Help required from members please

Help required from members please · by **daveiron** Sat Jul 15, 2023 9:37 am

Guys, can we please come together to do more as a community. Myself and a few
others should not be doing it all .
With the release yesterday of a document from Robert at Observation Deck it
is very similar to one I had in mind for us, only combined with the obligation of
the claimant to return the original agreement as stated in case laws.

Whilst the NoCA seems to be working fine ,i think if we can hit the parasites from
many angles ,its all to the good. Its possible if we word it right we could see them
off with just one letter.

No one is expecting you to produce a finished document ,but the greater input from
others the better.

I know from PMs I receive from a few members that there is a willingness to help
in this process.

For the next few months I have a lot going on so will not be able to research and
create as much as I would like ,so can we please come together on this.

Please remember ,unlike most other sites ,all we ever ask for is feedback .We give
our time willingly and for free.

References to Case Law is very relevant as County Court judges must follow it.

So whether its a complete document or just info that can be used in one ,please
post it in order that we can between us produce something worthwhile.

Re: Help required from members please · by wakey wakey Sat Jul 15, 2023 5:38 pm

Common law privity of contract
Although a contract or its performance can affect a third party, the doctrine of privity means that, as a general rule, a contract cannot confer rights or impose obligations arising under it on any person except the parties to it.
Contracts (Rights of Third Parties) Act 1999
Section 1 (3)
(3)The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.
Explained by Daren and where I came across above in link below , watch from about 6 mins in.

Re: Help required from members please · by Pete012 Sun Jul 16, 2023 1:29 am

wakey wakey wrote:Common law privity of contract
Although a contract or its performance can affect a third party, the doctrine of privity means that, as a general rule, a contract cannot confer rights or impose obligations arising under it on any person except the parties to it.
Contracts (Rights of Third Parties) Act 1999
Section 1 (3)
(3)The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.
Explained by Daren and where I came across above in link below , watch from about 6 mins in.

Hi Darren,

Although he says that ""Contracts (Rights of Third Parties) Act 1999
Section 1 (3)
(3)The third party must be expressly identified in the contract by name"".... it then goes on to say ""as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.""

So I am a bit confused as to that second part as to a "member of class".."" answering a particular description"" and particularly ""but need not be in existence when the contract is entered into."".

Does that make what he says about "must be expressly identified in the contract by name" null and void?.

Pete.

Re: Help required from members please · by **daveiron** Sun Jul 16, 2023 6:04 am

Those were my thoughts on it also.

Re: Help required from members please · by Pete012 Sun Jul 16, 2023 10:48 am

daveiron wrote:Those were my thoughts on it also.

So what do you think about that paragraph then, Dave?

In the video, he says that "The third party must be expressly identified in the contract by name"" (BOOM!)....
but, as you can see, the paragraph goes on with three other proclamations which, as far as I can understand, makes the first part invalid by itself.

Am I wrong?.

How would you interpret the whole paragraph in meaning?.

Pete

Re: Help required from members please · by **daveiron** Sun Jul 16, 2023 10:59 am

Personally i think it should not be relied upon as it seems open to interpretation.

Re: Help required from members please · by **daveiron** Sun Jul 16, 2023 11:00 am

Ok , i have put together a quick draft ,please discuss and give suggestions:

I have received from you a claim that I have an obligation to pay an alleged debt
which you claim to have purchased from xxxxxxx.

In order that I may address this matter ,please provide answers to and documentation
to lawfully justify your claim.

1. Do you hold Legal title (please do not confuse with Equitable title).

2. Please confirm that you hold a correctly executed Deed of Assignment, and
also confirm you will provide a certified copy for my inspection. ( Please refrain form
the statement often seen on the internet ,claiming I have no right to see it as it contains
commercial information) I feel sure you are aware of Pre Action Protocol sec 5.1 /5.2
I also refer you to the Lord Denning judgement in Van Lynn Development v Pelias Construction Co Ltd , amongst others.

3. Please also confirm that said Deed of Assignment complies with the Companies
Act 2006 sec 4.

4. Please also confirm that should your DoA be fully compliant and you can fully
provide evidence to further support your claim ,you will arrange at a time and place
convenient to both parties ,exchange the original agreement (free from any endorsements of other markings ) for payment in full in order that I may cancel said agreement .I am sure you are aware that the only valid claim can be from the Holder in Due Course .

5. Should you not be the Holder in Due Course, please give an explanation why you believe your claim to be valid.

Re: Help required from members please · by waylander62 Sun Jul 16, 2023 10:12 pm

ok i will also put forward my opinion on this, which may be controversial at times but it is only my opinion. What i will say is it is born from experience and trying new approaches.

