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136 Legal assignments of things in action. E+W

(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—

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

(c) the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1 Trustee Act, 1925.

(2) This section does not affect the provisions of the M2 Policies of Assurance Act, 1867.

[ F1 (3) The county court has jurisdiction (including power to receive payment of money or securities into court) under the proviso to subsection (1) of this section where the amount or value of the debt or thing in action does not exceed [ F2 £30,000 ] . ]

Textual Amendments

F1 S. 136(3) added by County Courts Act 1984 (c. 28, SIF 34) , s. 148(1) , Sch. 2 Pt. II para. 4

F2 Words in s. 136(3) substituted (1.7.1991) by S.I. 1991/724 , art. 2(8) , Sch. Pt. I (with art. 12 )

Modifications etc. (not altering text)

C1 S. 136 excluded (12.2.1992) by S.I. 1992/225 , reg. 18(2)(c) ; and (19.12.1995) by S.I. 1995/3272 , reg. 32(5)

S. 136 excluded (26.11.2001) by S.I. 2001/3755 , reg. 38(5)

S. 136 excluded (26.12.2003) by The Financial Collateral Arrangements (No. 2) Regulations 2003 (S.I. 2003/3226) , reg. 4(3)

C2 S. 136(1) proviso extended (1.7.1991) by S.I. 1991/724 , art. 2(5) (with art. 12 )

C3 S. 136(3) modified by County Courts Act 1984 (c. 28, SIF 34) , s. 24(2) ( c )

Marginal Citations

M1 1925 c. 19 .

M2 1867 c. 144 .

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Deed of Assignment and the Notice of Assignment -What is the Difference?

In this article, Richard Gray barrister takes a brief look at the differences between a Deed of Assignment and a Notice of Assignment and the effect of the assignment on the contracting party

At the end of 2020, Elysium Law were instructed to act for a significant number of clients in relation to claims made by a company known as Felicitas Solutions Ltd (an Isle of Man Company) for recovery of loans which had been assigned out of various trust companies following loan planning entered into by various employees/contractors.

Following our detailed response, as to which please see the article on our website written by my colleague Ruby Keeler-Williams , the threatened litigation by way of debt claims seem to disappear. It is important to note that the original loans had been assigned by various Trustees to Felicitas, by reason of which, Felicitas stood in the shoes of the original creditor, which allowed the threatened action to be pursued.

After a period of inertia, Our Clients, as well as others, have been served with demand letters by a new assignee known as West 28 th Street Ltd . Accompanying the demand letters is a Notice of Assignment, by reason of which the Assignee has informed the alleged debtor of the Assignees right to enforce the debt.

Following two conferences we held last week and a number of phone call enquiries which we have received, we have been asked to comment upon the purport and effect of the Notice of Assignment, which the alleged debtors have received. Questions such as what does this mean (relating to the content) but more importantly is the ‘Notice’ valid?

Here I want to look briefly at the differences between the two documents.

There is no need for payment to make the assignment valid and therefore it is normally created by Deed.

 The creation of a legal assignment is governed by Section 136 of the Law of Property Act 1925:

136 Legal assignments of things in action.

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

(c) the power to give a good discharge for the same without the concurrence of the assignor:

Some of the basic requirements for a legal assignment are;

• The assignment must not be subject to conditions.
• The rights to be assigned must not relate to only part of a debt, or other legal chose in action.
• The assignment must be in writing and signed by the assignor.
• The other party or parties to the agreement must be given notice of the assignment.

Notice of assignment

To create a legal assignment, section 136 requires that express notice in writing of the assignment must be given to the other contracting party (the debtor).

Notice must be in writing

Section 136 of the LPA 1925 requires “express notice in writing” to be given to the other original contracting party (or parties).

 Must the notice take any particular form?

The short answer is no. Other than the requirement that it is in writing, there is no prescribed form for the notice of assignment or its contents. However, common sense suggests that the notice must clearly identify the agreement concerned.

Can we  challenge the Notice?

No. You can challenge the validity of the assignment assignment by ‘attacking the Deed, which must conform with Section 136. In this specific case, the Notice sent by West 28 th Street in itself is valid. Clearly, any claims made must be effected by a compliant Deed and it is that which will require detailed consideration before any right to claim under the alleged debt is considered.

Can I demand sight of the assignment agreement

On receiving a notice of assignment, you may seek to satisfy yourself that the assignment has in fact taken place. The Court of Appeal has confirmed that this is a valid concern, but that does not give an automatic right to require sight of the assignment agreement.

In Van Lynn Developments Limited v Pelias Construction Co [1969]1QB 607  Lord  Denning 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…”

The Court of Appeal subsequently confirmed this  stating the contracting party is entitled to satisfy itself that a valid absolute assignment has taken place, so that it can be confident the assignee can give it a good discharge of its obligations

The important document is the Deed of Assignment, which sets out the rights assigned by the Assignor. The Notice of Assignment is simply a communication that there has been an assignment. The deed is governed by Section 136 of the LP 1925. It should be possible to obtain a copy of the Deed prior to any action taken in respect of it.

For more information on the claims by West 28 th Street or if advice is needed on the drafting of a Deed, then please call us on 0151-328-1968 or visit www.elysium-law.com .

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Assignments: why you need to serve a notice of assignment

Catherine phillips.

PSL Principal Associate

It's the day of completion; security is taken, assignments are completed and funds move. Everyone breathes a sigh of relief. At this point, no-one wants to create unnecessary paperwork - not even the lawyers! Notices of assignment are, in some circumstances, optional. However, in other transactions they could be crucial to a lender's enforcement strategy. In the article below, we have given you the facts you need to consider when deciding whether or not you need to serve notice of assignment.

What issues are there with serving notice of assignment?

Assignments are useful tools for adding flexibility to banking transactions. They enable the transfer of one party's rights under a contract to a new party (for example, the right to receive an income stream or a debt) and allow security to be taken over intangible assets which might be unsuitable targets for a fixed charge. A lender's security net will often include assignments over contracts (such as insurance or material contracts), intellectual property rights, investments or receivables.

An assignment can be a legal assignment or an equitable assignment. If a legal assignment is required, the assignment must comply with a set of formalities set out in s136 of the Law of Property Act 1925, which include the requirement to give notice to the contract counterparty.

The main difference between legal and equitable assignments (other than the formalities required to create them) is that with a legal assignment, the assignee can usually bring an action against the contract counterparty in its own name following assignment. However, with an equitable assignment, the assignee will usually be required to join in proceedings with the assignor (unless the assignee has been granted specific powers to circumvent that). That may be problematic if the assignor is no longer available or interested in participating.

Why should we serve a notice of assignment?

The legal status of the assignment may affect the credit scoring that can be given to a particular class of assets. It may also affect a lender's ability to effect part of its exit strategy if that strategy requires the lender to be able to deal directly with the contract counterparty.

The case of General Nutrition Investment Company (GNIC) v Holland and Barrett International Ltd and another (H&B) provides an example of an equitable assignee being unable to deal directly with a contract counterparty as a result of a failure to provide a notice of assignment.

The case concerned the assignment of a trade mark licence to GNIC . The other party to the licence agreement was H&B. H&B had not received notice of the assignment. GNIC tried to terminate the licence agreement for breach by serving a notice of termination. H&B disputed the termination. By this point in time the original licensor had been dissolved and so was unable to assist.

At a hearing of preliminary issues, the High Court held that the notices of termination served by GNIC , as an equitable assignee, were invalid, because no notice of the assignment had been given to the licensee. Although only a High Court decision, this follows a Court of Appeal decision in the Warner Bros Records Inc v Rollgreen Ltd case, which was decided in the context of the attempt to exercise an option.

In both cases, an equitable assignee attempted to exercise a contractual right that would change the contractual relationship between the parties (i.e. by terminating the contractual relationship or exercising an option to extend the term of a licence). The judge in GNIC felt that "in each case, the counterparty (the recipient of the relevant notice) is entitled to see that the potential change in his contractual position is brought about by a person who is entitled, and whom he can see to be entitled, to bring about that change".

In a security context, this could hamper the ability of a lender to maximise the value of the secured assets but yet is a constraint that, in most transactions, could be easily avoided.

Why not serve notice?

