to you.

 

This is not an uncommon situation and has already been addressed by the the Court of Appeal in VAN LYNN DEVELOPMENTS LTD. v. PELIAS CONSTRUCTION CO. LTD. (formerly JASON CONSTRUCTION CO. LTD.) [1968].

 

I have attached a pdf of the above judgement.

Van Lynn Developments v Pelias Construction Co Ltd [1968].PDF

[lilly white]

Ok what the question is, is there an assignment as per the act, if not tell them to go and p................... in the wind

 

I think that is very clear....................

[rhodium78]

What happens if they tell you they have it and you are not entitled to see it as has happened with the OP? You have to have a legal justification to see the assignment document and the justification is above. There is a remedy for the debtor not being sure about the assignment and that is to pay the amount into court but we are trying to avoid court and pick out flaws before it ever gets there.

 

The case law mentioned does not state that the debtor has the right to see the assignment document at all times... it states that the debtor can see the assignment if there is doubt about the assignee able to give discharge on the debt and the only thing required by statute is a notice of assignment.

 

Hence any retort to their letter must have this element in there to make it relevant to the OP seeing the assignment document.

[gramtrad2]

@rhodium78

Thanks. Spot on.

 

@lilly white

Yup. It would give me the greatest of pleasure to do that.

 

I have now written to Capquest and re-asserted the need for a copy of the assignment. Let us see what comes back.

 

I mentioned in my original post that I had a couple of cases on the go.

 

 

[Mydogsawestie]

Gramtrad - your welcome to have a look at the layout I initially started to use. Some of it may or may not be of use but hope some of the extracts I had at the time from the help of the caggers you may find useful to start you off with too :idea:

http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-d-judge-made-wrong-21.html#post2771707

 

Mine went in within the 21 day period so not sure how you go about it outside of that period, PT can guide you on that but I hope you dont leave it too much longer good luck MDAW

[gramtrad2]

Hi Folks,

 

Many thanks, Colin21958 and Mydogsawestie for comments and support.

 

The similar threads made very interesting reading and I am now beginning to see just how much I am up against The System!

 

I have re-done my appeal and uploaded the same.

 

I would like to get this in very soon, so any comments, suggestions would be much appreciated.

 

Thanks.

MBNA - Appeal to Circuit Judge.doc

[gramtrad2]

Hi Folks,

 

Many thanks, Colin21958 and Mydogsawestie for comments and support.

 

The similar threads made very interesting reading and I am now beginning to see just how much I am up against The System!

 

I have re-done my appeal and uploaded the same.

 

I would like to get this in very soon, so any comments, suggestions would be much appreciated.

 

Thanks.

Gentle Bump.

 

I need to get this in soon. Can anyone comment or suggest improvements please? I want to get it spot on this time.

 

Many thanks.

[tedney]

Gentle Bump.

 

I need to get this in soon. Can anyone comment or suggest improvements please? I want to get it spot on this time.

 

Many thanks.

I am no expert, but I think you will need to set the appeal out like mydogsawestie's example, and concentrate on the reasons for the appeal, rather than what the claimant got wrong. Hopefully this will bump up your post again until someone with more expertise comes along, you could always click the red triangle on the left.

t

[Mydogsawestie]

As your out of the timescale of 21 days now with your appeal, have you rang the courts to find out what other option may be available on how best to go about it now?

 

Mine all went in within the timescales so I hope somebody will come along soon to advise you as your really dont want to be leaving it too long PART 52 - APPEALS - Ministry of Justice may prove useful in the meantime.

[gramtrad2]

I am no expert, but I think you will need to set the appeal out like mydogsawestie's example, and concentrate on the reasons for the appeal, rather than what the claimant got wrong. Hopefully this will bump up your post again until someone with more expertise comes along, you could always click the red triangle on the left.

t

 

Thanks for your comments; much appreciated.

 

The Appellant's Notice that I have to complete asks me to state what I thought the judge had got wrong; hence my focus from that point of view.

[gramtrad2]

As your out of the timescale of 21 days now with your appeal, have you rang the courts to find out what other option may be available on how best to go about it now?

 

Mine all went in within the timescales so I hope somebody will come along soon to advise you as your really dont want to be leaving it too long PART 52 - APPEALS - Ministry of Justice may prove useful in the meantime.

 

Thanks.

 

I have spoken to the Court and faxed in my Appellant's Notice - asking for another 21 days, which will take me up to the 17th June. Fingers Crossed!

 

And thanks for the link.

[gramtrad2]

Bump.

