Cabot/morgan Claimform fast track - old Cap1 Card Debt

[asokn]

I have only just read that last post but my understanding of section 136 is that the *assignment* must be under the hand of the assignor (i.e. the assignor must clearly agree to giving it's rights away) but the *notice* need not be (see Bateman v Hunt).

[simongee]

ConsumerEdge

 

Thank you for your comments and DM. I have tried to reply to you directly but the error message received when I pressed the send button stated your mailbox was full.

 

Kind regards

 

Simon

[consumeredge]

IMO the acid test is that when a person is subject to a Debt Management Programme the Creditor sends "Notice of Assignment" to the Debtor and the Assignee sends a letter of purchase to the debtor to inform them to inform their DMC where to send payments to, if there was no requirement the Original Creditor wouldn't bother, but would a DMC accept the word of the alleged Assignee on its own? its important I believe to remember this law was written and passed by Parliment 87 years ago, back then the Assignment would have been written in all probability by a quill, my understanding of "under the hand" 87 years ago meant handwritten, today we live in an electronic world but the principle remains, a letter from the Original Creditor to the Debtor informing them the debt has been sold, stating how much is owed and on what date.

[consumeredge]

Hi Simon, just now emptied the inbox

[asokn]

IMO the acid test is that when a person is subject to a Debt Management Programme the Creditor sends "Notice of Assignment" to the Debtor

 

Out of interest, as the law of assignment does interest me, do you have any authority for that point beyond section 136?

[simongee]

ConsumerEdge

 

Just a short note to let you know I have posted a letter to Morgan Solicitor's for next day recorded delivery with the contents of your earlier reply. I have given them 7 days in which to respond confirming that I will be filing my 2nd witness statement upon receipt.

 

Kind regards

 

Simon

[Guest]

... as the law of assignment does interest me, ....

 

if not seen already some brief info guidance re assignment, following CCD's. p71 of pdf here http://www.consumeractiongroup.co.uk/forum/showthread.php?306183-Consumer-Credit-Directive

Edited April 3, 2012 by Ford

[asokn]

Thanks Ford.

 

Edit: I note that your linked PDF makes clear that notice of assignment need not come from the original creditor. Interesting.

[victoria_siempre]

Spot on Ford

 

And for the hard of hearing:

 

43 Regulation 36 of the EU Directive Regulations.

16. ASSIGNMENT OF RIGHTS

here any rights of a creditor under a consumer credit agreement (for example the right to be repaid the money) are sold or transferred to a third party, notice of that assignment must be given to the borrower as soon as reasonably possible, except in the circumstances described below. This requirement applies to all regulated consumer credit agreements other than agreements secured on land. This requirement is in new section 82A of the CCA43.

 

t is the responsibility of the assignee (the creditor acquiring the rights) to ensure that notice is given. However, he does not have to give notice himself, but can agree with the assignor (the creditor assigning the rights) that the assignor will give notice instead, depending on what is more sensible in the circumstances. It is important, however, that notice is given as soon as reasonably possible and in a way that is clearly understandable by the borrower.

 

otice does not have to be given where arrangements for servicing the credit are unchanged as far as the borrower is concerned. For example, if Creditor A sells his rights under a credit agreement to Creditor B but Creditor A still collects the borrower’s repayments in the same way and is the only point of contact for the borrower on matters regarding the agreement, notice does not have to be given.

 

here notice has not been given, and arrangements for servicing the credit do subsequently change, the borrower must be informed of the assignment on or before the date that change happens. Again, this must be readily comprehensible to the borrower.

 

The definition of “creditor” in section 189 of the CCA applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

71

 

 

x

 

v

[simongee]

Hi ConsumerEdge

 

I hope all is well with you.

 

As discussed, I sent a letter to Morgan Solicitor's quoting the case you commented on.

 

I received a reply and have scanned and attached same for your comments. Along with their reply, they sent me the Claimant's Listing Questionnaire and the Estimate of Costs.

 

I would appreciate your thoughts as to what I should do next.

 

With thanks.

 

Kind regards

 

simongee

Morgan Solicitors 11 Apr 2012.doc

[simongee]

Hi ConsumerEdge

 

Sorry to follow up so soon. Just wondered whether you have had an opportunity to review the documents Morgan's Solicitors have sent me.

 

Kind regards

 

Simongee

[simongee]

ConsumerEdge

 

Thanks for your DM. I tried to reply but your mailbox was full.

