First National/GE Money debt sold - now Link Claimform received.

[pabrmu]

Hi everyone.

I had been using a CMC to help in a claim against First National/GE Money/Link.

Frankly, this CMC have been useless.

The claim is for about £6,000 and even though the CMC put in a defence, it has been torn to pieces by Link, probably quite rightly!

Link have now offered me a Tomlin order to save going to court, but they have also asked for a Voluntary Restriction Order.

Their witness statement ( which runs to 150 pages), seems to be correct on most points, i.e. cca, default notice etc, but I have noticed 3 things that my CMC seem to have ignored:

1. Their NOA was not sent by registered/recorded post.In fact, their ws says "sent by first class post".

2. Looking through their statement of account, their are about 5 "charges" totalling £215.

3. And perhaps the most important, they have added the ppi of £540 to the total credit charge without their being separate t/c's and agreement. The fact that both me and OH were self-employed at the time should be noted.Does this make the agreement a "multiple-agreement per S.18 of the Act?

My main question is now: How do I go about bringing up these new points as they have already rubbished my (cmc) defence?

They have been notified that I am now defending myself and we did have a case management conference in September, which they cancelled whilst I considered the Tomlin Order.

I have sent a letter to them, headed without prejudice, agreeing to pay the monthly amount, but not agreeing to the voluntary order. I have also asked that they reduce the debt by the ppi amount. I did not mention the £215 charges or my Section 18 query as I have only just noticed these points.

They have yet to reply to my letter, but I do not think that they will agree.

Any ideas on how to proceed?

[pabrmu]

Anyone able to help, especially pt?

[pabrmu]

Hi all,

Something that I have just noticed.

Link have sent what they say is a NOA twice, 18 months apart. The first one dated 1/8/07 is what they say they sent by "first class post"

I think that they must have sent the other one in response to my CMC.

At no time have I received one from the OC.

http://i343.photobucket.com/albums/o473/pabrmu/link2.jpg

 

http://i343.photobucket.com/albums/o473/pabrmu/Link1.jpg

As is their way, they have also added £130 Litigation Charge and £190 Summons Fee to the statement.

Any help appreciated.

Edited November 3, 2010 by pabrmu

[DonkeyB]

That NoA says they have only been assigned the benefit of the debt, not the rights. So in effect, I believe they cannot take you to court unless joined by the original creditor (actually, I think they can take you to court but will get no money).

 

Need an assignment specialist on this. For example, if they only have the benefit, I do not believe they can charge interest. And technically I think the OC remains a creditor. `Bit out of my depth here, I’m afraid, but I’m sure there’s some substance in what I’m saying.

 

You also need to demand sight of the actual assignment under CPR 30.3 (I think). It may be flawed and blow their whole case out of the water.

[DonkeyB]

Who issued the claim?

[DonkeyB]

The two differently dated NoAs could also present a problem for them. This really needs to go back to square one, but I fear it’s a bit late for that.

[pabrmu]

Hi Donkey,

Thanks for the input.

The claim is from Link alone.

They have put a redacted "Form of Assignment and Assignation" in their Witness Statement. here are a couple of pages:

http://i343.photobucket.com/albums/o473/pabrmu/link3.jpg

http://i343.photobucket.com/albums/o473/pabrmu/link4.jpg

http://i343.photobucket.com/albums/o473/pabrmu/link5.jpg

I think I read somewhere that there had to be 2 signatures from both sides. There is only one from the OC.

Donkey, you say that we may be a bit far down the road to CPR them now.

Anyone got any ideas of how I can proceed?

[DonkeyB]

As a deed it’s deficient, yes. Two sigs from each side needed, afaik.

 

I don’t understand why Link are taking the action if the debt is owned by Asset Link Capital No 1 Ltd. Is it just Link Financial as the claimant?

[DonkeyB]

You can still use CPR... can you add more history, and tell us exactly what stage you’re at? What are your deadlines? I’m guessing you’ve done AQs and have a hearing date, as you have their evidence. Do you have the stuff that was entered on your behalf?

