Embedded Files
MORTIMER CLARKE SOLICITORS
26/08/2022
Dear Mr ,
Re: Cabot Financial UK limited
And:
Ref:
Claim No:
Balance:
We are writing to you regarding the above account.
After our Client's claim was issued, you filed a defence. So that we could provide you with the documents and information referred to in your defence, we were instructed to place your account on hold and take no further action in relation to the proceedings until our client had sent us, and we had provided you with, the information and documents requested.
The Agreement was assigned to our client by Oakbrook Finance Limited RE Like, Loans which meant our client needed to contact Oakbrook Finance Limited RE Likely Loans to obtain the documentation and information needed to respond to Your defence. As a result it has taken some time for us to come back to you.
This letter sets out our client's position in response to your defence and encloses the following:
• Agreement
• Statement of Account from original creditor
• Notice of Assignment
• Statement of account from our client
Your Defence
Your defence appears to be of a templated nature and does not contain any specific dispute of this claim, therefore, please find enclosed a copy of your defence for ease of reference.
Our client's position
Our client's position is set out below as relevant to your defence:
1. It is our client's position that the particulars provide sufficient details to enable you to establish the subject matter of these proceedings.
By way of background, we are instructed that this matter relates to an Unsecured Loan with Oakbrook Finance Limited RE Likely Loans bearing the agreement number 1200029502 entered into on or around 23/10/2015 and terminated on or around 25/11/2018. Please find enclosed a copy of the agreement for your records.
It is our client's position that the agreement was signed by electronic means. Our client would rely on the court's findings in the High Court matter of Bassano v Toft and Others [2014] EWHC 377 (QB) (26 February 2014). In this case Popplewell J held that:
"There is therefore nothing in the CCA to suggest that regulated agreements should not be capable of electronic signature; and I can see no reasons of policy why a signature should not be capable of being affixed and communicated electronically to an agreement regulated by the act."
2. Your reference to the Default Notice is inaccurate and misconceived. You were issued a Default Notice by Oakbrook Finance Limited RE Likely Loans in a letter sent on 21/02/2017. Our client has no statutory obligation to provide you with a copy of the Default Notice and has fully complied with its obligations regarding this matter.
3. Your allegation that this was irresponsible lending is misconceived. Oakbrook Finance will have carried out an assessment of your ability to repay the Loan when assessing whether to lend to you. Our client was not party to the original agreement and cannot comment on the lending practices of Oakbrook finance.
4. As noted in your defence, our client is not directly regulated by the Financial Conduct Authority ("FCA"). You also correctly identify the legislation upon which the Claimant relies in bringing proceedings: Paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001.
5 This is a topic around which much misinformation has been spread online. It is a highly complex topic and is completely outside the realm of a simple debt claim. A simplified version is that in order to bring proceedings for a debt regulated by the Consumer Credit Act 1974 (as this debt is), the creditor should be regulated by the FCA. However, where a creditor delegates the management of the accounts it owns to other FCA-regulated entities, it is entitled to rely upon the FCA authorisation of those entities, which perform all regulated activities on its behalf.
6. Our client Cabot Financial (UK) Limited is what is known as a 'Special Purpose Vehicle' ("SPV") - it exists for the sole purpose of purchasing and holding debts, and does not carry out any other activities itself. All of the debts it owns are managed by other members of the Cabot group with full and up-to-date FCA authorisation; specifically Cabot Credit Management Group Limited and Cabot Financial (Europe) Limited. Additionally, the Claimant's solicitor Mortimer Clarke Solicitors Limited is FCA authorised. This is a common business structure in the credit industry, of which the FCA is fully aware, and to which it has raised no concerns or objections.
7. It is unclear why you believe that a non-binding County Court decision relating to a wholly different creditor would have any relevance in relation to these proceedings. It is not a 'general principle of law' that the paragraph 55 exemption cannot be applied and to suggest so is extremely misleading. There has been one case on this topic relating to entities within the Cabot group; MFS Portfolio Limited v Phelan & West. That case, considered in great detail over four days of hearing in the Court of Appeal in 2019, held that MFS Portfolio Limited was entitled to rely upon the paragraph 55 exemption. MFS Portfolio Limited and Cabot Financial (UK) Limited operate in the same manner, both being entities within the Cabot group and both relying upon the authorisation of Cabot Credit Management Group Limited and Cabot Financial (Europe) Limited.