 

Grateful if someone could assist me with my appeal, please.

 

I have posted up my draft appeal and need to get this finalised within the next couple of days.

 

Many thanks.

[colin21958]

Bump.

 

Grateful if someone could assist me with my appeal, please.

 

I have posted up my draft appeal and need to get this finalised within the next couple of days.

 

Many thanks.

 

I think you should send a pm to one of the site team who are logged on (you can find out who is logged on at the bottom of the forum home page; site team members links appear in orange) send them a link to your thread asking for help; mention that it is urgent, and I am sure they will send some members who have experience in lodging appeals; sorry I can't help, I'm still in the earlier stages of litigation!

 

Colin

[Mydogsawestie]

Hi gramtrad2 my example was a 4 page doc as posted to my link above #101 yours seems so brief so hoped somebody would have been along to help you with it. If the court have allowed you a further 21 days hope you got what you did put together in within this extended time.

 

I too was going around in circles not knowing what to do at the start, in areas where we are unsure having caggers onboard is vital I know! By researching & spending many an hour to gather what you can yourself though when others cannot be around may sometimes be all you can do.

 

Best of luck & hope you finalised what you had in on time. Maybe the next thing to be requested now from the court will be them asking for a copy of the transcript before decision to appeal will be granted?

[gramtrad2]

Hi gramtrad2 my example was a 4 page doc as posted to my link above #101 yours seems so brief so hoped somebody would have been along to help you with it. If the court have allowed you a further 21 days hope you got what you did put together in within this extended time.

 

I too was going around in circles not knowing what to do at the start, in areas where we are unsure having caggers onboard is vital I know! By researching & spending many an hour to gather what you can yourself though when others cannot be around may sometimes be all you can do.

 

Best of luck & hope you finalised what you had in on time. Maybe the next thing to be requested now from the court will be them asking for a copy of the transcript before decision to appeal will be granted?

 

Thanks for your advice and support.

 

I spoke to the court manager and faxed through the paperwork that they needed for the extended time. She called me regarding this just a few days ago and asked for me to drop the paperwork in as "hard copy" (she had previously advised me that faxing would be ok!). So, I said - look the extra time that I had requested was now nearly up, so perhaps best if I put my full appeal in anyway. So, I agreed to do that by Monday.

 

I was hoping that some one on this forum would be able to assist, and have PMd the guy from the site team, pt2537, who had previously indicated that he would look through it, but no response. I guess he may be on leave at this time of the year.

 

I will look to escalate the matter by PM ing other prominent Caggers over the weekend, if nothing comes back soon.

[colin21958]

Thanks for your advice and support.

 

I spoke to the court manager and faxed through the paperwork that they needed for the extended time. She called me regarding this just a few days ago and asked for me to drop the paperwork in as "hard copy" (she had previously advised me that faxing would be ok!). So, I said - look the extra time that I had requested was now nearly up, so perhaps best if I put my full appeal in anyway. So, I agreed to do that by Monday.

 

I was hoping that some one on this forum would be able to assist, and have PMd the guy from the site team, pt2537, who had previously indicated that he would look through it, but no response. I guess he may be on leave at this time of the year.

 

I will look to escalate the matter by PM ing other prominent Caggers over the weekend, if nothing comes back soon.

 

The best thing to do is to find a site member who is online and pm them. provide a link to your thread, explain what help you need and explain that it is urgent. They will send someone to help.

 

pt2537 is unlikely to be able to help as he is very busy...

[gramtrad2]

The best thing to do is to find a site member who is online and pm them. provide a link to your thread, explain what help you need and explain that it is urgent. They will send someone to help.

 

pt2537 is unlikely to be able to help as he is very busy...

 

Thanks, again, for your support.

 

I have tried PM ing a few of the senior bods, but no replies! In desperation I have now sent a message via a contact form. Let us see if that gets me anywhere.

 

I cannot get away with leaving this any longer and will just have to go with my own submission if no help comes by tomorrow.

[colin21958]

Thanks, again, for your support.

 

I have tried PM ing a few of the senior bods, but no replies! In desperation I have now sent a message via a contact form. Let us see if that gets me anywhere.

 

I cannot get away with leaving this any longer and will just have to go with my own submission if no help comes by tomorrow.

 

Send a pm to citizenb; she was extremely helpful to me and prompt... you could also hit the red triangle and fill in the form there (or is that the form you already completed?)

[steven4064]

Colin

 

Can you put a succinct summary of where you are in the process and what your case is. I may then be able to help. I haven't got time to read the thread