[pabrmu]

Hi Donkey,

Link Financial and Asset Link are surely one and the same.

I was being represented by a claims management company and they entered a defence, but it was very poorly presented and full of errors in law.It really isn't worth putting that defence on here.Suffice to say that they thought that the agreement and DN were deficient, but I don't think that they are. They have mentioned the mis-selling of the PPI, but I feel that it would have been more beneficial to have gone along the Multiple Agreement per Section 18 route.

I believe that the case was heard, but I am unsure how it went.That's how bad the CMC were!

All I know is that I have had a General Form of Judgment or Order which states: "Upon hearing the solicitors (agent) for the claimant and upon the defendants not attending and upon the claimant informing the court that they propose to issue an application for the defence to be struck out. It is ordered that:

1.The case management conference be adjourned to September 2010 to be considered together with any application the claimant may issue to strike out the defence and counterclaim.

2. Cost in the case.

 

Link /Asset Link postponed the hearing as they have suggested a Tomlin Order as per my post 1

I am pretty sure that I would be able to handle myself in court as I was used to attending court in a previous life!!, but I am somewhat unsure what the procedures are now as the case has not really followed normal procedures.

Link have made a glaring error in their witness statement which I do not wish to discuss on a public forum (yet), especially bearing in mind the prying eyes of our guest.

[DonkeyB]

Hi Donkey,

Link Financial and Asset Link are surely one and the same.

 

No, they are not. They are separate limited companies. I can’t see what locus standii Link Financial Ltd has in an account assigned to Asset Link Capital No 1 Ltd

 

I was being represented by a claims management company and they entered a defence, but it was very poorly presented and full of errors in law.It really isn't worth putting that defence on here.Suffice to say that they thought that the agreement and DN were deficient, but I don't think that they are. They have mentioned the mis-selling of the PPI, but I feel that it would have been more beneficial to have gone along the Multiple Agreement per Section 18 route.

 

I believe that the case was heard, but I am unsure how it went.That's how bad the CMC were!

 

All I know is that I have had a General Form of Judgment or Order which states: "Upon hearing the solicitors (agent) for the claimant and upon the defendants not attending and upon the claimant informing the court that they propose to issue an application for the defence to be struck out. It is ordered that:

 

1.The case management conference be adjourned to September 2010 to be considered together with any application the claimant may issue to strike out the defence and counterclaim.

2. Cost in the case.

 

Link /Asset Link postponed the hearing as they have suggested a Tomlin Order as per my post 1

 

I am pretty sure that I would be able to handle myself in court as I was used to attending court in a previous life!!, but I am somewhat unsure what the procedures are now as the case has not really followed normal procedures.

 

Link have made a glaring error in their witness statement which I do not wish to discuss on a public forum (yet), especially bearing in mind the prying eyes of our guest.

 

I see problems with getting any more evidence into court. Do you know if they applied for a strike out of your evidence, and this order relates to that strike out hearing? If so, you need to oppose the strike out. This is too tricky for me, procedurally – need a heavyweight on board.

[pabrmu]

Hi Donkey,

It would seem that the adjournment was to the Case Management Conference, but at the same time, they court will consider the claimants application to strike out the defence and counterclaim.

Does anybody know how I would go about putting in a better defence than the CMC did or is that too late?

If it is too late, will I be able to pull to pieces their WS at the conference?

Help would be appreciated.

[DonkeyB]

What goes on at the case management conference (another bl**dy CMC acronym!) cannot be used in court, as far as I know. As you don’t know if the judge ordered a CMC without setting a trial date, I would call the court and ask for copies of all documents and decisions in the case so far (unless you can get them from the, er, CMC (Claims Management Company?)).

 

Otherwise you’re flying blind. They appear to have responded to your defence, so I don’t see why you can’t ping-pong back, but you need to get to the bottom of what’s actually happening.

 

You also missed the chance to ask for documents at the AQ stage. This is going to be tough, I think.

 

Your defence and their response are important, even if your defence was poor – we need to know what was said to advance this.

[pabrmu]

Hi Donkey,

Thanks for all your help in this.

