Who does the 'Notice of Assignment' have to come from???

[COOKIE24]

Hi

 

Can anyone tell me who the 'Notice of Assignment' must come from for it to be legal?

 

Is it the original company who you had the credit agreement with or can it come from the DCA that has brought the debt?

[maroondevo52]

Hi,

 

I think in order for a NOA to be valid it has to come from the original creditor not a DCA.

 

Regards.

 

Scott.

[COOKIE24]

Just want I wanted to hear, thanks Scott

[maroondevo52]

Hi,

 

To be honest it's not my strong point, (if I have one)

 

Have a look at this thread...........

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/238021-notices-assignment-hfo-services.html

 

Regards.

 

Scott.

[DonkeyB]

It's a tricky one.

 

The NoA can come from practically anybody, as long as it is clear as to the act of assignment itself. "Under the hand of the assignor" doesn't necessarily mean that it has to be written by the assignor.

 

I think a judge would regard such a fault as de minimis anyway; the LoP is from 1925 and some of it reads as rather archaic.

 

For example, the more recent CCA states specifically that a Default Notice must identify the name and address of the creditor, as well as the debtor. No doubt there (whoops, Mercers!).

 

Many debt buyers undertake, in the agreement or deed of sale, to send out an NoA on behalf of the assignor, and they also send out one of their own - a 'hello' letter. Some, such as Lewis/CL Finance, simply get their solicitor Howard Cohen to send it out (usually at the same time as a claim form!). I have never seen this method of notifying assignment become a significant issue in in a court case.

 

There's a few threads on the forum about this subject - get Googling! - and hopefully I've summarised accurately what I believe to be the important conclusion in those debates.

[DonkeyB]

PS

 

maroondevo, your strong points are legion and famous!

 

I would add that the problems often start not with the actual issuing of NoAs, but with the abuse of the process itself, as identified in the thread above so kindly posted my MD. Companies like HFO often sit on debts for months and years then claim an NoA was sent by, eg, Barclaycard, when it clearly was not.

[Docman]

In effecting statutory assignment to a Claimant,

explicit Notice of Assignment must be given to the debtor by writing under the hand of the assignor as required by S136(1) of the Law of Property Act 1925, [the LPA 1925].

 

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 the Defendant by a registered postal service pursuant to s 196(4) LPA 1925 before court action is commenced.

 

Failure of a Notice of Assignment to be accurate,

such as the date of assignment was stated WRONGLY,

means that the legal right to the debt cannot be assigned effectually at law within the meaning of s 136(1) LPA, 1925.

[W F Harrison & Co Ltd V Burke and Another [1956] 2 All ER 169].

 

The LPA does not specify what must be in the Notice,

a point made by the junior judge in the Van Lynn case.

 

However, the leading comment in the Van Lynn case was given by Lord Denning, the Master of the Rolls who said

 

 

“I think the correct interpretation of this statute was given by Atkin J in Denney, Gasquet, and Metcalfe v Conklin [1913] 3 KB at p 180).

It is quite plain from his judgment that no formal requirements are required for a notice of assignment.

 

It is sufficient if it brings:

"to the notice of the debtor with reasonable certainty the fact that the deed does assign the debt due from the debtor so as to bind the debt in his hands and prevent him from paying the debt to the original creditor."

 

Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824.

 

IMO the words “with reasonable certainty” are key.

 

If a claimant isn’t certain because the claim is brought in the name of one company but the assignment is in the name of another company, or the wrong address/company logo are used,

how can a defendant be expected to be certain?

