claim form for 9,000 for wifes credit card from 2004 - no NOA? *sorted under a TOmlin Order*

[Nomore Baloney]

I am being taken to court by a debt company.

 

One part of my armoury is that I have not recieved a notice of assignment by recorded delivery (or in fact at all)

 

The company are saying that they did send one to me, although I have not mentioned the recorded delivery.

The date they say they sent it was when I was when I was staying with friends in France,

which I can easily prove if necessary.

 

Can I ask that they provide me with the recorded delivery paperwork

(which they must have used by law as I understand it) under cpr31.14?

 

Am I correct in my understanding that if they have no recorded delivery paperwork regarding the assignment,

then they have no right to sue me?

[Bazooka Boo]

I have never heard of NOA's being sent by RD?

 

They are usually sent in the same envelope as the OC saying they have passed it to xyz for collection, and then a letter from xyz saying they have been asked to collect on behalf of.

 

DCA's don't use recorded delivery.

 

What's the alleged debt? Loan overdraft credit card?

 

How old?

[Nomore Baloney]

Its for a credit card.

 

I read somewhere a notice of assignment has to sent recorded delivery as per 1925 property act for it to be valid.

 

I'm thinking if that is so, then the DCA have no authority to chase and therefore I can get the CCC struck out.

[citizenB]

Yes, they are supposed to be sent by Recorded delivery. However, if you have received it and admitted as such, even if it was sent by carrier pigeon it wouldnt matter.. you have admitted receiving it.

 

The problem occurs when a debtor has NOT received one and the Claimant will then be put to proof that they did send one and if they didnt send it by recorded delivery .. well then they are stuffed arent they ?

[Nomore Baloney]

Oh dear, that's a pity for them then isn't it...

 

So i guess I should ask for disclosure of docs under CPR from them.

If they are unable to provide the recorded delivery info do I either defend the case or just write to the DCA saying go away?

 

And how do I inform the court about their failure to supply?

 

Whats to stop them sending a Notice of Assignment at this stage by recorded delivery?

 

just found this:

http://www.consumeractiongroup.co.uk/forum/showthread.php?242324-Notice-of-Assignment-the-law-of-Property-Act-Arrow-Global

 

Incidentally, anyone any idea of what a Notice of Assignment should contain?

 

I absolutely 100% positive they have not sent a NOA via recorded delivery.

If I ask for one under CPR, they HAVE to fulfill my request

 

If they do produce one, meaning I am wrong on the recorded del issue, then I go to plan B.

If they cannot, then it would appear they have no rights to sue.

 

Wonder whom I ask to provide, guess its the solicitors.

 

How would I go about doing that?

 

I'm about to send the solicitors a CPR16 request as they mention I had been given a NOA on their claim form.

 

Would my best course of action to proceed with that letter,

and then if they can't supply one then ask the court to strike it out?

 

Whats to stop them making one up and backdating it?

[Tingy]

I would not rely on novation! Proof a NOA has been sent is a requirement, but beware they might have this proof so play carefully.

[Tingy]

Why don't you go for an "Unless Order" which would state unless they prove the serving of a valid NOA you want the case struck out. You'd need to do this through the court.

 

OK, I'd continue with CPR request - haven't checked regs so assume you're asking under the right bit. As regards backdating the NOA, anyone sending one needs evidence. An NOA can be delivered verbally in law, but obviously there is then a problem with evidence if challenged. Any sensible person would therefore get proof of postage or send recorded delivery. You should perhaps also ask for proof that it was not only written, but posted to you.

 

If they don't / can't produce this then they have no argument.

[Alloyz1]

Selling a Debt and Notice of Assignment:

 

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—

 

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.

 

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).

 

 

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.

 

 

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)

[Tingy]

Crystal clear then. As long as they say it was in writing -ie- sent in a letter, it says it has to be sent Recorded Delivery. That can't really be misinterpreted. Therefore they must have proof which would appear to put you on a strong wicket. Good news!

 

Thanks Alloyz for posting that.

[Alloyz1]

No worries

 

Points are:

 

NOA must be served recorded- if they say they did, put them to strict proof i.e. recorded delivery signed evidence.