I have heard from Link today and as expected, they did not agree to my offer of £30 per month (even though I couldn't really afford this) and they wouldn't deduct the PPI and they still demanded the Voluntary Restriction as part of the Tomlin Order.

I must say, I only agreed to negotiate with them per advice from the claims management company before I realised the faults in their claim.

I will post up the previous defence later.

Thanks again.

[pabrmu]

Hi all,

As promised, this was the defence posted by my useless claims management company:

http://i343.photobucket.com/albums/o473/pabrmu/link55.jpg

http://i343.photobucket.com/albums/o473/pabrmu/link6.jpg

http://i343.photobucket.com/albums/o473/pabrmu/link7.jpg

http://i343.photobucket.com/albums/o473/pabrmu/link8.jpg

http://i343.photobucket.com/albums/o473/pabrmu/link9.jpg

http://i343.photobucket.com/albums/o473/pabrmu/link10.jpg

http://i343.photobucket.com/albums/o473/pabrmu/link11.jpg

http://i343.photobucket.com/albums/o473/pabrmu/link12.jpg

As previously said, I actually think that the agreement,DN and interest rate is OK and Link have pulled this to pieces.

However, the so-called NOA only ever came from Link Financial Ltd, not Asset Link Capital (No 1) Ltd, ( although they are mentioned as the asignee on Links headed paper) and they have stated that it was sent first class post when it should have been Registered post. Also, they have included the single premium PPI on the original agreement without it's own agreement and t/c's.

[DonkeyB]

If the claim form is in the name of Link Financial Ltd, then I can’t see how they have any locus standii in this matter. If they don’t own the debt, they cannot litigate on their own.

[pabrmu]

Hi Donkey,

Only the headed notepaper on their apparent NOA states "Link Financial"

However, even on that letter they state that the owner of the debt is Asset Link Capital (No 1) Limited.

This is who has brought the claim.

[emandcole]

Hi thanks for the PM. Donkey is right, things do seem quite vague. From a procedural point of view it would be helpful to have someone on board who is hugely familiar with the best way of making the court system work for you but there also appears to be serious flaws in Links claim that you should look to pull apart. Do we know where this is and what's going in in full? Could do with knowing what's what, in particular the dates. PM me if you need to as I'm guessing it's all a bit tight?

[pabrmu]

Hi ALL

If Link send a Notice of Assignment in August 2007 and start their recoveries procedures, then for no apparent reason, send another NOA in June 2009, is this not somewhat unusual?

Could it not be construed that they were trying to collect on a debt 22 months before they owned it, especially if one did not receive the original NOA?

Views would be welcome.

[pabrmu]

I am being taken to court. The creditor has admitted that they only sent the NOA by 1st class post instead of the registered/recorded delivery as required by the Law of Property Act.

They say in their witness statement that I have disclosed that I am in receipt of the NOA, although I have never said that I have received it.

When questioned on their assertion, they say that as they sent a copy to me as part of my CPR request, this constitutes acceptance of receipt.

Is this correct ?

[dadofholly]

They "may" be correct, but will look into it.

 

The thing is they should have proven to you that they own the debt, prior to issueing a court claim. How can they say you have not paid them anything when they have failed untill now to prove they owned the debt?

 

was the NOA from the original creditor - or the DCA?

Who is original creditor?

Who is DCA?

[pabrmu]

Hi dadofholly,

Thanks for looking in.

The original creditor was First National, who became GE Money

The DCA is Link Financial and this is who the NOA was sent by.

[nicklea]

the assignment is only effective from the date that you received notice. So since they commenced proceedings before they gave you notice then they had not given you notice and so were not able to bring a claim in their own name. There is a court ruling that supports this

 

Warner Brothers Records Inc v Rollgreen Ltd (1976) 1 QB 430

[pabrmu]

Hi Nicklea,

Thanks, will have a read of the judgement.

[nicolee2931]

Holwell Securities v. Hughes

Warner Brothers Records Inc v Rollgreen Ltd (1976) 1 QB 430

 

 

Anyone know where you can download the judgement?

 

And how do these apply to a NoA's?