[diddydicky]

to the notice of the debtor with reasonable certainty the fact that the deed does assign the debt due from the debtor so as to bind the debt in his hands and prevent him from paying the debt to the original creditor

although it must be in the hand of the assignor- it can neverthless be served by the assignee on the assignors behalf

further- if you have acknowleged receipt of the assignement but are merely seeking to defend or defeat it on the grounds that it was not properly served /or by registered post- you are 99.9% certain to fail in your efforts- since the object of the excercise would have been acheived (the assignment was succesfully brought to your notice)

if the assignment has not been sent "signed for" or recorded/registered- you would be better advised to ignore its existence at all than to acknowledge it and then raise arguments as to how it was served

IMO

[rgkrgk]

I'm finding this all a bit confusing. My situation is this:

 

I am the leaseholder of a flat and have to pay service charges to a landlord (the freeholder). We were informed a while back that the freehold had been sold and the managing agent for the freeholder told us that they would be responsible for recovering service charges up to the date of the assignment of the freehold to the new landlord.

 

I took legal advice on this and was informed that this was incorrect and that the new landlord was responsible for collecting arrears. Since the sale I've been writing to the new landlord saying I dispute the charges and they've been coming back to me saying, you need to take this up with the managing agent.

 

I've taken legal advice a few more times on this since, because I thought this was all very odd, and each time I've been told that I have to dispute matters with the new freeholder.

 

There has never been any mention of assignment of debt and I don't think the new landlord has even told me that I now owe the old landlord's managing agent, just that if I have a problem with the service charges then I need to take it up with the old managing agent.

 

I've checked myself now and am of he opinion that all rights and obligations in regard to the freehold transfer from the old landlord to the new landlord on sale of the freehold. So for the old landlord's managing agent to come after me for payment (which they have via a demand and now a claim in the County Court), then somehow the debt must have been assigned to them.

 

Do people think that I should be reasonably certain that the debt has been assigned to the Managing Agent? (See Lord Dennings comment in the post from Docman above). I must admit I don't feel certain. Neither the new landlord or the old managing agent fill me with confidence that they know what they are doing and I have never received anything by recorded or special delivery from either of them.

[diddydicky]

out of my experience i am afraid

 

although i do know that if 2/3 of the leaseholders agree- they can take over the management of the flats themselves

 

and that the leaseholders can now force the landlord to sell the freehold to them ( price to be independently arbitrated)

[broken arrow]

Link to similar question I asked...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/163133-notice-assignment-question.html

[rgkrgk]

out of my experience i am afraid

 

although i do know that if 2/3 of the leaseholders agree- they can take over the management of the flats themselves

 

and that the leaseholders can now force the landlord to sell the freehold to them ( price to be independently arbitrated)

 

Thanks, I'm pretty well up on leaseholder legislation and the tribunal procedures associated with certain aspects of leaseholder/freeholder disputes. It's County Court procedures that I'm struggling with.

 

Link to similar question I asked...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/163133-notice-assignment-question.html

 

Thanks, I've had a good look around and this thread seems to go more into depth than the others I've seen but still leaves me unsure.

 

It's clear that:

 

i) there must be a written assignment of the debt

ii) there should be a written notice of assignment and this doesn't have to be from anyone in particular

iii) the notice of assignment does not have to be in any particular format

iv) the notice should be sent recorded delivery, special delivery or better, however if you've acknowledged delivery the failure to send by a correct method is no defence by itself.

 

My problem though is that I don't know about

i) above and the other points would allow anybody to claim that they are collecting the debt which doesn't seem right to me. You should surely expect something from the alleged assignor of the debt to give it some credibility.

 

It would seem to me that Lord Denning's words "reasonably certain" in his follwing comment are highly relevant "to the notice of the debtor with reasonable certainty the fact that the deed does assign the debt due from the debtor so as to bind the debt in his hands and prevent him from paying the debt to the original creditor."

 

Knowing the people involved I would not be surprised if there is no written assignment of debt, but how do I find that out? It isn't mentioned on the claim form.

 

Does anybody know how I can get hold of the cases referred to in the earlier posts?

 

1) Atkin J in Denney, Gasquet, and Metcalfe v Conklin [1913] 3 KB at p 180

2) Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824

[loring]

I get confused when I get letters from more than one DCA each claiming the debt has been assigned to them.