First thing i want to do is give a BIG thank you to Dave for his never ending work which goes into finding information and offering help to many people. Each 'case' , each 'claim' each problem is a learning curve for everybody but it requires ALL MEMBERS to put in their own work and NOT to just rely on others to do all of the work for them, this is most important as if you dont 'understand' what you are doing to some extent you will fail despite all of the help you may have received.

in respect of the title as pointed out in number 1 .

1 I agree with asking this question of the debt buyer, but i would not go any further than asking a very simple but also crucial question. However i would not even ask this question (YET ) if you do not have or have not received a notice of assignment.

my approach would be to write and ask the 'debt buyer' just 1 simple question. ( again only if you have a copy of the notice of assignment )

Please confirm whether the alleged assignment was legal or equitable.

that's it no more no less than that, you do not need at this stage to mention the assignment document ie the deed of assignment.

if you dont possess any notices of assignment then you need to ask for it/them , before going any further.

this is just my opinion on this.

Re: Help required from members please · by **daveiron** Mon Jul 17, 2023 8:47 am

Thanks for the input Waylander its much appreciated.
I agree with your approach by asking just one question to start with
and i believe OD suggest the same (lure them into a bit of a trap).

I belive its always better to try to stop them long before any court action,
as i believe court is the last place we want to be. Its to these ends that i
am trying to improve our approach.

Re: Help required from members please · by flyingfish Mon Jul 17, 2023 9:19 am

On a couple of the legal questions, firstly the cited section of the Contracts (Rights of Third Parties) Act 1999 actually says ..
"The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into."

So there's no actual ambiguity there, that only appears because people have grabbed fragments of the sentence at a time. The section boils down to the third party must be identified in one of three alternative ways.

Secondly "Van Lynn". I've just got hold of the full judgement both as a scan of the original typescript and in text form. I recommend people read this first hand rather than rely on handed down citations. It wouldn't be the first time that reading an actual case show that a much quoted comment was in fact obiter, or out of context, or not even there.

I will see if I can attach these.

Attachments

: Van Lynn Developments Ltd v Pelias Construction Company Ltd (text).txt You don't have permission to download attachments.(14 Kb) Downloaded 7 times

Re: Help required from members please · by flyingfish Mon Jul 17, 2023 9:22 am

Didnt seem to like the scan, try again ..

Attachments

: Van Lynn Developments Ltd v Pelias Construction Company Ltd (scanned typescript).pdf You don't have permission to download attachments.(1.6 Mb) Downloaded 4 times

Re: Help required from members please · by mitch Mon Jul 17, 2023 11:07 am

flyingfish wrote:
So there's no actual ambiguity there,

Where is mentions "person", this refers to an individual's dead legal fiction which is highly ambiguous

Help required from members please Captur12

Re: Help required from members please · by flyingfish Mon Jul 17, 2023 11:46 am

Unless otherwise defined the term will have the meaning given in the Interpretation Act ..

“Person” includes a body of persons corporate or unincorporate.

I am not familiar with "dead legal fiction" reference, but it sounds a bit like the strawman theory promoted by Freeman on the Land. Have you found it effective?

Re: Help required from members please · by waylander62 Mon Jul 17, 2023 11:53 am

mitch wrote:
flyingfish wrote:
So there's no actual ambiguity there,

Where is mentions "person", this refers to an individual's dead legal fiction which is highly ambiguous

does it though ? we are in the realms of 'law' here what is the definition of 'person' under the law of contracts / contract law ?

Re: Help required from members please · by **daveiron** Mon Jul 17, 2023 12:06 pm

FF, regardless of the intricacies of the Denning judgement .he clearly stated
"The debtor is entitled to view the sale agreement". The word entitled is i
believe crucial. To my mind if they refuse to disclose the sale agreement
could not any Tom Dick or Harry make the same claim ?

A deed is a written document which is executed with the necessary formality (that is, more than a simple signature), and by which an interest, right or property passes or is confirmed,

We also have referencies CPR 31.6 & Fraud act 2006 sec 3.

Re: Help required from members please · by flyingfish Mon Jul 17, 2023 1:37 pm

daveiron wrote:FF, regardless of the intricacies of the Denning judgement .he clearly stated
"The debtor is entitled to view the sale agreement". The word entitled is i believe crucial. To my mind if they refuse to disclose the sale agreement could not any Tom Dick or Harry make the same claim.

Cheers. Are my attachments readable?

I was hoping that some people might read the actual judgement to see for themselves. However as far as I can see neither the word "sale" nor "agreement" appear in the judgement at all. So if that's correct something else has been misquoted, but I don't know what. It may just be a wording difference. The case as a whole concerns the notice of assignment, and not the deed or sale agreement, so its not that obvious where that comment in its original form might appear.

