Welcome secured loans/charge - sold to Alpha/Prime -repo received - ***Claim Dismissed***

[cruzhughes]

Just been looking at my court notes. Judges orders

 

1 Defendant send to court detailed defence and counter claim they kept my money.

 

 

2the claimant should comment whether or not he files and serves a reply

File a complete of account transactions between claimant and defendant specifically identify the nature of each transaction account must show

 

When the judge give the 3rd order I wrote down application adjourned for 6 weeks to think about it further.

I wonder what was meant by this

[dx100uk]

more hidden docs added

[dx100uk]

nope because they are docx..

 

later

[cruzhughes]

I think I need lots of help getting this last bit together.

[cruzhughes]

How will the court format run?

 

What do I need to be saying.

 

Do I disect each paragraph of theirs and state facts

 

Will I be referring back to my defence and counterclaim too

[cruzhughes]

Is the agreement enforceable

[cruzhughes]

Wish I’d found this before I done my defence. Makes sense and is a real good guide

 

On reading this it says I’ve got to reply to the counterclaim defence page 47. Is this true

A_Handbook_for_Litigants_in_Person[1].pdf

[AndyOrch]

Have they submitted a defence to your counter claim ?

[cruzhughes]

Yes it’s on post 1114

[AndyOrch]

No need to respond

[cruzhughes]

How come?

 

So what needs to be done now then

[cruzhughes]

I’ve just found this online Other potential defences

 

Irredeemably unenforceable secured loan agreement.

 

If possession proceedings are in relation to a pre 6th April 2007 secured loan regulated by the consumer credit act, you may have a defence on the ground that it is irredeemably unenforceable.

 

Now I’m starting to wonder if there was a reason that the one loan that was settled on 3/4/07 was rewritten for another on the same day was again rewritten on 5/10/07

[cruzhughes]

I think I’ve found something to do with MCD

 

Transitional provision: agreements before 21st March 2016

 

28.—(1) Subject to paragraph (2), this Order does not apply to the granting of credit pursuant to an agreement existing before 21st March 2016.

 

(2) Paragraph (1) does not prevent this Order from applying to a consumer credit back book mortgage contract from the later of—

 

(a)21st March 2016, if the consumer credit back book mortgage contract was entered into before that date; or

(b)the time at which the consumer credit back book mortgage contract is entered into.

 

Transitional provision: consumer credit back book mortgage contracts

 

29.—(1) This article applies to a consumer credit back book mortgage contract.

 

(2) If the contract would be enforceable against the borrower only on an order of the court as a result of the application of any provision of the Consumer Credit Act 1974(56) specified in paragraph (3), but for the amendments to legislation made by this Order, the contract is enforceable against the borrower only on an order of the court, and section 127 of the Consumer Credit Act 1974 (enforcement orders in cases of infringement)(57) applies in respect of the contract.

 

(3) The provisions of the Consumer Credit Act 1974 specified by this paragraph are—

 

(a)section 55(2) (disclosure of information)(58),

(b)section 61B(3) (duty to supply copy of overdraft agreement)(59),

©section 65(1) (improperly executed agreements),

(d)section 105(7)(a) or (b) (improperly executed security instruments),

(e)section 111(2) (failure to serve copy of notice on surety).

(4) If the contract would be void, or part of the contract would be void, as a result of the application of section 56(3) of the Consumer Credit Act 1974 (antecedent negotiations), but for the amendments to legislation made by this Order, the contract, or that part of the contract, is void.

 

(5) If a creditor would not be entitled to enforce a contract as a result of a failure to comply with a provision of the Consumer Credit Act 1974 specified in paragraph (6) but for the amendments to legislation made by this Order, then for the purposes only of correcting the failure to comply with the relevant provision of the Consumer Credit Act 1974, the contract is treated as if it were a regulated agreement and the creditor may enforce the contract only if the creditor has corrected the failure to comply.