Sometimes it's just not necessary or desirable. For example:

• If security is being taken over a large number of low value receivables or contracts, the time and cost involved in giving notice may be disproportionate to the additional value gained by obtaining a legal rather than an equitable assignment.
• If enforcement action were required, the equitable assignee typically has the option to join in the assignor to any proceedings (if it could not be waived by the court) and provision could be made in the assignment deed for the assignor to assist in such situations. Powers of attorney are also typically granted so that a lender can bring an action in the assignor's name.
• Enforcement is often not considered to be a significant issue given that the vast majority of assignees will never need to bring claims against the contract counterparty.

Care should however, be taken in all circumstances where the underlying contract contains a ban on assignment, as the contract counterparty would not have to recognise an assignment that is made in contravention of that ban. Furthermore, that contravention in itself may trigger termination and/or other rights in the assigned contract, that could affect the value of any underlying security.

What about acknowledgements of notices?

A simple acknowledgement of service of notice is simply evidence of the notice having been received. However, these documents often contain commitments or assurances by the contract counterparty which increase their value to the assignee.

Best practice for serving notice of assignment

Each transaction is different and the weighting given to each element of the security package will depend upon the nature of the debt and the borrower's business. The service of a notice of assignment may be a necessity or an optional extra. In each case, the question of whether to serve notice is best considered with your advisers at the start of a transaction to allow time for the lender's priorities to be highlighted to the borrowers and captured within the documents.

For further advice on serving notice of assignment please contact Kirsty Barnes or Catherine Phillips  from our Banking & Finance team.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

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What is a notice of assignment?

An assignment takes place when one party is holding a right to property, claims, bills, lease, etc., of another party and wishes to pass it along (or sell it) to a third party. As complicated as that sounds, it really isn’t. Strangely enough, many assignments can be made under the law without immediately informing, or obtaining the permission, of the personal obligated to perform under the contract. An example of this is when your mortgage is sold to another mortgage company. The original mortgage company may not inform you for several weeks, and they certainly aren’t going to ask your permission to make the sale.

If a person obligated to perform has received notice of the assignment and still insists on paying the initial assignor, the person will still be obligated to pay the new assignee according to the agreement. If the obligated party has not yet been informed of the assignment and pays the original note holder (assignor), the assignor is obligated to turn those funds over to the new assignee. But, what are the remedies if this doesn’t take place? Actually, the new assignee may find themselves in a difficult position if the assignor simply takes off with their funds or payment. They are limited to taking action against the person they bought the note from (assignor) and cannot hold the obligator liable. Therefore, it is important to remember that if any note or obligation is assigned to another party, each party should be well aware of their responsibilities in the transaction and uphold them according to the laws of their state. Assignment forms should be well thought out and written in a manner which prevents the failure of one party against another.

Related posts:

• Does your Agreement Require an Assignment Legal Form?
• Why Every Landlord and Tenant Needs a Lease Agreement
• Why you need a Power of Attorney and How to Assign One

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Delivering valid notices of assignment: s 136 in 2024

INTRODUCTION

The Law of Property Act 1925 (LPA 1925) was enacted 99 years ago in April 1925. A few years before the first commercial radio and telephone service. Historians might argue about the comparative economic and social significance, and value, of the ability to assign debts and/or the right to sue now and then. No one could argue that the form and content of commercial documentation and communications has not changed dramatically in those 99 years. Yet the wording of s 136(1) of the LPA 1925 has not changed at all. Electronic communications are now the norm in the commercial world. They have brought with them less formality and less time to think than pen and paper afforded us in the past. This article focuses principally on how we should understand that 1925 provision today in order to ensure valid, legal (or statutory) assignments that bind the debtor, or third parties are effected. This article is confined to the legal position in England and Wales.

Debts or other choses in action (intangibles) were not assignable at common law. As is so often the case equity intervened and where equity intervened statute followed. A general ability to assign such assets and interests was first introduced in 1873. Since 1 January 1926 there have been two ways to assign debts and choses in action: a legal or statutory assignment under s 136 of the LPA 1925 or an assignment taking effect in equity. Equitable assignments may arise because that is what the parties intended or had to do or because, although they intended to effect a legal assignment it was defective.

SECTION 136 LPA 1925

The advantage of a legal assignment is that there is no need to consider whether it is necessary to sue in the name of the assignor or join the assignor to any proceedings to enforce the assigned debt or chose in action. It follows compliance with s 136 streamlines the business of such enforcement.

Section 136(1) of the LPA 1925 is in these terms:

“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-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

(c) the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or other thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or other thing in action; he may, if he thinks fit, either call upon the persons making the claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act 1925.”

It follows to secure the benefit of s 136 and effect a legal assignment, the assignment must be:

• absolute and not by way of a charge;
• in writing;
• under the hand of the assignor; and
• express notice in writing, of the assignment, must be given to the debtor or trustee.

The essence of a legal assignment as described in s 136(1) is that the assignee is themself entitled to enforce the right and give discharge for its satisfaction and the debtor can confidently pay a new person, the assignee, without fear of the assignor seeking to enforce and rejecting the payment to the assignee as discharge. Seen in that way the need for both the assignment itself and the notice is unsurprising.

IN WRITING AND UNDER THE HAND OF THE ASSIGNOR: 1  THE FORM

Section 136 does not require an assignment to take a particular form.  Chitty on Contracts  (35th Edition para 23-016) has long described what is required as:

“A direction in writing by a creditor to his debtor to pay the assignee, handed to the assignee, may amount to an assignment, but such a direction handed to the debtor will not by itself constitute an assignment unless there is evidence that the assignee has requested or consented to it … .”

That description highlights the bilateral nature of the assignment itself in that both assignee and assignor must agree. However, the requirement for writing relates to the debtor.

The words “under the hand of” is understood to simply mean written and signed. It does not require a document to be executed as a deed:  Trustee Solutions Ltd v Dubery  [2006] EWHC 1426.

The addition of the words “of the assignor” after “under the hand” have been applied strictly by the courts in both  Technocrats International Inc v Fredic Limited  [2004] EWHC 692 (QB) and  Frischmann v Vaxeal Holdings SA & ors  [2023] EWHC 2698 (Ch). In both cases it was successfully argued that the wording of s 136(1) requires the signature authenticating the written assignment to be that of the assignor themselves, and not an agent or attorney of the assignor. The fact that elsewhere in the LPA 1925, for instance s 40 (now repealed) and s 53, provisions expressly refer to the signatures of a person  or their agent  as being required and sufficient was a strong reason for the different language in s 136 to be construed as confined to the assignor. Accordingly, both Field J in  Technocrats  at paras 53-55 and Master McQuail in  Frischmann  at 61 conclude the assignor themselves must sign an assignment for it to comply with s 136 and so amount to a legal assignment.

That strict interpretation is helpful for practitioners against the background of the recent decision suggesting ordinary email signatures are signatures for the purpose of other formalities. In  Neocleous v Rees  [2020] 2 P.&C.R. 4 an automatic email signature of a solicitor was found to be sufficient for compliance with s 2 of the Law of Property (Miscellaneous Provisions) Act 1989 on a compromise involving a disposition of an interest in land. It follows for that purpose emails exchanged between solicitors, with their automated signatures, might all else being equal bind their clients (as s 2 permits signature by agents). An email signature that is automatically applied to authenticate a communication can be a signature for the purposes of most formalities. As a result,  Neocleous  sent shivers down the spines of many solicitors concerned that rapid email exchanges result in binding agreements they did not intend to make or have instructions for.

It follows, in the sphere of assignments, thanks to the words “under the hand of the assignor” solicitors are not at risk of unintentionally binding their clients. However, creditors and potential assignees communicating directly by email may effect a binding assignment without being clear that is what they meant to do.

ABSOLUTE ASSIGNMENT:  THE CONTENT

The words “any absolute assignment” suggest the transfer of rights away from the assignor to the assignee so that it is the assignee who has the entire benefit of, and can enforce the rights, not the assignor. Indeed, that is likely to be the layperson’s view as well. A purchaser of leasehold property would have no doubt that the transaction they engaged in, which the lawyers refer to as an assignment, was an absolute transfer of the rights in and to the property and the contract (the lease) from the seller to them, as purchaser and the new proud owner.

At a high level that is the conventional modern view of both a legal and equitable modern assignment. The alternative view, at least in relation to equitable assignments is that there is no assignment of the rights, rather there is a carving out of new rights for the assignee which encumber the assignor’s rights, not unlike a declaration of trust.