8. Our client's position is that the case regarding Arrow Global Guernsey Limited v Watson (County Court at Blackpool) [2019]) was a non-binding decision and this particular topic around FCA authorisation was not discussed in detail.
9. We wrote to you with a Letter Before Claim dated 11/02/2022 and informed you that we are solicitors instructed in relation to an outstanding balance due to our client Cabot Financial (UK) Limited. This is regarding an agreement originating with Oakbrook Finance Limited RE Likely Loans. It clearly stated that our client would like you to address the outstanding sum of £2225.61.
The Letter Before Claim included an Income and Expenditure form for completion within 14 days and said that failing to complete this would lead to court proceedings being issued. It is our client's position that you had been provided with ample opportunity to address this matter before the issuing of County Court Proceedings but failed to do so. Our client has fully complied with its Statutory obligations regarding Civil Procedure Practice Direction 16.
The Letter Before Claim clearly states that should you fail to respond our Client's instructions were to commence legal proceedings against you.
10. 0n 11/01/2019 the debt and agreement was assigned to our client, Cabot Financial (UK) Limited. By virtue of the assignment, our client has been assigned all rights and title to your debt, and thus is entitled to collection of the same. A copy of the Notice of Assignment was sent to you by both Oakbrook Finance Limited RE Likely Loans and our client on 31/01/2019. We enclose a further copy of the Notice of Assignment that was sent to your last known address at the time of the assignment.
11. Your comments regarding the Deed of Assignment are misconceived. The Deed of Assignment is a confidential document between our client and the original creditor. It does not contain any personal details relating to you and is not available for disclosure.
12. Your reference to the Law of property Act 1925 is misconceived. Section 196 of the act refers to how notice should be given; section 196(1) states: "Any notice required or authorised to be served or given by this Act shall be in writing."
13. It is noteworthy that section 136 requires that notice of the assignment be given, not that it be served - the two are clearly distinguished from each other in section 196. The remainder of section 196 relates only to notices which must be served and is thus not relevant to a notice of assignment. As the notice of assignment was sent to you by regular first class post, our client has complied fully with the requirements of the Law of Property Act 1925 in giving you notice of the assignment. Your statements alleging you are entitled to the Deed of Assignment are inaccurate and misconceived.
14. Your reference to section 44 of the Companies Act 2006 is misconceived. You have not explained your reference. In any case, this is a simple debt claim and this is not relevant in this matter.
15. Your reference to the case of Mitchell McFarlane and Partners Ltd -v- Foremans Ltd [2002] is misconceived. in this case it was said that "Van Lynn suggests that ... (a debtor) ... may be entitled to ask reasonable questions to ensure that he can safely pay the assignee. This would be particularly so where the Notice comes from the assignee... in such circumstances... some kind of confirmation from the assignor/original creditor may be necessary in order to achieve the requisite degree of certainty". In your case we, the assignee, sent you the notice of assignment. However, you have also been sent a letter from New Day Ltd RE Aqua advising of the assignment to our client. We further enclose a copy of this for your records.
As you were sent a Notice of assignment by the original creditor and further by us, we have satisfied your request for documentation evidencing the Assignment. Our client does not have any further statutory obligations to provide you the Deed of assignment.
16. We believe your reference to Van Lynn Developments -v- Pelias Construction Co Ltd [1968] is misconceived. The main issue in the Van Lynn case was what constitutes a Notice of Assignment. The comments from Lord Denning that you quote were therefore made without detailed discussion and consideration of the issue of disclosure of the Deed of Assignment.
17. Your reference to Jones v Link Financial Ltd [2013] is unclear, misconceived and misleading. That case did not discuss the Deed of Assignment directly nor set out any right for a debtor to view the Deed. That case related to whether or not an assignee was a 'creditor' pursuant to the Consumer Credit Act 1974 and the Court of Appeal found that it was, and that it was entitled to bring proceedings in its own name. The debtor's arguments and appeal were dismissed. It is the Claimant's position that the assignment is sufficiently evidenced by both assignor and assignee giving Defendant notice of the assignment (as noted above at paragraph 37).
18. It is our client's position that the particulars provide sufficient details to enable you to establish the subject matter of these proceedings. We have set out further details of this debt above.
