Aktiv Kapital & their hounds

[AndyOrch]

Ok its just that they will try to say its not applicable, as the agreement was pre 2006CCA amendments

and that they are not retrospective.Utter nonsense of course as they must comply with the amendments

irrespective, a defaulted account is defaulted irrespective if it is pre 2008 or not.

 

Simply request as part of your draft directions the documents you require and list the Notice of Arrears and

annual statements of arrears since such default.Along with anything else your require.

 

Regards

 

Andy

[Nomore Baloney]

What about asking for copies of all correspondence and strict proof that a NOA exists

[AndyOrch]

Ask for the NoA but with regards to correspondence that would normally be requested at standard disclosure IE N265.

[Nomore Baloney]

Whens std disclosure then? Reading the info on the gov website it seems to suggest that early attempts to prevent a hearing are the aim.

[AndyOrch]

Standard disclosure is after you submit your AQ and receive a Notice of Allocation.Within this notice will be your draft directions and the DJ directions

to proceed the matter.Exchange of Witness Statements exchange of N265.time frame dates etc

 

Mediation is always preferable but you didn't instigate the claim and are therefore just following procedure.If you are late with your AQ the DJ will strike out your

defence and award judgment to the Claimant. Follow procedure but be open to settlement should the Claimant approach.

 

Andy

[Nomore Baloney]

Ok, thanks for you help once again Andy.

[Ilike banks]

Their solicitors have informed me that the NOA was sent to me by second class post. As this method of delivery is clearly contravenes the 1925 property act, should I tell them that that is the case and ask them to jog on? They also tell me that they have enclosed a pro forma copy of the assignment with their correspondance. There is no pro forma copy with their correspondance. It would appear therefore that they do not have a copy of the actual assignment.

[Bigdebtor]

I would quote Law of Property Act 1925 which required NOA be sent registered post. Tell them you have no record or recollection of having received any NOA and ask them to provide a copy of the signed receipt - which would have been signed by whoever recieved it on your behalf, given it was not received or signed for by you.

 

However all that will (probably) happen is they'll send you a new copy and a creditor-friendly judge will say 2well you've got your NOA now - so what's the problem?".

 

Good luck!

 

BD

[Bigdebtor]

I would quote Law of Property Act 1925 which required NOA be sent registered post. Tell them you have no record or recollection of having received any NOA and ask them to provide a copy of the signed receipt - which would have been signed by whoever recieved it on your behalf, given it was not received or signed for by you.

 

However all that will (probably) happen is they'll send you a new copy and a creditor-friendly judge will say "well you've got your NOA now - so what's the problem?"

 

I also recollect that as well as sending you the NOA by registered or recorded post they have to show a Court the actual DEED OF ASSIGNMENT to enforce the debt. It might be worth asking for a copy of the deed as well - but not surte if you're actually entitled to see this before any court case.

 

Have you done the £10 SAR - to see exactly what it shows - it might unearth things to your benefit?

 

Good luck!

 

 

 

Not sure why this didn't just appear as an edit of the above post - but also don't know how to fix it now. Anyway, hope it's worth saying twice?

 

BD

[Ilike banks]

I havn't done a SAR, and to be honest maybe a bit late for that. DOH!

[Bigdebtor]

I don't see why you shouldn't just do it now - but perhaps others can advise if it's too late - or counter productive at this stage?

 

BD

[Ilike banks]

I've only got a few days left to send in my defence.

[AndyOrch]

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. 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. 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, 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 will give the assignee priority over any other assignee that has failed to give notice, provided there is no knowledge of such prior assignment.

The burden of a contract cannot be assigned. It is therefore necessary to novate, rather than assign, certain contracts. Novation is, in effect, the rescission of one contract and the substitution of a new contract in which the same acts are to be performed but by different parties.

 

Regards

 

Andy

[Nomore Baloney]

Er, thanks for that Andy. I will go away and read that several times!

[Nomore Baloney]

So, in essence, what you are saying Andy that:

 

!/. They have to comply with the 125 property Act

2/. If not they have to issue a new contract which I have to agree to.

 

Or is that too simple?

[AndyOrch]

In theory yes, in practice, well thats another story getting a DJ to understand the Credit Consumer law is one thing ,getting them to understand

the LoP is another:wink:

 

Andy

[Nomore Baloney]

But it seems quite clear to me., so surely.... no take your point.

[TweedleDee]

The registered post only comes into effect under LoPA 1925 s 196(4) but let's look at s 196(3) where a document was deemed to be served during the course of normal post, see Kinch and another v Bullard and others (1998).

[Nomore Baloney]

The information in the Kinch v Bullard case refers to 'a notice that can be shown to have been served...'

 

That does not remove the 'recorded delivery' criteria though surely? They would have still had to send it recorded delivery AND get a signature for it.

[Bigdebtor]

The information in the Kinch v Bullard case refers to 'a notice that can be shown to have been served...'

 

That does not remove the 'recorded delivery' criteria though surely? They would have still had to send it recorded delivery AND get a signature for it.

 

Nomore

 

I agree - but I recollect from other threads that the lack of an NOA was not fatal to the creditor - as the judge just said "well - you've admitted you've got it now, even if it wasn't sent registered or recorded".

 

BD

[Nomore Baloney]

But I have never had one at all.

[Bigdebtor]

I know - but I recollect they got away with just producing the NOA in court and giving it to the defendant - and the judge was fine with this.

 

I am a bit less far down the line with AK - have just reminded them Egg cashed the £10 cheque but didn't comply with the SAR request - my next delay tactic will be - prove you sent me the NOA - which I got but it was just a single page proforma from AK - nothing from Egg themselves - and no details of my account on it.

 

After that I'll use CPUTR 2008 regarding the executed CCA agreement - so they have a few hurdles to jump first before anything ges near a court.

 

Incidentally after the SAR reminder AK came straight back with a 65% discount F&F - which I think shows they are on weak ground - and which I ignored and asked them to get Egg to comply with the SAR.

 

Good luck in your own fight! Please keep us posted on any outcome, good or bad.

 

BD

[TweedleDee]

The information in the Kinch v Bullard case refers to 'a notice that can be shown to have been served...'

 

That does not remove the 'recorded delivery' criteria though surely? They would have still had to send it recorded delivery AND get a signature for it.

 

That is the problem. Our interpretation of this and the bench's interpretation of this are two separate animals.

 

There are different ways of being "served". The registered letter is one way of being served (196(4)) and having the letter left at an address is another way of being served (196(3)). The courts deemed that normal post constitutes the letter being left at an address if it has not been returned.

 

I have to emphasise that this does not detract from your other arguments however no NoA/incorrect NoA does not make the claim fatal as Bigdebtor says.

 

I leave you in the hands of the regulars now.

[Ilike banks]

But the absence of a properly executed and valid NOA must surely mean that the DCA has no right to collect as they do not 'own' the debt..

[TweedleDee]

Not to re-hash the hundreds of posts on equitable assignment v absolute assignment but they do own the debt. It is just that they haven't notified you of it thus making it an equitable assignment.

 

They have a number of options in front of them:

 

1.) Re-issue a NoA; or

2.) Discontinue; or

3.) Bring in the assignor either as a defendant or as a claimant in this action depending on their stance; or

4.) State to the court via a witness statement or affidavit that the NoA was dispatched and the copy they have is a true copy of it.

 

What we are all trying to say is that it is only one facet of your argument and should be used in conjunction with others. So I would focus on the fact that you haven't received it and thus it is at best an equitable assignment.

 

So get your case ready with the help of the regulars and focus on a multi-pronged approach, not just one.