However, that does not mean that in order for there to be an absolute assignment the assignor must relinquish all interest or possible benefit from the asset for all time. Transactions may involve the provision of security in some circumstances and/or an ability to require a further transaction by which assets are transferred back.

The concept of an absolute assignment, be it legal or equitable, involves a transaction that is complete in the sense of not being conditional and not by way of charge. The meaning of those concepts was considered by Waksmann J in  USAF Nominee No 18 Ltd & ors v Watkin Jones & Son Ltd  [2023] EWHC 1880 (TCC).

The court heard detailed arguments and carefully analysed the previous authorities including  The Halcyon  [1984] 1 Lloyds Rep. 283 and  Bexhill v Razzaq  [2012] EWCA Civ 1376. Waksmann adopted Aikens LJ’s characterisation of the nature of an assignment in  Bexhill  at paras 44 and 45:

“The assignee becomes either the legal or beneficial owner of the thing in action and its benefits. He does not become a party to any contract or deed which contains or gives rise to the right. The assignee will only become a party to the contract (or deed) if there is a novation of the instrument containing or giving rise to the right.”

And he then went on to approve the description of an absolute assignment given by Mathew J in  Hughes v Pump House Hotel Co  [1902] 2 KB 190 as:

“… if, on consideration of the whole instrument it is clear that the intention was to give a charge only, then the action must be in the name of the assignor; while on the other hand, if it is clear from the instrument as a whole that the intention was to pass all the rights of the assignor in the debt or chose in action to the assignee, then the case will come within section 25 and the action must be brought in the name of the assignee.”

Waksmann concluded at para 196 with the following observations:

“First, it is clear that the exercise of determining whether there has been an absolute assignment or not is highly fact sensitive. Further, … it may be that on a proper analysis, Clause 2.1(c) operates as an absolute assignment in relation to some of the relevant interests and not others. Further, there may be circumstances where, within a particular class of interests purportedly assigned, some would be the subject of an absolute assignment and others would not. It all depends on the exercise of contractual interpretation in the relevant context. In other words, this is not a ‘one size fits all’ exercise.”

It follows that the question whether there has been an absolute assignment or assignments for the purpose of s 136 is a multiple layered question which involves careful interpretation of the particular contract that effects the assignment and the subject matter. If the assignment is subject to satisfaction of a condition it is not an absolute assignment and it is not in compliance with s 136.

NOTICE IN WRITING TO DEBTOR: THE CONTENT, FORM AND MEANS

As discussed above the purpose of notice to be given to the debtor is that it enables the debtor to pay a new person (the assignee) without fear of the assignor seeking to enforce the debt against them, rejecting the payment to the assignee as discharge.

Consistent with that purpose as demonstrated by the Court of Appeal in  Van Lynn  Developments Ltd v Pelias Construction Co Ltd  [1969] 1 QB 607 approving Atkin J in  Denney, Gasquert and Metcalfe v Conklin  [1913] 2 KB 177 even before the LPA 1925, no particular form of notice is required. In  Denney  Lord Denning was clear that instead what was required was simply writing that 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 to the original creditor”.

In  Van Lynn  the Court of Appeal agreed that that continued to be the case so that the notice must expressly state three things. First that there had been an assignment, second the names and addresses of the assignees and finally what was assigned. Other details were not necessary. If other details are added and are erroneous in a way that undermines the three pieces of information that are required, then the notice is not valid. The notice must fulfil the obvious aim of ensuring that the debtor knows they should pay someone other than the assignor (who in most cases will be the person with whom the debtor has had all relevant dealings). That analysis was recently relied upon in  Bedford Investments Ltd v Sellman & ors  [2021] EWHC 799 (Comm).

Bedford  is an important modern case where notice of assignment was challenged. The notice which the court concluded contained the necessary information was sent by email. The judgment does not suggest the email had a formal notice attached to an email and makes no reference to notice being sent by any other means. There was no defence based on an allegation that the email was not in fact received.

It is clear that s 196(1) of the LPA 1925 applies to notices of assignment under s 136 of that Act:

“Any notice required or authorised to be served or given by this Act shall be in writing.”

Sub-sections 196(2), (3) and (4) contain provisions deeming certain forms of delivery as sufficient service. Sub-sections (5) allows parties to contract out of those deeming provisions.

Section 196 was not addressed in  Bedford , nor did it need to be.

It is clear that an email is “writing” so whether the email was a covering email with a notice attached or the body of the email contained the information needed to give notice it would have complied with s 196(1).

Sub-sections 196(2), (3) and (4) contain deeming provisions relating only to “notices required or authorised by this Act to be served”. They do not refer to notice being given as opposed to served. However, the court have been consistent in concluding giving notice is service.

The view of most commentators as detailed by Hugh Sims KC previously in this Journal (2020) 8 JIBFL 523 is that the requirement under s 136(1) of the LPA 1925 for written notice of assignment will be satisfied by an electronic communication. That was clearly the position adopted in  Bedford .

Arnold J in  E.ON UK plc v Gilesports Ltd  [2012] EWHC 2172 (Ch); [2013] 1 P & CR 4; [2013] 3 EGLR 23 came to a view about the effect of s 196 and its deeming provisions in the context of an application for consent to assign a lease that calls the view that written notice of assignment will be satisfied by an electronic communication into question. Arnold J rejected the argument that the deeming provisions in s 196 were sufficient means of service as opposed to the required means of service. In other words, on the basis the lease expressly incorporated s 196, the judgment concluded that notice of the assignment had to be served on the landlord by one of the two methods in ss 196(3) and (4) and as neither method had been used, the relevant application had not been served. It appears from the judgment that s 196 was expressly incorporated in a clause dealing with notices without any other means of service or delivery of an application for consent being provided for.

It appears Arnold J had not referred to the earlier decision of Nicholas Strauss KC sitting as a Deputy High Court Judge  in Michael Gerson Leasing Ltd v Greatsunny Ltd  [2010] Ch 558. In  Gerson  the court took a very different view as to the effect of the deeming provisions in s 196. Strauss J concluded:

“Section 196(2) to (4) contains a series of provisions, the general import of which is to provide a liberal regime as to the contents and mode of service of any notice required or authorised by this Act to be served. It is to be noted that these provisions do not say “to be served or given”, but this makes no difference, since there is no difference, as regards a written notice, between serving and giving it. As shown by the authorities cited above, both mean putting a written notice before the party to whom the notice is to be given.  …

The purport and effect of subsection (5) is not, in my judgment, to impose a stringent requirement for writing, where this is not required by the contract or other instrument affecting property. Rather, it is to relax the requirements as to the mode of service and contents of notices, where the notices are already, by the terms of the instrument, required to be served or (which is the same thing) to be in writing.”

The E.ON approach if applied to notice under s 136 leads to a very curious situation. The need to give written notice under s 136 is a statutory requirement. The statute refers to two methods of sending the required written notice. There is no express wording providing that those two methods are the only methods or media by which notice can be sent or given. The two sub-sections are deeming provisions. They deem sufficient service to have happened so that the method of sending is deemed to have achieved delivery to the debtor, whether or not notice reaches the debtor. That means the sender can send the necessary written notice by one of those methods safe in the knowledge that, whether or not it is actually delivered to the debtor, notice will be treated as given. The E.ON approach operates to treat the debtor to whom notice was in fact given as if the required notice did not reach the debtor, because a different method of sending succeeded in delivery to the debtor. Much of the argument in favour of s 196 imposing methods of service or giving notice rest on the requirement for “writing”. The court historically understood something that was writing to be a physical item that would necessarily be delivered to the receiving party’s location by hand or by post. However, since we are now in a world where emails are accepted by the courts to be writing that logic is flawed.

In reality, until the point is taken to the Court of Appeal notice given by email for the purpose of s 136 of the LPA 1925 cannot be treated as sufficient “giving” with certainty. However, it would be surprising if the Court of Appeal came to a different conclusion faced with that question now.

With the introduction of company registered email addresses under s 29 of the Economic Crime and Corporate Transparency Act 2023 another opportunity and another risk arise. A registered email address for a company should not be mistaken for an electronic version of the company’s registered physical address. Rather it equates to the requirement for directors’ addresses to be recorded. The purpose of the registered email address for the company is to facilitate communications between Companies House and the company. It should not be assumed by third parties that communications via that address will be sufficient communication or come to the attention of the company for other purposes. However, it is always open to parties when contracting, given the required existence of that address, to expressly provide for notice to be given or served by being sent by email to that address.