19. We confirm that our client was unable to serve any documents with the claim form as it was served via the Claim Production Centre in Northampton. Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims to be issued by this centre.
The balance of your account currently stands at £2420.61. This balance includes any costs incurred as a result of attempting to recover the sum owed. Please find enclosed a statement of account for your records showing payments made and a breakdown of how the balance accrued.
The documentation available evidences that you entered into an Agreement with the original creditor, made use of the agreement, failed to maintain the re-payments in accordance with the Agreement, you defaulted on that Agreement and the Agreement was then assigned to our client. The documentation further evidences how the balance of £2420.61 accrued, that a balance remained outstanding at the time the debt was assigned.
Our client considers you fully liable for the outstanding balance.
NE\74011644\60110\
The way forward
If you do not agree with our client's position, please set out the precise legal basis of any defence you wish to raise within 28 days of the date of this letter.
If we do not receive a response from you, our client may instruct us to make an application to continue with the County Court Claim. This may result in a hearing where both parties points will be heard and the Judge will make a decision on the case. Should the Court decide in our client, favor, a County Court Judgment will be obtained against you. Our client would also ask the Court for you to pay the costs they have incurred as a result of the court action taken, these costs will be added to your debt..
Our client does not consider you to have a valid defence. We urge you to contact the Court to withdraw your defence and admit the claim. Should you remain unclear we suggest you seek independent legal advice. Should you wish to settle this matter without the need for further Court Action we invite you to propose an offer of settlement for our client's consideration.
Should you want to get in touch you can call or e-mail us, whichever suits you best. Our e-mail address is info@mortimerclarke.co.uk, if you would prefer to talk to us please contact our office on 0333 1214454 between 8:00am to 8:00pm Monday to Friday or
We look forward to hearing from you.
Yours faithfully
Mortimer Clarke Solicitors
23/09/2022
Dear Mortimer Clarke,
Thank you for your letter dated 26th August 2022. I am sorry for the delay in responding to this letter.
I am aware that a claim was issued and I filed a defence. I note that you put the account and took no further action on the account until your client sent you documents that I had requested. Surely a sound policy would be to make sure that you are in possession of all the documents required in a case BEFORE you start a claim. As you seem to be an 'in house' legal company for Cabot Financial UK Limited, it does not seem to me that it should take very long for you to request, and receive documents from your 'client'. I contend that you have wasted court time in bringing an action without all the necessary documents in place to establish if your 'client' has a valid claim.
It is disputed, as well you know, that the Void Agreement was assigned to your 'client' by Oakbrook Finance Limited (the 'Alleged Assignor') RE Likely Loans.
It is disputed that to respond to my defence that you should have needed to contact the Alleged Assignor. If your Client was in possession of a valid Legal Assignment, the documents should have been made available to your company BEFORE any litigation took place. It is evident to me that you did not conduct any DUE DILIGENCE prior to starting litigation.
It is noted that you believe that your letter includes:
• the Void Agreement
• An Alleged Statement of Account from original creditor
• An Alleged Notice of Assignment
• An Alleged Statement of account from your client
My Defence
It is disputed that my defence appears to be of a templated nature and does not contain any specific dispute of the claim. I put it to you that it is your client who is issuing multiple robotic template claims based on the purchase of lists of names and associated numbers on an EQUITABLE basis, which I believe amounts to an abuse of process in breach of CPR 3.4(2)(b). I have attached a sample of identical template claims made by your client and issued by your company in the County Court, providing decisively that your are issuing templated claims.
I suggest you are in a 'pot calling the kettle black' situation by alleging that my defence is a template and there is one suggestion I put to you - If you don't want to receive what appear to be a template response, STOP drafting templated Particulars of Claim.
Your client's position
My position in response to your clients position relevant to my defence is set out below:
1. It is disputed that the particulars provide sufficient details to enable me to establish the subject matter of these proceedings.
I am aware that this matter relates to an Unsecured Loan with the Alleged Assignor bearing the agreement number 1200029502 (the 'Void Agreement') entered into on or around 23/10/2015 and terminated on or around 25/11/2018. It is disputed that the document you have attached to your letter is a copy of the Void Agreement. It is my position that the Void Agreement was void from the outset due to the Alleged Assignor's failure to comply with Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending.