 

I look forward to hearing from you in due course.

 

Kind regards

 

simongee

[consumeredge]

This is my opinion/understanding having viewed the latest Morgan correspondence, as is often the case, you learn more from what’s not said, as opposed to what is said……

 

In May 1969 a contract was entered into between Peliaus Construction Co Limited and Jason Construction Co limited to build a house at Kingston Hall for the sum of £15,000.

 

In order to be able to purchase materials and employ labour Mr Apponi (Jason Construction Co limited) required an overdraft facility from the National Provincial Bank.

 

Whether the National Provincial Bank was Mr Apponi’s normal business current account bank, or a current business account opened upon the recommendation of Mr Vandervall is unclear.

 

Upon the personal request of Mr Colin Vandervall (Van Lynn Developments Limited), Jason Construction Co Limited were able to overdraw quite considerable, with the understanding pledged by Mr Vandervall that progress payments made (I would assume) from Pelias Construction Co Limited to the Jason Construction Co Limited bank account held with the National Provincial Bank so as to reduce overdraft borrowings.

 

In any event, Mr Vandervall used his influence and effectively became the guarantor.

 

At some point a dispute arose between Mr Apponi (Jason Construction Co Limited) and Mr Vandervall, resulting in that Mr Apponi indicated to Mr Vandervall no more progress payments would be made to the National Provincial Bank.

 

Mr Vandervall took it upon himself as a responsible person to visit the National Provincial Bank.

 

The National Provincial Bank saw both Mr Vandervall and Mr Apponi, again, I would assume separately, as when Mr Apponi went to the bank, the Bank Manager told Mr Apponi he ought to continue making the progress payments to the National Provincial Bank as the overdraft was accruing (by this I would think incurring interest on the amount overdrawn).

 

Mr Apponi refused.

 

The National Provincial Bank Manager said he would have to call the overdraft in.

 

No dates are offered when these meetings took place between the National Provincial Bank, Mr Vandervall or Mr Apponi, nor do we know the atmosphere of the conversation.

 

Interesting though, the 15th June 1969 was a Saturday?

 

However:

 

Through a letter dated 15th June 1969 National Provincial Bank wrote to Mr Apponi withdrawing the overdraft agreement and required the payment of £5,385. 18s 2d, I would assume the letter required immediate settlement, or at most 5 working days because a second letter dated the 21st June 1969 the National Provincial Bank again wrote to Mr Apponi stating that unless they received payment they intended to seek legal remedy.

 

No exact details are given as to when Mr Vandervall went to the National Provincial Bank to pay the outstanding balance.

 

I would debate that at this point though whilst a dispute arose between Mr Vandervall and Mr Apponi, the National Provincial Bank agreed to the overdraft facility initially based from the projected profit of the sale of the completed house and the bank’s gain would be from a profit through the interest generated from the overdraft, In my view Mr Vandervall’s own personal guarantee to pay any outstanding amount with interest merely served as a win win for the bank.

 

Importantly though after a face to face meeting with Mr Apponi, whereby Mr Apponi refused to recommence payments to the bank, the National Provincial Bank served notice upon Mr Apponi the overdraft agreement had been terminated and the National Provincial Bank required immediate payment, failure to do so, then legal action would be taken.

 

In my opinion, to preserve his good standing with the bank, Mr Vandervall paid the full outstanding balance owing including interest accrued on the account, £5,385. 18s 2d, on the condition he was assigned the outstanding total amount.

 

Whatever confusion surrounding the date of Assignment, the Deed of Assignment (Bill of Sale) is crystal clear, the assignee Van Lynn Developments paid the full amount outstanding for the title and all rights, not a percentage.

 

The Deed of Assignment is also clear detailing the National Provincial Bank and Mr Vandervall aka Van Lynn Developments, so much so the plaintiff (Mr Vandervall aka Van Lynn Developments) had no qualms exhibiting the full unedited document to Mr Apponi and the court.

 

Essentially when Morgan’s quote Van Lynn Developments then I believe the case should be directly compared against it.

 

Did the Debtor inform the Original Creditor of a problem with making his contracted payments?

 

Did the Original Creditor then have any contact with the Debtor when the dispute first arose?

 

Did the Original Creditor then serve notice upon the Debtor that the account had been terminated?

 

Did the original Creditor then serve notice upon the Debtor that legal action would be commenced?

 

Whilst the court ruled Mr Apponi was entitled to view the original Deed of Assignment.