DEFECTIVE NOTICES AND EQUITABLE ASSIGNMENT

Where assignor and assignee have effected a valid assignment but no valid notice has been given to the debtor, as required by s 136 of the LPA 1925, the assignment takes effect in equity as between assignor and assignee.

An equitable assignment arises where there is the intention to assign, the subject matter is described so that it can be identified, and the assignor does something showing he is transferring the debt or chose in action to the assignee. Writing is not required until the chose in action (the contract) requires it. If the chose in action is a future right rather than an existing one consideration is necessary.

When a statutory assignment fails to take effect in law simply because the requirements of s 136 were not complied with the first question should be has the assignment taken effect in equity.

Where the non-compliance is confined to the giving of notice to the debtor the answer will be that the assignment is equitable. The failure to notify the third party to the assignment, the debtor, is not a requirement for the creation of a binding assignment as between assignor and assignee.

The consequence of the failure to give valid notice to the debtor is that it is arguable that the assignee can bring a claim in its own name as assignee but it may be necessary to join the assignor. 2  The easier course is to give notice, or further notice if there is a challenge to the validity of the alleged prior notice. It is clear from decisions such as  Van Lynn , discussed above, that a demand or letter of claim sent on the basis notice has already been given can amount to notice itself.

Article by Brie Stevens-Hoare – first published by LexisNexis (JIBFL)

Brie Stevens-Hoare KC

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• Mortgage Claims by Assignee Mortgagees: Evidencing the Right to the Mortgagee’s Remedies

Mortgage Claims by Assignee Mortgagees: Evidencing the Right to the Mortgagee’s Remedies 02 September 2020

It has long been a known problem in mortgage law that s.114 of the Law of Property Act 1925, which automatically transfers the right to the mortgage debt when the mortgage is transferred by deed, does not apply to registered land. That has been clear since at least Paragon Finance Plc v Pender [2005] EWCA Civ 760 by reference to the Land Registration Act 1925. Thus, for registered land, the debt must be assigned separately . Pender, however, also makes clear that the registered proprietor of a legal charge has the right to possession, even if no right to the debt.

Despite these long-standing principles, mortgage cases brought by an assignee of the mortgage often face defences that they  are not  entitled to the relief they have sought. One solution, to produce the deed of assignment, can raise issues about redaction of non-relevant parts, when one deed transfers many mortgages.

Two recent cases discuss these issues. On procedure, the court has considered the more general question of when a party can redact parts of a document which the court is asked to construe on the basis that such parts are irrelevant. On substantive law, the courts have recently considered which documents are necessary to evidence an assignment of a debt secured by mortgage. In this paper, we consider issues of evidence in light of those cases and discuss the practical implications for practitioners, particularly in the context of mortgages.

Production of Documentary Evidence

The first part of this paper looks at redaction of documents in the context of disclosure.

Standard disclosure, under CPR 31, that is the production of documents on which a party relies or which may adversely affect or support a parties case, is an intrinsic part of the way civil ligation operates. Trials are not to be conducted by ambush thus each party must have an adequate opportunity to deal with the other side’s evidence fairly. That said, there are a number of rules of both law and procedure which can operate to prevent the production of relevant documents in a given case; litigation privilege is one obvious example. But what about the redaction of documents adduced as evidence by one party on the ground of confidentiality or irrelevance?

The practice of blanking out parts of documents is not a new one. Practitioners have routinely done so where part of the document is privileged or contains what they consider to be irrelevant material. In  GE Capital v Bankers Trust  [1995] 1 W.L.R. 172, CA, just before the introduction of the Civil Procedure Rules, Hoffmann LJ said:

“It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to be irrelevant … In my view, the test for whether on discovery part of a document can be withheld on grounds of irrelevance is simply whether that part is irrelevant. The test for whether part can be withheld on grounds of privilege is simply whether that part is privileged. There is no additional requirement that the part must deal with an entirely different subject-matter from the rest.”

Redaction within the CPR has been discussed in the more recent case of Atos Consulting v Avis Plc [2007] EWHC 323 (TCC). In that case, Ramsey J gave guidance as to the correct judicial approach to be taken where the documents disclosed by one party were redacted and another party, by application, sought to challenge the redactions, either on the ground of lack of privilege or on the ground that the redacted text was relevant. At 37 the following 5 helpful principles as to redaction were outlined:

“(1)  The Court has to consider the evidence produced on the application.

(2)  If the Court is satisfied that the right to withhold inspection of a document is established by the evidence and there are no sufficient grounds for challenging the correctness of that asserted right, the Court will uphold the right.

(3)  If the Court is not satisfied that the right to withhold inspection is established because, for instance, the evidence does not establish a legal right to withhold inspection then the Court will order inspection of the documents.

(4)  If sufficient grounds are shown for challenging the correctness of the asserted right then the Court may order further evidence to be produced on oath or, if there is no other appropriate method of properly deciding whether the right to withhold inspection should be upheld, it may decide to inspect the documents.

(5)  If it decides to inspect then having inspected the documents it may invite representations.”

There is, however, a distinction between application to redaction of the rules which apply when a party is giving disclosure of documents in the ordinary course of litigation, and the separate question of the relevance of redaction in the process of construction of a document which a court has to embark upon when considering the meaning or legal effect of a document. Since the process of construction requires the document as a whole to be considered, the starting point must always be that the entire document should be made available to the court, and any redactions to it on grounds of irrelevance should either be forbidden or, if permitted at all, convincingly justified and kept to an absolute minimum. This situation, where the redacted document needs to be construed, is the precise issue raised in the recent Court of Appeal decision of Hancock v Promontoria (Chestnut) Ltd [2020] EWCA Civ 907.

Hancock v Promontoria (Chestnut) Ltd [2020] EWCA Civ 907

In Hancock, Promontoria Chestnut sought to recover the payment of an undisputed debt of approximately £4.09 million by serving a statutory demand. The debt represented the unsecured balance due under loans originally made to Mr Hancock by Clydesdale Bank PLC. Promontoria Chestnut claimed to have acquired title to the loans by assignment, and in the Statutory Demand, Promontoria Chestnut claimed to be entitled to all of the Bank’s rights by virtue of a deed of assignment.

Proceedings were brought by Mr Hancock to set aside the statutory demand. In them, Mr Hancock sought to challenge Promontoria Chestnut’s title to the debts on the basis that the copy of the Deed of Assignment, which Promontoria Chestnut had put in evidence, had been redacted heavily. Promontoria Chestnut’s solicitor had produced a witness statement explaining the reasons for the redactions, pointing in the main to the irrelevance of the materials redacted to the issue to be determined. However, Mr Hancock argued that the redacted deed of assignment was insufficient to prove Promontoria Chestnut’s title and its corresponding status as a lawful assignee. He said that part of the redactions related to the very clauses which the court was required to construe.

Notwithstanding the arguments of principle advanced, Mr Hancock was unable to produce any credible evidence casting doubt on the title of Promontoria Chestnut to the debts. The Court highlighted the fact that this was not a case where Promontoria Chestnut was required to prove its title to sue Mr Hancock and viewed in context, the redactions to the deed of assignment faded into relative insignificance. It was held that the unredacted parts of the deed were sufficient to show that title to Mr Hancock’s debts indeed had been assigned by the Bank to Promontoria Chestnut.

However, in reaching its decision the Court of Appeal considered the scope of the law on this issue of redaction more generally and the basis on which a party to proceedings could rely on redacted documents.

When Can Redacted Documents be Relied On?

It is settled law that a written contract has to be construed as a whole, in the light of admissible evidence of the relevant background facts (or surrounding circumstances) known to both parties at or before the time when the contract was made, but excluding evidence of prior negotiations. In Wood v Capita Insurance Services Ltd [2017] UKSC 24, [2017] AC 1173, per Lord Hodge JSC (with whose judgment the other members of the Supreme Court agreed) at [10], it was said:

“The court’s task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning.”