It is disputed that the agreement was signed by electronic means. It is disputed that your client can rely on the court's findings in the High Court matter of Bassano v Toft and Others [2014] EWHC 377 (QB) (26 February 2014). In this case Popplewell J held that:
"There is therefore nothing in the CCA to suggest that regulated agreements should not be capable of electronic signature; and I can see no reasons of policy why a signature should not be capable of being affixed and communicated electronically to an agreement regulated by the act."
The Court further found that:
"Providing it is the space in the document indicated for the purpose, "Accept" can therefore constitute a valid signature because the word "I" can be treated of the person agreeing to be bound by the terms of the document."
The Bassano v Toft and Others electronic signature differs from that of the alleged signature relied on by your client. Regulations prescribed that the signature had to be in “the space in the document indicated for that purpose”.
This was a separate requirement of form. The ‘I Accept’ button appeared in the designated space, but Mrs Bassano’s name was on the previous page. The judge held that the location requirement was satisfied. The words ‘I accept’ were in the correct place. The word ‘I’ could be treated as Mrs Bassano’s mark affixed for the purposes of authenticating and agreeing to be bound by the terms of the agreement.
The Defendant avers that the Alleged Signature relied on is not a signature at all and does not meet any of the standards applied in the Bassano v Toft and Others case as the Alleged Signature fails to identify either the Defendant or the intention to be bound by any agreement in the form of "I agree' as found in the Bassano v Toft and Others case.
The Defendant avers that the Electronic Identification, Authentication and Trust
Services Regulation (EU) No. 910/2014 (‘eIDAS’) distinguishes electronic signatures generally from:
(i) ‘advanced electronic signatures’ and
(ii) ‘qualified electronic signatures’,
and provides that qualified electronic signatures shall have the equivalent legal effect of a handwritten signature (Article 25).
Definitions:
‘Advanced electronic signatures’ are electronic signatures which meet the following requirements (Article 26):
(a) Uniquely linked to the signatory.
(b) Capable of identifying the signatory.
(c) Created using electronic signature creation data which the signatory can use under his sole control.
(d) Linked to the data signed in such a way that any subsequent change is detectable.
‘Qualified electronic signatures’ are advanced electronic signatures (see above)
which meet the following additional requirements (Article 3(12)):
Created by a qualified electronic signature creation device.
Based on a qualified certificate for electronic signatures.
The alleged signature in relation to the Void Agreement is not an advanced or qualified electronic signature and should not be treated as a hand written signature as required under Section 61 of the Consumer Credit Act.
2. You claim that my reference to the Default Notice is inaccurate and misconceived but you do not say why you believe this is inaccurate or misconceived. It is disputed that I was issued a Default Notice by the Alleged Assignor in a letter sent on 21/02/2017. It is disputed that your client has no statutory obligation to provide you with a copy of the Default Notice and has fully complied with its obligations regarding this matter. It is my contention that you are MUST provide a copy of the Default notice under Consumer Credit Act 1974 Sections 87 & 88 (1) and to establish a CAUSE OF ACTION in relation to the Void Agreement.
3. It is disputed that my allegation of irresponsible lending is misconceived. It is disputed that the Alleged Assignor will have carried out an assessment of your ability to repay the Loan when assessing whether to lend to you. It is agreed that your client was not party to the original agreement and cannot comment on the lending practices of the Alleged Assignor. It is my contention that the Alleged Assignor acted in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending making the Void Agreement void from the outset.
4. It is agreed as noted in my defence, that your client is not directly regulated by the Financial Conduct Authority ("FCA"). It is agreed that I also correctly identify the legislation upon which the Claimant relies in bringing proceedings: Paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001.
Your client cannot rely on paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001) for the purpose of bringing a claim due to the constraints of the Financial Services and Markets Act 2000 (as amended) S. 26A (4) which states:
(4) If the administration of an agreement involves the carrying on of a credit-related regulated activity, the agreement may not be enforced by a person for the time being exercising the rights of the lender under the agreement unless that person
[F2(a)] has permission, given under Part 4A or resulting from any other provision of this Act, in relation to that activity
[F3(b) is an appointed representative in relation to that activity,
(c) is an exempt person in relation to that activity, or
(d) is a person to whom, as a result of Part 20, the general prohibition does not apply in relation to that activity].