 

(6) The provisions of the Consumer Credit Act 1974 specified in this paragraph are—

 

(a)section 77(1) (duty to give information to debtor under fixed-sum credit agreement)(60),

(b)section 77A(1) (statements to be provided in relation to fixed-sum credit agreements)(61),

©section 78(1) (duty to give information to debtor under running-account credit agreement)(62),

(d)section 85(1) (duty on issue of new credit-tokens),

(e)section 97(1) (duty to give information about early repayment)(63).

(7) If a creditor would not be entitled to enforce a contract because a period of non-compliance applies to the contract under section 86D of the Consumer Credit Act 1974 (failure to give notice of sums in arrears)(64), but for the amendments to legislation made by this Order, then for the purposes only of bringing the period of non-compliance to an end, the contract is treated as if it were a regulated agreement and the creditor may enforce the contract only if the period of non-compliance has ended.

 

(8) If a creditor would not be entitled to enforce a contract because section 86E(5) of the Consumer Credit Act 1974 (notice of default sums)(65) applies, but for the amendments to legislation made by this Order, then the creditor may enforce the contract only if the creditor has given the notice required by section 86E to the borrower.

 

(9) If a creditor would not be entitled to enforce the security provided in relation to a contract as a result of a failure to comply with a provision of the Consumer Credit Act 1974 specified in paragraph (10) but for the amendments to legislation made by this Order, then for the purposes only of correcting the failure to comply with the relevant provision of the Consumer Credit Act 1974, the contract is treated as if it were a regulated agreement and the creditor may enforce the security only if the creditor has corrected the failure to comply.

 

(10) The provisions of the Consumer Credit Act 1974 specified in this paragraph are—

 

(a)section 107(1) (duty to give information to surety under fixed-sum credit agreement)(66),

(b)section 108(1) (duty to give information to surety under running-account credit agreement)(67),

©section 110(1) (duty to give information to debtor or hirer)(68).

(11) The following provisions of the Consumer Credit Act 1974 and regulations made under those provisions apply in respect of the contract as if the contract were a regulated agreement—

 

(a)section 93 (interest not to be increased on default)(69),

(b)section 94 (right to complete payments ahead of time)(70),

©section 95 (rebate on early settlement)(71).

(12) Sections 140A to 140C of the Consumer Credit Act 1974 (unfair relationships)(72) apply to the contract as if section 140A(5) were omitted.

 

(13) In this article “regulated agreement” means a regulated agreement within the meaning of section 8(3) of the Consumer Credit Act 1974(73).

[dx100uk]

257 was settled by 303 £6767 3/4/7 - 303 take out date

so the legal charge taken out under 257 is current?

[cruzhughes]

Cos they were all a chain?

 

But they have not provided 303 or mentioned it any where in court docs only 661 984

 

They only got 257 showing showing settled on 3/4 and that statement confirming it

 

What you getting at

[dx100uk]

exactly that

the charge taken out against 257 expired when it was settled

 

so should have been removed

they cant use that to repo.

[cruzhughes]

They are trying their hardest though.

 

That’s what we’ve said all along.

 

I’ve listed every loan on my docs to the court though and prime so strange how it’s not been provided.

 

I even made a point in one letter saying how can you claim you have a 2006 charge for a Loan taken out in 2008? When 2006 was settled in 2007

 

So if they can use that to repo.

 

Where does the amount outstanding On said 2008 Loan come into play. What remedy can I find there

[dx100uk]

the claimant has failed to show the link between the charge numbered xxx that was registered under loan number xxx date xxx which welcome failed to removed upon settlement of loan number.

 

they appear to be trying to use an admin error/failure by welcome to remove am charge on another loan they have purchased that ws taken out xxx months later

they have failed to produce any charge notice relevant to the loan number they are litigating over so have no grounds to repo as no charge exists

 

the loan they are currently litigating under and using to get the repo is thus NOT a secured loan.