How can such a task can be properly undertaken by the court where part of the document has been redacted so that the court does not have before it the entirety of the relevant contract? Construction of a written document is a matter of law for the court, and questions of relevance require an evaluative judgment which it is for the court, not the solicitor of one of the parties, to perform. Thus, in Hancock , Mr Hancock argued that as a matter of principle, it was no answer to an objection to production of a redacted document only to say that the redactions were certified by an experienced solicitor as being irrelevant to the question which the court has to decide.

However, Mr Hancock’s submission that the court should simply refuse to engage with the construction of the deed of assignment in its redacted form because it is not in a position to construe it as a whole went too far. There could be no such rigid rule which admitted no exceptions. For example, there can be no reasonable objection to redaction, on the grounds of irrelevance, of the details of third party loan assets and title numbers in the schedule to the deed of assignment or the personal details of signatories and/or attesting witnesses. Those details were unlikely to have any bearing on the construction of the operative clauses of the Deed, particularly, in relation to the personal details of signatories and witnesses, where there was no issue in the case concerning its due execution.

However, even in such a clear case  a clear explanation must be provided of the nature and extent of the omissions, and the reasons for making them. Where it was obvious that the provisions in question would on any reasonable view be completely irrelevant to the issue of construction, and if the reasons for taking that view can be clearly and fully articulated by a solicitor acting for the party seeking the redaction, the court will be more inclined to accept that the redaction may be defensible.

In Hancock , it was held that, in general, irrelevance alone cannot be a proper ground for redaction of part of a document which the court is asked to construe, and there must be some additional feature, such as protection of privacy or confidentiality, relied upon to justify the redaction.

Conversely, however, it is seldom, if ever, that it would be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality, where there is no irrelevance in the text redacted. Confidentiality alone cannot be a good reason for redacting an otherwise relevant provision in a contractual document which the court has to construe, and where there are other ways in which problems of that nature can be addressed, by allowing the unredacted document to be available to a ‘confidentiality ring’: the court and a limited number of the parties’ lawyers for example.

Thus, where a redacted document is to be construed, redactions, to be defensible, must be on the grounds of irrelevance and privacy, or irrelevance and confidentiality, not on one of irrelevance, privacy, or confidentiality alone.

The Emmanuel Decision

Just prior to the Court of Appeal decision in Hancock , the High Court (Marcus Smith J) had considered the issue of a redacted assignment of a mortgage in Promontoria (Oak) Limited v Nicholas Michael Emanuel and Nicola Jane Emanuel [2020] EWHC 104 (Ch) (“ Emanuel I ”) but in the different situation of the assignee mortgagee’s claim.

This case involved another company within the Promontoria group, Promontoria (Oak) Limited. Promontoria Oak brought possession proceedings against the defendants, Mr and Mrs Emanuel, owners of residential property in Cornwall charged as security for business loans to Clydesdale Bank. Promontoria sought possession and a money judgment as the assignee of the Bank, relying on a deed of assignment as evidence of the same.

Similar to the position in the Hancock case, in Emanuel, Promontoria put in evidence a significantly redacted version of the assignment, alleging that the redactions contained commercially sensitive material which had no bearing upon the existence and effectiveness of the assignment. Again as in the Hancock case, written notice of the assignment had been given to the Emanuels.

At first instance it was held that Promontoria Oak was entitled to possession of the property and a money judgment was given. The judge at first instance had made his decision with only a redacted version of the deed of assignment, plus some additional evidence, before him. This decision was appealed by the Emanuels on various grounds, including, as ground 1, that, as a matter of evidential rules, the judge had been wrong in exercising his discretion to admit the redacted version of the assignment into evidence. He could not be satisfied, as he had to be to allow the redacted version to be admitted, that the redacted passages were of confidential and irrelevant material because he could not be satisfied on the evidence that they were irrelevant.

This first ground of appeal was successful. The judge at first instance was wrong to admit the redacted assignment deed into evidence. He had failed to have regard to the implications of the evidence that was not before him, and ought to have seen the unredacted assignment. Marcus Smith J said that there was a significant probative difference between the primary evidence that was not before the court and the secondary evidence that was before the court. Even if the judge could conclude on the adduced evidence that the debt had been assigned, it did not follow that evidence not adduced, for example the redacted material, was irrelevant. The evidence not adduced could undermine the conclusion based on the adduced evidence. The judge had failed to pay proper regard to this important factor. 

This was in the context of some uncertainty in the correspondence with the Emanuels as to who, of various Promontoria entities, the assignee for this mortgage was to be. What was said in the correspondence did not sit easily with what the redacted assignment deed showed, and it was unclear that Promontoria Oak had had the mortgage assigned to it via a chain of assignments through the Promontoria entities. In saying that no other documents were needed to prove Promontoria Oaks title to commence proceedings he was simply wrong. He was thus wrong to conclude that the redacted material was irrelevant, and thus wrong to conclude that there was sufficient justification for redaction to allow the redacted assignment to be admitted into evidence. Promontoria Oak had not thus done enough to prove its claim.

What did the Court of Appeal in Hancock make of this earlier decision about redaction in Emanuel I? Since there was a pending application for permission to appeal in Emanuel I, it limited its comments. It did however make three observations.

First, it was noted that the High Court in Emanuel I had rejected grounds 2 and 3, that the redacted deed if admitted into evidence was not enough to prove Promontoria Oak’s title. Marcus Smith J concluded in Emnauel I  that the trial judge had clearly been entitled, on the redacted assignment adduced before him, to reach the conclusion that the mortgage and debt had been assigned to Promontoria Oak. Nevertheless, the appeal succeeded on ground 1, that there should have been no admission of the redacted assignment into evidence, as the trial judge’s decision to permit Promontoria Oak to rely on the redacted deed “was so flawed that it must be set aside”.

Secondly, there are significant differences between the facts in the Emanuel case and that of Hancock. Promontoria Oak had to establish its title to sue, as the claimant in Part 55 proceedings for possession and a money judgment. By contrast, Mr Hancock was seeking to set aside a statutory demand, and the burden was on him to show the existence of a substantial dispute. In addition, in Emanuel I, unlike in Hancock , there was little evidence from Promontoria Oak’s solicitors to explain the commercial background to the assignment, reasons for the redactions, and informing the court that he had inspected an unredacted version of the assignment so as to verify it’s irrelevance to the issues in dispute as there was in Hancock.

Finally, the parties to the litigation and the assignment relied upon in the two cases were of course different, though the Court of Appeal in Hancock noted that the redactions appeared to be rather similar.

In light of these key differences, the outcome of any Emmanuel I appeal is far from a forgone conclusion. Indeed the tone of the Court of Appeal’s commentary in Hancock does not suggest that those particular Justices of Appeal at least agreed with Marcus Smith J. It appears that they might happily have concluded that it was enough that the redacted assignment proved Promontoria Oak’s title. That does seem a likely more practical outcome. The Emanuels’ appeals do appear likely to be simply a delaying tactic.

Evidencing Assignment

A further aspect of the Hancock case related to the effect in law of the notice of the assignment from the Bank to Promontoria Chestnut, given to Mr Hancock. Section 136 of the Law of Property Act 1925 (“ LPA 1925 ”) provides that an absolute assignment by writing of any debt or thing in action, of which express notice in writing is given to the debtor, is effectual in law to pass and transfer the legal right to the debt, all legal and other remedies and the power to give a good discharge without the concurrence of the assignor.

Thus, in Hancock , if the deed of assignment did assign the benefit of Mr Hancock’s debts to the Bank to Promontoria Chestnut, then the giving of express written notice of that assignment to Mr Hancock would transfer the legal title to the debts, together with all remedies for them. There was no evidence in that case that the Bank had ever disputed the validity of the assignment to Promontoria Chestnut or that Mr Hancock had ever asked the Bank to confirm that it no longer had any claims against him in respect of the debts. Mr Hancock would be fully protected by section 136 if he were to make payment to Promontoria Chestnut because the effect of s.136 was to prevent the Bank making a separate claim for the debt. Because of s.136, Promontoria Chestnut could give good receipt for any payments of his debt that Mr Hancock made. In the context of his application to set aside Promontoria Chestnut’s statutory demand, Mr Hancock’s assertion that the debt was disputed on substantial grounds had a correspondingly hollow ring.

The operation of s.136 LPA 1925, and the contrast of its role in assignment of a debt to the role of registration of an assignment of a charge in passing a mortgagee’s proprietary rights, has also been given recent consideration by the High Court in yet another piece of Promontoria litigation, Promontoria (Oak) Limited v Nicholas Michael Emanuel and Nicola Jane Emanuel [2020] EWHC 563 (Ch) (“ Emanuel II ”).