5 It is disputed that this is a topic around which much misinformation has been spread online. You appear to be conducting an Ad Hominem attack on the internet as a source of information,
It is disputed that this a highly complex topic and is completely outside the realm of a simple debt claim. It is disputed that a simplified version is that in order to bring proceedings for a debt regulated by the Consumer Credit Act 1974 (as this debt is), the creditor should be regulated by the FCA. It is disputed that where a creditor delegates the management of the accounts it owns to other FCA-regulated entities, it is entitled to rely upon the FCA authorisation of those entities, which perform all regulated activities on its behalf.
I put it to you that you that your client is reliant solely on an EQUITABLE assignment of a Void Agreement and as such conducts business using Paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001 to enable your client to handle Consumer Credit related accounts on an EQUITABLE basis, but when it comes to any ACTION AT LAW to enforce the benefit of the Void Agreement, your client CANNOT rely on this exemption LEGALLY.
6. It is not disputed that your client Cabot Financial (UK) Limited is what is known as a 'Special Purpose Vehicle' ("SPV") - it exists for the sole purpose of purchasing and holding debts, and does not carry out any other activities itself. It is disputed that all of the debts it owns are managed by other members of the Cabot group with full and up-to-date FCA authorisation; specifically Cabot Credit Management Group Limited and Cabot Financial (Europe) Limited. It is disputed that Mortimer Clarke Solicitors Limited FCA authorisation in any way legitimises the actions of your client who MUST be FCA registered to bring an Action at Law. I have no doubt that this is a common business structure in the credit industry, of which the FCA is fully aware, and to which it has raised no concerns or objections. In matters of EQUITY, the FCA is correct to allow your Client to rely on the Paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001 to allow your client to handle Consumer Credit Related accounts. When it comes to bringing a Chose in Action to Court, it is my contention that your client CANNOT rely on Paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001 due to the constraints of the Financial Services and Markets Act 2000 (as amended) S. 26A (4).
7. I do not believe it is unclear why you believe that a non-binding County Court decision relating to a wholly different creditor would have any relevance in relation to these proceedings. It is disputed that it is not a 'general principle of law' that the paragraph 55 exemption cannot be applied and to suggest so is extremely misleading. There has indeed been one case on this topic relating to entities within the Cabot group; MFS Portfolio Limited v Phelan & West ('the Case') and that case, considered in great detail over four days of hearing in the Court of Appeal in 2019, held that MFS Portfolio Limited was entitled to rely upon the paragraph 55 exemption.
It is not disputed that the ruling in relation to this point was upheld on appeal but this finding would have been challenged further had MFS Porfolio's case not been dismissed due to failure to provide any evidence of Locus Standi to bring a claim.
Joanna Connolly solicitor for the Defendant in the case:
"The court also positively approved of the principle established in a European case ruling we put before the court that it is for the creditor to prove statutory compliance.
The appeal court also found that MFS Portfolio Ltd had not proved the Assignment to it from the original creditor.
We were not successful on the MFS Portfolio Ltd’s lack of FCA Authorisation point. For obvious reasons, having won the actual appeal for our Clients, this won’t be appealed further by our Clients - however this decision is not a binding decision on other courts as HHJ Walden-Smith was sitting as a Circuit Judge and not as a High Court Judge."
The Defendant avers that the Claimant's failure to be registered with the FCA prohibits it from bringing an action at law as well as failure to provide any evidence of Locus Standi to bring a claim or any EXCEPTION to the Common Law Doctrine of Privity of Contract.
It is not disputed that MFS Portfolio Limited and Cabot Financial (UK) Limited operate in the same manner, both being entities within the Cabot group and both relying upon the authorisation of Cabot Credit Management Group Limited and Cabot Financial (Europe) Limited.
It is my contention that your Client has no Legal Standing ('Locus Standi') to issue a claim in the exact same way the MFS Portfolio Limited had no Locus Standi to issue a claim in the Case that you cite.
8. It is not disputed that the case regarding Arrow Global Guernsey Limited v Watson (County Court at Blackpool) [2019]) was a non-binding decision. It is disputed that this particular topic around FCA authorisation was not discussed in detail.