 

Did the Assignee exhibit to the Debtor and the court the full unedited Deed of Assignment?

 

If so did the Assignee pay the Original Creditor the full amount outstanding on the account?

　

　

[wfspayback]

Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 ALL ER 824 where the Court of Appeal with Lord Denning MR as President had to consider whether there was a valid notice of the assignment of a debt. In that case the defendants had a bank overdraft which was paid off by the plaintiffs in consideration for an assignment of the debt to themselves. The assignment was dated 26 June and on 27 June the plaintiffs called on the defendants for payment. In the letter of 27 June it was stated (incorrectly) that notice of the assignment had been previously given to the defendants. On the question whether the letter of 27 June constituted a valid notice of assignment, it was held that on the true construction of s 136 of the Law of Property Act, 1925 notice of assignment of a chose in action was good even though it contained no date and the incorrect statement could be ignored as an inaccurate surplusage; and (per Widgery LJ) it was immaterial that the letter was not written with the intention that it should perform the function of giving notice under s 136 (1).

 

In giving his decision Lord Denning MR expressed his opinion that the correct interpretation of the statute was given by Atkin J. in Denney, Gasquet, and Metcalfe v Conklin [1913] 3 KB 177 at p 180 that no formal requirements were required for a notice of assignment and observed that:

 

“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 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 valid.”

 

In concurring with Lord Denning MR. Widgery LJ. stated :

 

“The section does not speak of “a notice:” it speaks of “notice”. Accordingly, it is wrong to suppose that a separate document purposely prepared as a notice, and described as such, is necessary in order to satisfy the statute. The statute only requires that information relative to the assignment shall be conveyed to the debtor, and that it shall be conveyed in writing”. (Emphasis added.)

[wfspayback]

I have only just read that last post but my understanding of section 136 is that the *assignment* must be under the hand of the assignor (i.e. the assignor must clearly agree to giving it's rights away) but the *notice* need not be (see Bateman v Hunt).

 

Indeed Asokn, furthermore in Van Lynn the letter that was held to constitute a valid notice under s.136 of the LOP was not sent by the O.C (assignor), it was in fact sent by the representatives of the plaintiff.

 

“Dear Sirs,

 

*

 

We have been instructed by our above named Clients [the plaintiffs] to apply to you for the payment of a sum of* £5296 19.5. outstanding to them following the assignment of the debt to them by National Provincial Bank. Notice of this Assignment has already been given to you.

 

*

 

Unless we receive payment for the full amount of this debt at this office by the first post on Monday 1st July, we have instructions that proceedings will be taken against you without further notice.”*

Edited April 24, 2012 by wfspayback

[consumeredge]

Cabot Financial’s POC……..Notice of Assignment having been given to the Defendant in writing.

 

Having been issued the summons Simongee wrote to Morgans last September asking to see sight of the Deed of Assignment, which is referred to within the plaintiffs Particulars of Claim, Simons defence further asks the court under their own motion the Claimant be ordered to file and serve true copies of the Deed of Assignment

 

Morgans knew exactly what Simongee meant but have steadfastly refused to show sight of the said document offering only a redacted template copy

 

Now then, from the findings of Vann Lynn Developments and subsequent appeals that Morgans have sent Simongee and upon which they intend to rely

 

"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 due to the original creditor"

 

"After receiving the notice the debtor will be entitled, of course, to require sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him good discharge."

 

Simon has never been afforded the opportunity by Morgans to view the original Deed of Assignment, to which he is entitled to to be satisfied with reasonable certainty that the assignment was and is valid.

[wfspayback]

Cabot Financial’s POC……..Notice of Assignment having been given to the Defendant in writing.

 

Having been issued the summons Simongee wrote to Morgans last September asking to see sight of the Deed of Assignment, which is referred to within the plaintiffs Particulars of Claim, Simons defence further asks the court under their own motion the Claimant be ordered to file and serve true copies of the Deed of Assignment

 

Morgans knew exactly what Simongee meant but have steadfastly refused to show sight of the said document offering only a redacted template copy

 

Now then, from the findings of Vann Lynn Developments and subsequent appeals that Morgans have sent Simongee and upon which they intend to rely

 

"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 due to the original creditor"

 

"After receiving the notice the debtor will be entitled, of course, to require sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him good discharge."

 

Simon has never been afforded the opportunity by Morgans to view the original Deed of Assignment, to which he is entitled to to be satisfied with reasonable certainty that the assignment was and is valid.