In a hearing of the order to be made given the Emmanuel I decision, Promontoria Oak successfully argued that the first instance orders for possession and a money judgment should be upheld, despite its inability to rely on the redacted deed of assignment, but on the alternative ground that it had title to sue and recover possession in its capacity as registered proprietor of the legal charge granted by the Emanuels over their property.

Marcus Smith J agreed. He held that as the registered proprietor of charge on property, Promontoria Oak had title and therefore standing to claim possession. The claim based on the proprietary interest succeeded simply because of the company's registration of its assigned mortgage pursuant to the Land Registration Act 2002 (“ LRA 2002 ”). This is simply the Paragon Finance Plc v Pender [2005] EWCA Civ 760 point: the right to possession goes with registration of the legal owner of a legal charge.

What about the money claim? Under s.114 LPA 1925 a deed purporting to transfer a mortgage carries with it a right to sue for the mortgage money or any unpaid part of it. Yet s.114 does not apply to registered land. One must thus make a distinction between the remedies of an assignee of a mortgagee’s rights in its guise as registered proprietor, and reliance on the deed of assignment. Thus Promontoria Oak could not rely on the deed of assignment and s.136 LPA 1925 because there was no evidence as to the deed in evidence before the court. However it could succeed on its possession claim as registered proprietor of the charge over the Emanuels’ land.

Moreover, Marcus Smith J concluded, though without much detail in reasoning, that ‘by analogy with section 114’ and pursuant to s.51 LRA 2002, Promontoria Oak had a right to claim any outstanding debt as the holder of the proprietary interest, even though it could not rely on the deed of assignment to show assignment of the right to the debt. This appears to be a strengthening of the position. Post Paragon Finance it appeared that the debt had to be assigned separately in cases of registered land if a money claim was to succeed. Nevertheless the minimal reasoning on this issue in Emanuel II should be noted. Marcus Smith J made reference to s.51 LR 2002. However, unlike s.114 LPA 1925, s.51 LRA 2002 does not explicitly refer to the transfer of the right to sue.

This judgment in Emanuel II , however, is also subject to an outstanding application for permission to appeal. If permission is given, it will be useful to see what the Court of Appeal makes of the long vexed question of assignment of the mortgage debt and whether it is a result of registeration as legal owner of a mortgage despite the lack of application of the useful machinery of s.114 of the 1925 Act. If there is no equivalent of s.114, then the registered proprietor of a mortgage, who took as assignee of the charge, can require the debt secured, plus interest and costs, to be paid to it as a condition of redemption, since that is inherent in a mortgage. Yet that assignee may have to account to the original lender, and, subject to the decision in Emanuel II , may not be able to sue for the debt. An odd position.

Pending any such appeal, Emanuel II is a useful case outlining the law under the 2002 Act and what registration as proprietor of a charge necessarily carries with it. The result of the findings made by the court was that Promontoria Oak effectively sidestepped the issues concerning its redacted documents and achieved its aims via a different route.

The Practicalities

What evidence to adduce?

When a assignee of a mortgage is claiming possession, or the other clear proprietary remedies, sale or the appointment of a receiver, it need only plead its registered title to the charge and that is sufficient to establish its right. That has long been the case, since the decision in Paragon Finance v Pender . That is so even if its registration is a mistake, unless and until that registration is unwound by a claim for rectification of the Land Register.

What if a claim for a money judgment is sought? Though the common current practice is always to seek a money judgment with a possession claim, since the registered mortgagee is entitled to the debt, interest and costs, out of the proceeds of its sale, a money judgment might only be needed if a shortfall is feared, or clarity as to what is owed is sought before sale.

However, if a money judgment is sought, at present at least, pending any appeal of Emanuel II , registration as mortgagee it appears should suffice. By s.51 of the LRA 2002, any assignee once registered is entitled to make a claim for the debt.

When to redact?

What if an assignment of a mortgage is to be produced, for example if the mortgage is not registered, or if the Emanuel II decision is overturned? What should practice be on redaction?

Where documents are redacted it is important for the other side to be able to understand the basis for it, and for the disclosing party to provide an explanation. A witness statement ought to be produced explaining the background to the redacted document, reasons for the redactions and informing the court that the complete version had inspected so as to verify it’s irrelevance to the issues in dispute. It should be prepared in quite some detail, and redactions kept to a minimum. Thus, for example, in Hancock the redactions were said to be far more extensive than needed and the evidence provided by Promontoria Chestnut’s solicitor would have been of greater assistance to the court if he had condescended to greater detail about the specific reasons for particular redactions.

As for the redactions themselves, where part of a document is irrelevant but not confidential, then it might be simpler to disclose it in its entirety. Where the issue is one of confidentiality however, then the issue of redaction arises. If the document can be separated into distinct parts, where one is confidential and the other isn’t, it may be a straightforward process. For example, if a document attaches board minutes or a schedule of third-party transactions which are irrelevant to the litigation.

In some cases there will be real issues about the admissibility of a redacted version. In such cases, another approach will be needed, for example the use of a confidentiality ring within which the document could be made available in its unredacted form to the court and/or a limited number of lawyers on each side may offer a practical solution. Another approach might be for the parties to agree for the judge alone to see the document in its unredacted form.

Cecily Crampin

Tricia hemans.

2 September 2020

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Section 196 of the Law of Property Act 1925 requires notices under the Act to be served 'in writing'. Does 'in writing' include by email?

The Law of Property Act 1925 , s 196(1) (LPA 1925) provides that where a notice is required or authorised to be served pursuant to the Act, that notice ‘shall be in writing’.

LPA 1925, ss 196(3) and (4) go on to provide details of when a notice shall be ‘sufficiently served’. LPA 1925, s 196(3) states that any notice shall be sufficiently served if left at the last-known place of abode or business of the person to be served, or in the case of a lessee or mortgagee, is affixed or left for him on the land or

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4 King’s Bench Walk

Katherine’s family practice covers matrimonial finance, TOLATA, Schedule 1, and private law children proceedings. She has experience acting for local authorities, guardians and parents in public law children cases, including in cases involving allegations of non-accidental injuries.

Katherine also is regularly instructed in housing and property work, and due to the frequent crossover with family law has a particular interest in cases involving trusts.

Related legal acts:

• Law of Property Act 1925 (1925 c 20)

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FAQs on assignments in finance transactions

This note aims to provide brief and practical answers to common questions on the law of assignment in English law finance transactions.

1.  Are   all   notified   assignments   legal   assignments?

No, while all legal assignments must have been notified to the debtor, notice to the debtor is not enough by itself to make an assignment a legal assignment. The full requirements for a legal assignment are set out in the answer to question 2.

2.  What   are   the   requirements   for   a   legal   assignment?

A legal assignment must comply with section 136 Law of Property Act 1925 (the  LPA ) in that it is:

a. in writing and signed by the assignor;

b. expressly notified to the debtor in writing – notice can come from the assignor or the assignee;

c. not a charge;

d. of the whole of the assigned right(s) – and not of a fraction or a percentage of the assigned right(s);

e. a present assignment of existing property – rather than of future property, such as future rights to claim under an existing insurance policy or rights under a contract that has yet to be concluded;

a. of legal rights, rather than of equitable interests (such as interests under a trust); and

b. not conditional – including, because the assignee is entitled from the date the assignment is notified to the debtor to collect/receive and enjoy the assigned rights as they fall due for payment or performance.

3.  What   practical   difference   does   it   make   to   the assignee whether an assignment is a   legal   assignment,   or   a   notified   equitable   assignment?

There are two differences. The first is that an assignee suing the debtor under a legal assignment before the English courts has the right to sue the debtor in its (the assignee’s) own name and without having to join the assignor

in those proceedings as a co-claimant or as additional defendant. By contrast, in equivalent proceedings under an equitable assignment, the judge has a discretion to compel the assignee to join the assignor in those proceedings as a co-claimant or a defendant. However, this discretion is not always exercised in favour of joining the assignor.