984 does have a legal charge certificate signed by you but welcome failed to register it

and ofcourse prime have not produced it nor the statements nor the agreement for loan 303 which does link the their repo claim...

 

IMHO last line of their reply kills them...257 was redeemed on 23 04 2007 [even that's a wrong date!)

 

4, the defendant applied for further advance aug 2008 against the same property...cant use the old charge

[cruzhughes]

Thank you.

 

Is it another witness statement I need to get together now then

 

Dx I’ve just noticed they have not included page 4 of 661 statement.

 

I wonder why I’m sure I will have that in the welcome sar.

 

Paragraph 4 a full statement of account is exhibited which evidences the credit being sent to the defendent.

 

But there was no credit it was a rewrite from 661 which was settled on the same date as 984 was taken out for exactly the same starting balance as the settlement balance

 

With another 2307 Ppi lumped on top taking the rewrite to 30 grand

[cruzhughes]

Agreement 303 was taken out 03/04/07

Agreement 661 was taken out 15/10/07

 

After reading what I’ve put below no wonder they ain’t provided that. Or am I barking up the wrong tree

 

 

If the agreement was made before 6 April 2007

 

The debt is ‘unenforceable’. This means you will still owe the debt, and your creditor can still chase you for the money, but they cannot:

 

take you to court

 

take away anything you bought using the money you borrowed

 

take away anything you used as security when taking out the loan - for example, your home

Edited February 26, 2018 by dx100uk
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[dx100uk]

pop in soon bit busy

[cruzhughes]

That’s fine I’m just realling stuff off as I come across them

[cruzhughes]

Judge asked about whether it was equitable when he mentioned tr4

 

Equitable assignment

An assignment which does not fulfil the statutory criteria for a legal assignment. An equitable assignment may be made in one of two ways:

The assignor can inform the assignee that he transfers a right or rights to him.

The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.

 

Only the benefit of an agreement may be assigned. There is no requirement for written notice to be given or received. The only significant difference between a legal assignment and an equitable assignment is that an equitable assignee often cannot bring an action in its own name against the third party contractor, but must fall back on the rules governing equitable assignments and join the assignor as party to the action.

 

Legal assignment

The usual way of assigning the benefit of any debt or other legal thing in action under section 136 of the Law of Property Act 1925. Under that section, the basic requirements for a legal assignment are as follows:

Only the benefit of an agreement may be assigned.

The assignment must be absolute.

 

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the

assignor.

 

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

 

Formalities

Legal mortgages. A legal mortgage must be in writing and executed as a deed by the mortgagor. To take effect as a legal mortgage, a mortgage over registered title must be registered at the Land Registry. If the security is not registered, it will usually take effect as an equitable mortgage.

 

Equitable mortgages and fixed charges. These must be in writing and signed by the security provider. They do not have to be executed as deeds by the security provider, but almost always are as the security will be weaker if they are not. If the security is intended to cover real estate not yet owned by the security provider, the security document must also be signed by the security holder.

 

A notice of an equitable mortgage or fixed charge over registered title can be registered at the Land Registry. This protects the priority of the security against subsequent security interests, though not earlier ones. However, it is not compulsory to register and lenders often choose not to.

 

Any mortgage or charge over real estate granted by a UK company or LLP must be registered at Companies House in the 21-day period immediately after the security is created or it will be void on insolvency and against other creditors.

 

https://uk.practicallaw.thomsonreuters.com/4-501-3222?__lrTS=20170926164151645&transitionType=Default&contextData=(sc.Default)

 

http://supremecourt.wa.gov.au/_files/Two_Conceptions_Equitable_Assignment_%20EdelmanJ.pdf

Edited March 1, 2018 by dx100uk
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[honeybee13]

That's an Australian link, cruz.

 

HB

[cruzhughes]

Yes but in it it’s saying in England and U.K. too?

 

And it also confirmed what the judge said when he asked where were the others named on the legal charge as they should be there.