In the case of Arrow Global Guernsey Limited v Watson (County Court at Blackpool) (2019) the claim for monies owing under a MBNA Europe Bank Limited credit card agreement – Defendants application for Summary Judgment and/or the Claim to be struck out as no cause of action pleaded and the Claimant is not authorised by the Financial Conduct Authority to issue a claim in the county court- Particulars of Claim struck out, Summary Judgment for the Defendant, claim dismissed and costs on the indemnity basis. https://joannaconnollysolicitors.co.uk/arrow-global/
It would seem that this case is very similar to your client's claim as indeed as well as not being authorised by the Financial Conduct Authority, there was not CAUSE OF ACTION, a point that your client does no see fit to prove.
9. It is disputed that you wrote to me with a Letter Before Claim dated 11/02/2022 and informed you that we are solicitors instructed in relation to an outstanding balance due to our client Cabot Financial (UK) Limited and this is regarding an agreement originating with Oakbrook Finance Limited RE Likely Loans which clearly stated that our client would like you to address the outstanding sum of £2225.61.
It is disputed that the Letter Before Claim included an Income and Expenditure form for completion within 14 days and said that failing to complete this would lead to court proceedings being issued. It is disputed that I had been provided with ample opportunity to address this matter before the issuing of County Court Proceedings but failed to do so. It is disputed that your client has fully complied with its Statutory obligations regarding Civil Procedure Practice Direction 16.
It is disputed that the Letter Before Claim clearly stated that should you fail to respond our Client's instructions were to commence legal proceedings against me.
I believe that your client is in breach of CPR 16.4 (i)(a) and (c) and PD 16 paragraphs 7.3 (i) and (ii) by not providing concise details of claim and stating if claiming aggravated damages and provides no copy of contract relied on. In that the Particulars of Claim do not set out a clear and concise statement of facts upon which they rely.
In particular, the Particulars of Claim does not identify:
⦁ a. any clear summary of the facts on which the claim is based;
⦁ b. any explanation of how the amount of financial loss has been calculated;
⦁ c. any list of documents upon which the claimant intends to rely;
⦁ d. if the Claimant intends to rely on hearsay evidence; and;
⦁ e. any date(s) for cause of action, date of default notice, date of assignment or date of notice of assignment;
10. It is disputed that on 11/01/2019 the debt and agreement was assigned to our client, Cabot Financial (UK) Limited. It is disputed that by virtue of the assignment, your client has been assigned all rights and title to your debt, and thus is entitled to collection of the same. It is disputed that a copy of the Notice of Assignment was sent to you by both the Alleged Assignor and your client on 31/01/2019. It is disputed that a copy of the Notice of Assignment, that you have included, was sent to your last known address at the time of the assignment.
I contend that your Client has purchased a LIST of ACCOUNTS on an EQUITABLE basis without conducting any DUE DILIGENCE as to whether any BENEFIT of those accounts existed. By attempting to rely SOLELY on a claim of sending NOTICE or NOTICES of assignment you are simply demonstrating a CLAIM of EQUITABLE assignment and as such have no Locus Standi to issue a claim as demonstrated in this case:
See: (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - 'Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans.'
As you SHOULD know, a legal assignment has THREE elements.
See; [Jones v Link Financial Ltd (2013) ] 1 WLR 693 Where it was found that three conditions for the validity of a LEGAL assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.
It is my position that you have satisfied NONE of the THREE requirements of a valid Legal Assignment and as such have no LOCUS STANDI to issue a claim.
11. You claim that my comments regarding the Deed of Assignment are misconceived but do not explain WHY you think this. It is disputed that the Deed of Assignment is a confidential document between our client and the original creditor. It is my contention that the Deed of Assignment is the only document that can demonstrate a valid legal assignment and there is simply no excuse for not providing it. Any sensitive information can easily be redacted out of the document.
The fact that you stat that the Deed of Assignment does not contain any personal details relating to me leads me to the conclusion that you DO NOT have a VALID Deed of Assignment as CLEARLY it would have my NAME and ACCOUNT number within the document or it would quite simply be INVALID as a Deed of Assignment relating to my account.
The fact that you state the Deed of Assignment is not available for disclosure leads me to conclude that you DO NOT have one and any assignment relied on is solely EQUITABLE in nature and your have no Locus Standi to issue a claim in relation to the Void Agreement.
12. It is disputed that my reference to the Law of property Act 1925 is misconceived. It is agreed that section 196 of the act refers to how notice should be given; section 196(1) states: "Any notice required or authorised to be served or given by this Act shall be in writing."