The second practical difference is that a legal assignment is prima facie capable of being fully enforceable against the assignor as a property transaction and, as such, good against third parties, even if the assignee gave no value for its assignment. Again, by contrast, certain types of equitable assignment (e.g. assignments of future property) are not fully enforceable as property transactions that are good against third parties if the assignee gave no value for its assignment. This is because of the principle that “equity will not assist a volunteer”. Here, equity requires actual value and this requirement is not satisfied by the assignee providing purely nominal consideration, or the assignment being made in a deed.

The other main practical benefits of having a legal assignment are broadly equally available to an assignee under a notified equitable assignment for value. These benefits are:

a. once the debtor has received notice of an absolute assignment, it must pay or perform the assigned rights in favour of the assignee;

b. notice to the debtor is capable of establishing the priority of the assignment over later notified or non-notified assignments under the rule in  Dearle   v.   Hall   (discussed   in   questions   13   and   14   below) ;

c. notice to the debtor is capable of protecting the assignee from legal set-offs (a.k.a. mutual debt litigation set-offs) that the debtor has against the assigned rights from its dealing with the assignor and which arise after the debtor receives notice of assignment; and

d. notice to the debtor deprives the assignor and the debtor of their legal ability to terminate or amend the assigned rights to the detriment of the assignee.

4.  Will a security assignment be a legal   assignment if the notice to the debtor   instructs it to continue to pay or perform in   favour   of   the   assignor   pending   a   later   notice   that   an   event   of   default   has   occurred?

No, the ability of the assignor to continue to collect/receive and enjoy the assigned property pending the occurrence of a later event makes this sort of assignment conditional rather than “absolute”. Conditional assignments do not come within section 136 LPA.

5.  Our   security   document   refers   to   a   security   assignment   as   an   “absolute   assignment”.   Is   this   correct?

A security assignment can and will be absolute if:

a. it is of the whole of each assigned right, and not of a portion, fraction or percentage of any assigned right;

b. the assignment is not conditional, because the overall effect of the assignment and the notice of assignment is that the assigned rights are the assignee’s property from day-one and do not only become the assignee’s property upon the later fulfilment of a condition (such as a notice from the assignee to the debtor that an event of default has occurred);

c. (as an aspect of the assignment not being conditional under b above) neither the assignment nor the notice of assignment allows for the debtor to pay or perform the assigned rights in favour of the assignor rather than the assignee; and

d. the assignment is not conditional in some other way.

6.  Can a security assignment be re-   characterised   as   a   floating   charge   (and   does giving   notice   to   the   debtor   make   any   difference)?

Yes, a conditional security assignment, and some other security assignments, can be re- characterised as floating charges. Giving a notice of assignment to the debtor would not, by itself, prevent this re-characterisation.

More specifically, in  Re   Spectrum   Plus   Ltd   (In   Liquidation)   [2005] 2 A.C. 680, Lord Scott said that a security document would create floating security if, despite its other features, it had the third feature of a floating charge identified by Romer LJ in Re Yorkshire Woolcombers   Association  [1903] 2 Ch. 284. This third feature is:

“if   you   find   that   by   the   charge   it   is   contemplated that, until some future step is   taken   by   or   on   behalf   of   those   interested   in   the   charge,   the   company   may   carry   on   its   business   in the ordinary way as far as concerns the   particular   class   of   assets   until   some   future   step   is   taken   by   or   on   behalf   of   those   interested  in the charge, the company may carry on its   business   in   the   ordinary   way   as   far   as   concerns   the   [assigned/charged]   assets”.

Applying this statement, where a security assignment allows the debtor to continue to collect or receive, and use and enjoy, the assigned property for its own purposes (rather than exclusively for the discharge of the secured obligations) that security assignment may be re-characterised as a floating charge.

If such an assignment were notified to the debtor, this would not prevent the assignment from being a floating charge, unless the notice had the effect of depriving the assignor of use of the assigned property on and from the assignment. In practice, such notices often instead provide for the debtor to continue to pay or perform the assigned rights in favour of the assignor pending a later notice from the assignee. This would be a notified security assignment, but liable to re-characterisation as a floating charge.

Alternatively, a security assignment might not be notified to the debtor, but provide that the assignor must remit all proceeds of all assigned rights to the assignee for those proceeds to be applied by the assignee exclusively to pay off the secured obligations. If the parties abide by this arrangement, this would be a non-notified security assignment, but it would not be a floating charge.

Even if a security assignment is drafted as an absolute, notified assignment it could still be liable to be re-characterised as a floating charge if, in practice, the assignee too readily and frequently releases some of the assigned rights or their proceeds from its security at the assignor’s request.

Finally, re-characterisation of an assignment as a floating charge will rarely be significant outside UK insolvency proceedings.

7.  Does   the   Assignment   Agreement   scheduled   to the LMA’s recommended form facilities   agreements (the LMA Assignment   Agreement) create a legal or equitable   assignment?

Where a lender uses an LMA Assignment Agreement to dispose of its entire participation in a loan facility documented on LMA terms, the assignment is capable of being a legal assignment that meets the criteria set out under question 2.

Subject to the proviso below, where a lender uses an LMA Assignment Agreement to dispose of part of its participation in a loan facility documented on LMA terms, the resulting assignment will technically be an equitable assignment. This is because an assignment of part of a contractual right is not absolute under section 136 LPA.

The proviso is:

a. partly because of the rule in  Dearle   v.   Hall  (discussed in questions 13 and 14);

b. partly because of the way the LMA facility agreements are drafted; and

c. partly because the incoming lender’s rights to collect or sue for payment direct from the obligors under the facility agreement do not just derive from the property law effects of its Assignment Agreement, but also derive from all relevant parties having agreed to the same contractual framework under the facility agreement and the incoming lender assuming obligations under that facility agreement, there will almost always be zero practical difference between the effects of a partial equitable assignment, and an entire legal assignment, under an LMA Assignment Agreement. In particular, the priority of the assignment, whom the debtor (or obligor) is obliged to pay and the ability of the assignee, as an incoming lender, individually to bring legal proceedings under the Assignment Agreement against an obligor without having to join the assignor in those proceedings, should almost always be the same under either assignment.

8.  Can   an   electronic   assignment   of   receivables   or other contractual rights effected via a   dedicated   online   platform   comply   with  the section 136 LPA requirements for an   assignment   to   be   in   writing,   signed   by   the   assignor   and   notified   to   the   debtor   in   writing?

In principle, yes. However, compliance with section 136 would depend in practice on how a particular electronic assignment were digitally documented, executed and notified in each case on the platform.

9.  Can   an   assignment   of   future   receivables   be   an   outright   or   true   sale   assignment?

Yes. An assignment of receivables that do not exist at the time of the assignment will always be an equitable assignment under English law. However, whether an assignment of receivables expressed as an outright sale is re-characterised as a secured loan does not depend on whether the sale is a legal assignment of existing receivables or an equitable assignment of future receivables. (Assignments of future receivables are not possible under the laws of some states.)

10.  If contractual rights cannot be assigned   without the counterparty’s consent, can   consent be requested and obtained in the   notice   of   assignment   and   acknowledgement   exchanged   with   the   counterparty?

No, if the assignment is to take effect as a property transaction that transfers title to the assigned rights to the debtor, it must do so when the assignment becomes effective.

An assignment in breach of a prohibition on assignment, or of a personal right, to which (in either case) the counterparty has not consented, is usually void against the debtor (unless the judge finds the failed assignment takes effect as a trust). This voidness means that the assignment does not transfer the assigned rights to the assignee, or oblige the debtor to deal with the assignee in respect of those rights. On general principle, it is very unlikely that this voidness can be cured at a later stage by obtaining the counterparty’s retrospective consent to assignment.

However, where the counterparty has given its consent before the assignment takes place, we would usually record in the counterparty’s acknowledgement of the notice of assignment that the counterparty had given that consent before the assignment took place.

11.  Will an   assignment   in   breach   of a   prohibition   on assignment contained in the contract   generating the assigned rights always take   effect   as   a   trust?

No, an English court will not automatically interpret such an assignment as instead taking effect as a trust – particularly where there is no express, specific mention of a trust in the assignment. This is one reason why well-drafted security assignments tend expressly to provide that where an assignment is ineffective because of a prohibition on assignment, the assignment will take effect as a trust in favour of the secured party.

12.  Does   a   notice   of   assignment   to   the   debtor   prevent the debtor from asserting post-   notice set-off rights it had against the   assignor   against   the   assignee   instead?