Also put to strict proof an Assignment has taken place i.e. you want to see the Assignment that was made under 136 not just the 136 NOA sent to you (which you never recieved).

 

If they can not produce a NOA it should be struck out as a simple point of law (should being the operative word!!)

 

If they produce evidence it was sent recorded, put to strict proof an actual Assignment document exists as this should be in writing.

[citizenB]

If a claim has been issued already and teh Assignment has been mentioned in the PoCs then you can request it under CPR31.14.

 

Alternatively you could ask for information regarding the assignment by way of a part 18 request.

 

I am not certain CPR31.16 is the correct way to go.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

[Nomore Baloney]

Is it 31.14 or 31.15?

 

Thanks for your help BTW!

[Nomore Baloney]

I am trying to negotiate a F&F settlement with a firm of solicitors for a F&F.

 

What is the ballpark % I should be looking at.

 

Its going to court (had the papers), the debt is about 9,000 for a credit card.

 

How much personal info do I have to divulge?

 

Whats the best approach with them?

[rebel11]

Hi Norm

 

Have you been mis-sold PPI? Have you got any default charges on the account? Have you sent them a CCA? In any Full and Final Settlement these matters should be taken into consideration. Have a read of 1 - 8 in my signature.

[Nomore Baloney]

I've done all the usual stuff of course, the agreement looks ok, although I have a couple of things to argue in court if a push comes to shove, but don't want to alert solicitors to that at the mo in case they remedy there shortcomings.

 

Oh, and by the way, linky for number 8 doesn't work I'm afraid.

Edited July 22, 2011 by Nomore Baloney

[rebel11]

Works fine for me :- http://www.consumeractiongroup.co.uk/forum/entry.php?202-Full-and-final-settlements-A-guide-for-the-rest-of-us

 

Did they provide a 'True' copy or was it 'Reconstructed'?

 

I've done all the usual stuff of course, the agreement looks ok, although I have a couple of things to argue in court if a push comes to shove, but don't want to alert solicitors to that at the mo in case they remedy there shortcomings.

 

Oh, and by the way, linky for number 8 doesn't work I'm afraid.

[Old Cogger]

10%

[unclebulgaria67]

Depends on your circumstances. If you own your home with equity in it, could they try to force you into having a charge applied to it.

 

More info required to judge what chances you have of a reduced F&F.

[Nomore Baloney]

What info do you need?

[unclebulgaria67]

Are you a home owner with any equity in it ?

What are you current financial circumstances in terms of being able to meet the debt in full? ( Just thinking that if this ever went to court, you would have to reveal details)

Is this the only debt that you have that has defaulted and showing on your credit record?

What was the date of the last repayment of the debt ?

When was the original CCA taken out?

[Nomore Baloney]

We have loads of several cards we have had trouble with. Its my wifes card. I was quite poorly a while ago and being s/e business went down the pan. Wife had to change her job, so went from 40k to 20 k job.

 

Interest only mortgage now, little equity I should think. Can they take any money I have into account? I have a tiny pension, about 230 pm.

[unclebulgaria67]

I am not sure an F&F would be the best approach here. There are occasions where CAG has its limits and this is one of them. Without having knowledge of all the debts, the details of these and full details of your financial circumstances including what are joint or sole debts/assets between your wife and yourself, It would be difficult to advise you correctly.

 

I would advise you to consult a qualified debt councellor. See if you can see book to see an advisor at CAB or contact CCCS.

 

You can explain your circumstances to the solicitor acting for the DCA and try an F&F to get rid of one debt, but they may refuse this and want to negotiate a repayment plan instead, asking for income and expenditure details. If they are not supplied with the details, they could then go for a CCJ. This is why I think you would be better to get proper advice about all the debts, so you can deal with all of them at the same time.

[Nomore Baloney]

Well there is only this one debt thats causing a problem at the mo. All the rest are pretty much under control and getting token payments.

 

And Rebel, I can't get your link to work. All i get is this:

invalid Blog specified. If you followed a valid link, please notify the administrator

[ashmk]

Oh, and by the way, linky for number 8 doesn't work I'm afraid.

 

Don't work for me either. Invalid blog.

[IdaInFife]

work in progress on the link just now x