It is my contention that you have failed establish any proof of service of any notice that you intend to rely on in your claim by providing any form of proof of postage.
13. It is noteworthy that section 136 requires that notice of the assignment be given, not that it be served - the two are clearly distinguished from each other in section 196.
It is not disputed that the remainder of section 196 relates only to notices which must be served and is thus not relevant to a notice of assignment. It is disputed that the notice of assignment was sent to me by regular first class post, it is disputed that your client has complied fully with the requirements of the Law of Property Act 1925 in giving you notice of the assignment. It is my contention that you should provide proof that any notice relied on was given, by providing proof of postage by any form of mail which is an acceptable way of service as demonstrated in Section 196 paragraph 4 of the Law of Property Act 1925:
(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 [F1by the postal operator (within the meaning of [F2Part 3 of the Postal Services Act 2011]) 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 disputed that my statements alleging you are entitled to the Deed of Assignment are inaccurate and misconceived.
See: (Van Lynn Developments v Pelias Construction Co Ltd [1969] 1 QB 607 Where Lord Denning MR said: '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.'
and: (Promontoria (Oak) Limited v Emanuel [2020] EWHC 104 (Ch)) - Marcus Smith J concluded that the decision of the recorder at first instance to permit the claimant’s reliance on the redacted copy deed was sufficiently flawed as to require setting aside;
14. It is disputed that my reference to section 44 of the Companies Act 2006 is misconceived. It is disputed that I have not explained this reference. It is disputed that this is a simple debt claim and this is not relevant in this matter. Section 44 relates to how many signatures must be on the Deed of Assignment and who is authorised to sign on behalf of a company. It is my position that as you are refusing to provide any evidence of a valid legal assignment that you do not have one and only have a claim of Equitable title to the benefit of the Void Agreement.
It is my position that this is not a 'simple debt claim' as you admit that your client was not a party to the Void Agreement. The Common Law Doctrine of Privity of Contract ('Privity') applies unless you can demonstrate and EXCEPTION to Privity.
See: Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 - The Lords agree fundamentally with the decision of the Court of Appeal; there was no contract between Dunlop and Selfridge and therefore Dunlop cannot sue.
A notice of assignment does not provide any evidence of an exception to Privity as demonstrated in this case:
See: (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - 'Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans.'
So to prove an EXCEPTION to Privity, you are required to provide the Deed of Assignment that you rely on in this matter otherwise you have shown no Locus Standi to bring your claim.
15. It is disputed that my reference to the case of Mitchell McFarlane and Partners Ltd -v- Foremans Ltd [2002] is misconceived. It is not disputed that in this case it was said that "Van Lynn suggests that ... (a debtor) ... may be entitled to ask reasonable questions to ensure that he can safely pay the assignee. This would be particularly so where the Notice comes from the assignee... in such circumstances... some kind of confirmation from the assignor/original creditor may be necessary in order to achieve the requisite degree of certainty". It is disputed that in my case we, the assignee, sent you the notice of assignment. It is disputed, however, that I have also been sent a letter from the Alleged Assignor advising of the assignment to your client. I is my contention that the two notices that are dated on the same date were not sent to me an did not originate from two different companies. I am aware that it is common practice for your client to send two notices claiming to be from alleged assignors in the same envelope dated on exactly the same date purporting to be from two companies when in fact they are not.
It is disputed that I was sent a Notice of assignment by the original creditor and further by your client, it disputed that you have satisfied my request for documentation evidencing the Alleged Assignment. It is disputed that your client does not have any further statutory obligations to provide you the Deed of assignment.
I contend that failure to provide the Deed of Assignment upon which you rely to demonstrate a valid legal assignment and exception from Privity can only mean that you do not have a valid legal assignment and are entirely reliant on a claim of Equitable assignment of the Void Agreement.
16. It is disputed that my reference to Van Lynn Developments -v- Pelias Construction Co Ltd [1968] is misconceived. It is disputed that the main issue in the Van Lynn case was what constitutes a Notice of Assignment and the comments from Lord Denning that you quote were therefore made without detailed discussion and consideration of the issue of disclosure of the Deed of Assignment.
See: (Van Lynn Developments v Pelias Construction Co Ltd [1969] 1 QB 607 Where Lord Denning MR said: '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.'