I think it needs a bit of review so that if challenged, the other party could be pointed to the exact paragraph that's being quoted.

That's not to say that you're incorrect about proving a legal assignment, it's just that making a mistake in citing case law would weaken your position overall.

Re: Help required from members please · by wakey wakey Mon Jul 17, 2023 4:41 pm

I am not yet up to your level of reading and understanding , but I am trying. Will looking at this help?
Contracts (Rights of Third Parties) Act 1999 Explanatory Notes

Re: Help required from members please · by flyingfish Mon Jul 17, 2023 5:09 pm

daveiron wrote:A deed is a written document which is executed with the necessary formality (that is, more than a simple signature), and by which an interest, right or property passes or is confirmed,

That reminds me, you're quite correct that if we're talking contract and law then "deed" has a specific meaning. But what I'm wondering is does assignment of a debt always have to be by deed, or could it sometimes be by simple contract? Maybe when asking for proof of assignment we should use more general terminology.

Re: Help required from members please · by **daveiron** Mon Jul 17, 2023 6:04 pm

FF,
agreed ,maybe the van Lynn case should perhapes be dropped,although
the qoute "intitled to view the sale agreement" should not be ignored.

If you get time can you cast your eyes over these judgments ,found by
tattyboggle ;
https://sites.google.com/view/deed-of-assignment-access/home

Re: Help required from members please · by waylander62 Mon Jul 17, 2023 11:50 pm

the precise wording i believe is as follows:

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.

IT IS VALID to me is the important part which people overlook, execution of deeds are quite complex and needs to be done totally correctly, there will also contain terms and conditions to which the buyer must adhere, which they often don't.

Re: Help required from members please · by waylander62 Mon Jul 17, 2023 11:57 pm

to be honest the contract right of third parties act is a waste of time, i have never known any defendant win using this argument. In the type of contracts/agreements dealt with on here.

the agreement is covered by the CCA which Judges will use as their benchmark, in most cases. And in every agreement terms and conditions you will find that their is a clause which clearly states they have the right to transfer the account to a third party.

Re: Help required from members please · by waylander62 Tue Jul 18, 2023 12:03 am

flyingfish wrote:
daveiron wrote:A deed is a written document which is executed with the necessary formality (that is, more than a simple signature), and by which an interest, right or property passes or is confirmed,
That reminds me, you're quite correct that if we're talking contract and law then "deed" has a specific meaning. But what I'm wondering is does assignment of a debt always have to be by deed, or could it sometimes be by simple contract? Maybe when asking for proof of assignment we should use more general terminology.

I have never known portfolios which in general are dealt with on the forum, not to have been assigned using a deed of assignment, but i dont believe it is written in law that it MUST be done by deed.

so it is possible that it could be assigned by simple contract ( i have not yet found otherwise )

and recently a very well known debt buyer and their in house solicitors have now started claiming just that!!

Re: Help required from members please · by **daveiron** Tue Jul 18, 2023 9:13 am

Maybe i should change Deed of Assignment in the NoCA to 'Sale agreement'
and always use that when quoting Van Lynn case.
However looking at the link 3 posts above ,there are cases sited where they
refer to a DoA .
So perhaps we should refer ; Sale Agreement / Deed of Assignment.

If we can nail this part, I think we should move on to the return of the note,
and evidence they have it . The Spaniard has provided case law on this. ie
are they the Holder in Due Course ? Its a security & they only hold a lien over
it until its paid.
My aim if possible is to produce a single letter to stop them in their tracks,
maybe wishfull thinking but possibly worth a go.

Re: Help required from members please · by **urchinatheart** Tue Jul 18, 2023 12:06 pm

Very helpful. I think the Van Lynn case transcript makes it clear that the debtor must have sight of any agreement/deed/contract and if so why are the assignees so unwilling to provide this if they are trying to enforce it ? And what have they been assigned or contracted to collect if they cannot show the original 'note' ?

Re: Help required from members please · by waylander62 Tue Jul 18, 2023 12:45 pm

they cannot show the original note, nor can the original creditor as neither of them have it, it is really very very complicated as to what happens and a whole new realm of research and understanding.

the difficulty with seeing the note is that Judges will not order that to be produced and their is case law supporting this, however it is worth asking for it and see what their response is, certainly ask if they have the original in their possession, these debt buyers often shoot themselves in the foot.

I agree with Dave in respect of the assignment document i always ask for a copy of the sale agreement / deed of assignment, but NOT before they have answered the question of whether they are claiming equitable or legal title.

AND also provided a copy of the notice of assignment AND confirm how said notice was served upon the 'debtor'

Re: Help required from members please · by Sponsored content