 

When I write and ask for a copy of the NOA

they write back with words such as " we assure you the debt has been assigned to us " or "trust us we confirm your the debt was transferred to us on...".

 

I don't the words "assure" or "trust" should be accepted from the majority of DCAs we see mentioned in the threads of this forum.

 

When you request DCAs to send a copy of the deed of assignment you get told you are not entitled to that information.

 

I do not believe debtors really have assurance if and how their debts have been assigned to DCA's ie what type of assignment may have taken place and when did the assignment occur.

 

These DCAs often refuse to disclose the infornation a debtor needs to have in his possession in order to make decisions on how to handle his debt issues.

It appears the debtor often has to wait until he is in court before he receives the information, sometimes a bit late then.

loring

[diddydicky]

i think it is important to distinguish between the "assignment" itself- which must be under the assignors hand............ and the notice of assignment- which is simply (but importantly) a notice to the debtor that the debt has been assigned

 

the NOA can come from either the assignor- or the assignee on his behalf

[Bigdebtor]

Again applying my PhD in Common Sense (which means I don't understand THE LAW at all) surely "reasonable certainty" can only be satisfied if the Original Creditor sends the NOA

- otherwise ANYONE can issue a NOA (genuine or false).

 

How's the debtor expected to distinguish between them if they come from anyone other than the OC

- and especially if (like Aktiv Kapital's recent ones referring to Egg debts) they contain zero info regarding the debt (agreement no, balance outstanding etc.) ?

 

I would agree with DD's earlier post

- ignore any NOA that does not provide the reasonable certainty element of its "genuineness" or of its being properly served according to the Law of Property Act of 1925.

 

BD

[rgkrgk]

I would agree with DD's earlier post - ignore any NOA that does not provide the reasonable certainty element of its "genuineness" or of its being properly served according to the Law of Property Act of 1925.

 

It's too late in my case. I've already responded to other points raised in the letter where the Claimant tells me he's responsible for collecting the arrears.

 

I have little doubt that if pushed both the original debtor and the Claimant would agree that the Claimant is responsible for collecting the debt, however I suspect that there might not be a written assignment of debt. The parties are connected but both have a history of not doing things properly.

[diddydicky]

i think that the law would presume that if one were to receive a NOA from anyone other than the OC-- and given that it arrived recorded/signed for - that it would not be unreasonable to expect the recipient- if he/she had any doubts- to contact the OC to establish the truth of the matter

 

a LIp who puts together a legal case for the invalidity of the NOA would, i suspect have a hard time convincing a judge that, piror to going to great lengths to prepare such a defence- he did not possess the savvy to "check it out" with the OC first

 

that's why i said in other threads- if it arrives by normal post- file it and ignore it

[rgkrgk]

i think that the law would presume that if one were to receive a NOA from anyone other than the OC-- and given that it arrived recorded/signed for - that it would not be unreasonable to expect the recipient- if he/she had any doubts- to contact the OC to establish the truth of the matter

 

a LIp who puts together a legal case for the invalidity of the NOA would, i suspect have a hard time convincing a judge that, piror to going to great lengths to prepare such a defence- he did not possess the savvy to "check it out" with the OC first

 

that's why i said in other threads- if it arrives by normal post- file it and ignore it

 

OK, thanks, point taken.

 

I suppose I need to make sure I get hold of the written assignment of debt then.

[diddydicky]

OK, thanks, point taken.

 

I suppose I need to make sure I get hold of the written assignment of debt then.