Upon reading the statements by Lord Denning in the case, it is CLEAR that the debtor is entitled to require sight of the Deed of Assignment. This is of course, so that the debtor can conduct DUE DILIGENCE and not be left in a LEGAL position where he could be required to pay the benefit of an agreement TWICE.
17. It is disputed that my reference to Jones v Link Financial Ltd [2013] is unclear, misconceived and misleading. It is not disputed that hat case did not discuss the Deed of Assignment directly nor set out any right for a debtor to view the Deed but the case highlights the requirements of a valid legal assignment.
See; [Jones v Link Financial Ltd (2013) ] 1 WLR 693 Where it was found that three conditions for the validity of a LEGAL assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.
I believe this is a good reference to highlight the meaning of Section 136 of the Law of Property Act 1925 Section 1:
(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—
It is not disputed that that the case related to whether or not an assignee was a 'creditor' pursuant to the Consumer Credit Act 1974 and the Court of Appeal found that it was, and that it was entitled to bring proceedings in its own name. I believe it is irrelevant that the debtor's arguments and appeal were dismissed. It is the disputed that the assignment is sufficiently evidenced by both assignor and assignee giving Defendant notice of the assignment (as noted above at paragraph 37).
It is disputed that either your client or the Alleged Assignor has given notice of assignment in this matter and you have demonstrated no exemption to Privity.
18. It is disputed that the particulars provide sufficient details to enable you to establish the subject matter of these proceedings. It is disputed that you have set out further details of the alleged debt above paragraph 18 in your letter.
It is contended that the Claimant is in breach of CPR 16.4 (i)(a) and (c) and PD 16 paragraphs 7.3(ii) by not providing concise details of claim and stating if claiming aggravated damages and provides no copy of contract relied on. In that the Particulars of Claim do not set out a clear and concise statement of facts upon which they rely.
In particular, the Particulars of Claim does not identify:
⦁ a. any clear summary of the facts on which the claim is based;
⦁ b. any explanation of how the amount of financial loss has been calculated;
⦁ c. any list of documents upon which the claimant intends to rely;
⦁ d. if the Claimant intends to rely on hearsay evidence; and;
⦁ e. any date(s) for cause of action, date of default notice, date of assignment or date of notice of assignment;
19. I understand that you confirm that your client was unable to serve any documents with the claim form as it was served via the Claim Production Centre in Northampton. It is noted that Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims to be issued by this centre. I contend that you COULD have supplied those documents separate to the Claim Form if you wished to do so as per Practice Direct 16 3.2:
3.2 Where the claimant does not include the particulars of claim in the claim form, particulars of claim may be served separately:
(1) either at the same time as the claim form, or
(2) within 14 days after service of the claim form1provided that the service of the particulars of claim is not later than 4 months from the date of issue of the claim form2 (or 6 months where the claim form is to be served out of the jurisdiction3).
It is disputed that the balance of my account currently stands at £2420.61 and this balance includes any costs incurred as a result of attempting to recover the sum owed. It is disputed that the alleged statement of account attached to your letter shows payments made and a breakdown of how the balance accrued.
It is contended that the data your are reliant upon is hearsay digital data similar to that relied on in the Horizon scandal that resulted in the deaths of 33 victims before the Post Office was forced to admit that their court cases were based on corrupt data.
https://www.express.co.uk/news/uk/1566088/post-office-it-scandal-news-33-victims-ont
It is disputed that the documentation available evidences that you entered into a agreement with the original creditor, made use of the agreement, failed to maintain the re-payments in accordance with the agreement and defaulted on that agreement and the agreement was then assigned to our client.
It is clear that you claim to evidence elements that you fail to provide any proof of. It is my contention that you have not provided any valid agreement as per Sections.77-79 of the Consumer Credit Act 1974, failed to provide any evidence of a default as per Consumer Credit Act 1974 Sections 87 & 88 (1) and failed to provide any evidence of any exception to Privity or of a valid Legal Assignment.
It is disputed that he documentation further evidences how the balance of £2420.61 accrued. It is disputed that a balance remained outstanding at the time the debt was allegedly assigned. It is disputed that I am fully liable for the outstanding balance to either the Alleged Assignor or your client.
Should you client seek to waste any more of my time or more importantly Court time in this matter, I will have no option but to ask the Court to dismiss your claim and seek costs against you in this matter.
Kind Regards,
[DEFENDANT NAME]
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