 

There appears to be a great deal of confusion within this thread in terms of the deed of assignment and the notice of assignment.

 

These are two different documents. The Deed of Assignment is escentially the terms and conditions of a bulk sale of debts and must "be under the hand of the assignor"

 

Whereas, the notice of assignment is a document provided to the borrower indicating that a sale of the debt has taken place, which does not have to be "under the hand of the assignor"

 

The POC's and subsequent posts make continued reference to the notice of assignment. Contrary to a number of posts and as held in Van Lynn, notice does not have to be provided by the O.C. It can be provided by the assignee or a 3rd party on behalf of the assignee.

 

 

 

Rather than a request for a copy of the notice, has any actual request been made for sight of the actual deed of assignment ?

Edited April 24, 2012 by wfspayback

[wfspayback]

If not, one can and should be made with reference to Van Lynn

[wfspayback]

If not, one can and should be made with reference to Van Lynn

 

My apologies, Simon. I have now read your entire thread. Whilst the POC's make no reference to the Deed of Assignment and the advice you initially received concentrated on the notice of assignment, I note that you did subsequently following further advice, make a request for the deed of assignment.

 

However, it would appear by a post you wrote in February that you have recieved it.

 

"Exhibit 6: Copy of Agreement for Receivables Sales between Capital One and Cabot Financial dated 16/03/2011 (much of this is blanked out)."

 

Whilst most of it is blanked out, could you please take a look at this document again, or if possible even post this document on CAG so it can be determined if this is indeed the infamous deed of assignment.

 

If you read some of the older Cabot threads in the DCA forum, you will come across some that involve the deed of assignment. In some of those cases (from memory MBNA), the documents were drawn up under Irish law. Could you please verify if this is the case with the above document.

 

Cabot have been known in the past to bring screen prints of CAG to show to the judge. Therefore don't be surprised if your post in February is presented before the Court, to confirm you have received certain documents.

Edited April 25, 2012 by wfspayback

[simongee]

I will scan and upload the documents submitted by Morgan's that they blanked out in the next few days. I appreciate your interest.

[simongee]

Hi ConsumerEdge

 

Apologises for the radio silence over the past 2 months however there has been absolutely nothing to report.

 

My case is now 2 1/2 weeks away and I could really use your advice on how to prepare for court.

 

2 days ago, Morgan Solicitor's posted me a large file with copies of all correspondence and supporting evidence from both sides. There is nothing new in there apart from their breakdown in legal costs.

 

They did attach a without prejudice letter offering a deal of £8,000 in full and final settlement to be paid in instalments. I have not replied to this letter.

 

Interestingly, I did receive a letter entitled 'Notification of instruction to collect' from a debt collector called FIRE in Rugby. They quote Cabot as their client, quoted the capital one reference number and the same outstanding balance. Are Cabot allowed to instruct a debt collector to chase a debt that is currently being disputed in court and about to go to trial?

 

Your thoughts and comments would be hugely appreciated as always.

 

Best wishes

 

Simongee

[citizenB]

Your document is a bit teeny.. can you please follow the instructions below and post it up as a pdf..

 

 

Dx100 – Instructions on uploading pdfs

scan the required letters/agreements/sheets

as a picture file

remove all pers info inc barcodes etc using paint

but leave all figures and dates.

goto one of the many free online pdf converter websites

convert the image to pdf format.

or ir you have PDF as an installed printer drive use that

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

the hit reply button

[simongee]

Apologises for the last document upload. I have saved it as a pdf so hopefully it will be more visible.

fire 7 june 2012.pdf

[molly13]

Hi Simon,

 

I have been following your thread and was interested to note the following

 

"2 days ago, Morgan Solicitor's posted me a large file"

 

I was under the imprssion that Morgan Sols no longer exist and that their files have been taken over by a company called Wright Hassall. Have you tried to phone Morgan? I did.. see my thread

 

Re: Morgans/Cabot proceeding to court with reconstituted agreement on citi cc debt

round about pg 14.

 

If it is still Morgan dealing could you let me know please.

 

btw.. is that FIRE address not the same as Morgan address?

 

I'm sure someone will be along in regards to your question about FIRE... in the meantime I'll follow this with interest and wish you lots of luck.

 

Regards

 

Molly:-)

[molly13]

another link http://www.consumeractiongroup.co.uk...40#post3876440

 

In the debt forums.

 

Andy