 

and that proves in a lot of cases to be difficult and the other side often reluctant so it has to be pressed

 

also it will often consist of part of a block of several hundred or thousand similar debts and they will all be scrubbed out

 

one should not be put off in demanding proof that their particular debt was part of that "block" and if the other side protest that it would be unreasonable to blank out all but yours- then your argument should be that whilst it may seem unreasonable- so would allowing them "carte blanche" to claim a debt was included in an assignment with absolutely no proof whatsoever that yours was one of them- and if this argument was to be accepted to the court- would be open to obvious abuse

 

in fact, if accepted- it would negate the need for an assignment at all- if the assignee did not have to prove the fact

[rgkrgk]

and that proves in a lot of cases to be difficult and the other side often reluctant so it has to be pressed

 

Thanks, how would you recommend I do that?

 

This isn't a debt collection agency or a large financial institution so I don't think the scrubbing out issue you refer to applies.

 

You can see more details of my case here.

 

 

So far I have asked for various invoices etc.

from the Claimant under CPR 18 and

also "Documented proof that you have the right to collect service charges and to sue in regard to service charge arrears for the period 1.10.05 to 30.09.09".

 

Am I on the right track?

[diddydicky]

the assigee will have bought a parcel of debts and for data protection purposes WILL have to blank out those not connected with you

 

you start with the CPR31.14 if the assignment is mentioned or referred to in the POC otherwise CPR18

 

if they dont comply then it is a matter of applications to the court to force them to compy

[Bigdebtor]

one should not be put off in demanding proof that their particular debt was part of that "block" and if the other side protest that it would be unreasonable to blank out all but yours- then your argument should be that whilst it may seem unreasonable- so would allowing them "carte blanche" to claim a debt was included in an assignment with absolutely no proof whatsoever that yours was one of them- and if this argument was to be accepted to the court- would be open to obvious abuse

 

in fact, if accepted- it would negate the need for an assignment at all- if the assignee did not have to prove the fact

 

As always, wise words from DD.

 

Do I sense a rare occasion where The Law and common sense are actually in synchrony? Surely not!

 

BD

[C2K]

Here's my situation and I dont know what's the best way to start the argument:

 

- MBNA sent me a DN and it's a only DN on 04/01/2010.

- Arrow Global however, confirmed they had purchased a debt from MBNA on 23/12/2009 and sent me a copy of NOA (in response to my request) with an effective date on 23/12/2009 that I have never received.

 

I am now being persued by Arrow Global for the debt, should I defence the case on the grounds of "unlawful repudiation" or non-compliance NOA under section196(4) of LPA 1925.

 

DD, any thoughts?

 

Many thanks.

[diddydicky]

well if arrow global owned the debt before 4 January 2010 (make sure you check when the assignment became complete) then the MBNA DN is of no legal effect

 

if arrow global have not issued a DN- then just sit back and let them drop themselves right in the doo doo

 

as soon as they demand payment in full and/or terminate - send them the acceptance of unlawful repudiation letter.

[C2K]

well if arrow global owned the debt before 4 January 2010 (make sure you check when the assignment became complete) then the MBNA DN is of no legal effect

 

if arrow global have not issued a DN- then just sit back and let them drop themselves right in the doo doo

 

as soon as they demand payment in full and/or terminate - send them the acceptance of unlawful repudiation letter.

 

You are my man DD!

 

1. I have sent MBNA an acceptance of unlawful repudiation already as transferring the debt to A.G. with no warning (DN) was clearly an act of unlawful termination.

2. A.G. did confirm in writing that they purchased the debt on 23/12/2009.

3. I have written to A.G. asking for the proof of posting and delivery for the NOA that they stated they had sent me pending response.

4. A.G. demanded the full balance on 09/06/2010 via Fredrickson International Ltd.

5. No. def. no DN from A.G.

 

So I should now send an acceptance of unlawful rescission letter to A.G.?

 

The only concern for me is that A.G. can always get a WS that a DN was sent should litigation ever takes place one day and the DJ would normally buy!!

 

In your opinion, would I be standing better chance if I press on with MBNA for unlawful repudiation in this circumstances.

 

Many thanks.

Edited July 28, 2010 by C2K