No, notice of an assignment to the debtor only prevents the debtor from invoking one category of post-notice set-off that the debtor has against the assignor against the assignee. This type of set-off is known as legal or statutory set-off, or (more descriptively) mutual debt litigation set-off.

Broadly, a mutual debt litigation set-off may arise when:

a. the assignor and the debtor each have a debt claim against each other that is mutual;

b. these debt claims arose before any notice of the assignment mentioned below;

c. the assignor assigns its debt claim to the assignee;

d. the assignee then sues the debtor for payment of the assigned debt;

e. the debtor asserts a set-off against the assignee in the same action on the basis of the debtor’s debt claim against the assignor

f. both debt claims are due for payment at the start of the litigation and immediately before judgment; and

g. both debt claims succeed at the end of the litigation.

In this situation, the judge has a discretion to give the assignee a single net judgment for its debt claim, less the amount of the debtor’s debt claim. Importantly, the judge has this discretion to set off the two claims even though there may be no connection between the two debt claims.

Among the post-notice set-offs  not  cut-off by notice to the debtor are:

a. contractual set-offs arising by agreement between the assignor and the debtor (for example, arising under a credit note issued by the assignor to the debtor as compensation for a previous breach of contract by the assignor);

b. equitable set-offs that are so closely connected to the assigned right that it would be manifestly unjust to allow enforcement of the assigned right without taking into account the debtor’s set-off; and

c. abatement rights that reduce the amount of the price payable under the assigned right under section 53(1)(b) of the Sale of Goods Act 1979, or at common law.

13.  What is the rule in Dearle v. Hall on the   priority of assignments and does this rule   determine the   priority of   both legal   and   equitable   assignments?

The rule in Dearle v. Hall is that the priority of multiple assignments of the same right follows the order in which the debtor under the assigned right receives notice of those assignments.

Under this rule, subject to exceptions, an earlier notified assignment will have priority over later-notified assignments and non- notified assignments, regardless of when each assignment was created.

Yes, the rule in  Dearle   v.   Hall  determines the priority of both legal and equitable assignments. For example, under the rule, an equitable assignment taken a week after a legal assignment can have priority over that earlier legal assignment as long as the equitable assignment is notified to the debtor before notice of assignment is given under the legal assignment.

14.  Are there any exceptions   to the rule in   Dearle  v.   Hall?

Yes, the rule in  Dearle   v.   Hall  does not enable the assignee under an earlier notified assignment to gain priority:

a. over an earlier created, but later notified or non-notified assignment, if the assignee under the earlier notified assignment did not give value for its assignment;

b. over an earlier created, but later notified or non-notified assignment, if the assignee under the earlier notified assignment had actual or constructive notice of the earlier created assignment when it took its own assignment or gave value for that assignment;

c. over a prior trust over the assigned rights; or

d. over a prior created but later notified assignment, where the assignee who first gave notice is a trustee in bankruptcy or a judgment creditor.

15.  Following   the   Mailbox   case,   should   security   assignments of construction and project   documents   now   be   avoided?

In  Mailbox   (Birmingham)   Limited   v.   Galliford   Try   Construction   Limited   [2017] EWHC 67, a contractor argued that a developer should not be able to sue it under a building contract between them because the developer had assigned its rights under the building contract to a security trustee under a debenture.

Although the contractor lost the case, it did so on the basis that the security trustee had validly assigned the contractual rights back to the developer before it made the claim. On the face of it, this might suggest that developers and project companies should avoid granting security assignments over rights that they may wish to enforce themselves at a later point, and instead only agree to grant a charge over such rights. Our experience is that some law firms are now advising their borrower clients to this effect on real estate development finance and project finance transactions.

However, in  Mailbox:

a. the debenture required the security assignment to be notified to the contractor immediately following the assignment; and

b. both the debenture and the notice made clear that the security trustee became the party entitled to exercise all the assigned rights immediately on and from delivery of the notice (see paragraph 26 of the judgment).

Where such a notice has been given, it is not surprising that the counterparty would object to the assignor subsequently exercising those rights.

This is not how most security assignments of construction and project documents, nor the notices deliverable under them, are drafted. Some do not even require the assignment to be notified to the counterparty pre-default. Where they do require notice to be given immediately following the assignment, that notice usually expressly provides that the assignor may continue to exercise the rights under the assigned contract until the security holder gives notice to the counterparty that the security has become enforceable. In our view, provided a security assignment and notice are drafted on this basis, the assignment would not prevent the assignor from enforcing any rights under the contract before the security holder has given notice to the counterparty that the security has become enforceable.

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Legal and Equitable Assignments; Validity of Notice of Assignment

Readers will be aware that it is very rare for a reported case in the higher courts dealing with invoice finance to emerge, so we were interested to see a report of a recent case in another area of financial services which raised squarely 2 legal concepts which are fundamental to invoice financiers:

• the difference between the legal assignment and equitable assignment of a debt; and
• whether notice of assignment requires the debtor to receive a copy of the instrument of assignment.

Legal and equitable assignment

In Frischmann v Vaxeal Holdings SA [2023] EWHC 2698 , the court was concerned with a challenge to the assignment of rights under two loan agreements and a guarantee. The first point considered by the court related to the requirements for a legal assignment as set out in section 136 of the Law of Property Act 1925 (“LPA”).

Section 136 of the LPA provides:

“ (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—

          (a)  the legal right to such debt or thing in action;

          (b)  all legal and other remedies for the same; and

(c)  the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)  that the assignment is disputed by the assignor or any person claiming under him; or

          (b)  of any other opposing or conflicting claims to such debt or thing in action;

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act 1925”.

The defendants contended, among other things, that the assignment here was ineffective and void because it was not in writing under the hand of (signed by) the assignor, as required by section 136 of the LPA. The assignment had been signed on behalf of the assignor by an attorney acting under a power of attorney.

The court found that there was not a valid legal assignment because of the particular provisions of the Powers of Attorney Act 1971, and held that because an effective assignment under section 136 must be in writing and under the hand of the assignor, an assignment signed by the assignor’s attorney did not satisfy this requirement. The court did not accept that the wording of the Powers of Attorney Act 1971 should be treated as rewriting the LPA without express reference to the earlier statute.

Although the court found that there was not a valid legal assignment, the court went on to find that the assignment took effect as an equitable assignment, relying on the case of Technocrats International Ltd v Fredic Ltd (No. 1) [2004] EWHC 692 (QB) [57], in which Field J explained that for there to be an effective equitable assignment:

“ all that is needed is some transaction that sufficiently manifests an intention by the owner of an identified [debt] to assign it to another”.

Validity of notice of assignment

An equitable assignment does not require notice to the debtor, but the judge went on to deal with this issue in case it would later be found by a court on appeal that he was wrong about the finding that the assignment did not qualify as a legal assignment, and he gave short shrift to this argument:

“The defendants’ next line of defence is that although they [in] the Re-Amended Defence that they “admit receipt of a letter purporting to give notice of the alleged assignment; nevertheless, [they] cannot plead to whether or not they were given notice of “the Assignment” as no assignment was enclosed with the letter of 18 June 2020 and [they] are not aware if any assignment was in fact executed…

There is no legal requirement that an obligor is to be provided with a copy of the Assignment itself. I conclude that the letter of 18 June 2020 would have amounted to a good notice had section 136 been complied with and was a good notice of the equitable assignment which I have concluded is what had taken place”.

Although this case does not establish any new principle of law, it is a useful example of the court taking a sensible view of what can sometimes be highly technical legal doctrines relating to assignment and the requirements for notice of assignment.

These issues are highly relevant to invoice financiers:

Equitable assignments can be informal

Any assignment in which the intention of the parties is clear has long been recognised as a valid equitable assignment: there need be no writing, and no notice to the debtor, but the effect of an absolute transfer of ownership of a debt is the same.

There is therefore very little practical difference between legal and equitable assignments: in practice a technical rule requiring Court proceedings to enforce equitable assignments to be brought by both the Financier and the Client is almost universally ignored with no adverse consequences.

Effect of Notice on the Debtor

Receipt of notice of assignment by the debtor has the following important legal consequences:

• it prevents discharge of the debt by subsequent payment to the Client;
• it prevents future changes in the terms of the contract of sale being enforceable against the Financier; and

(3) it fixes the rights of the parties in relation to some aspects of set-off.

Here the court sensibly rejected the debtor’s argument that merely being told about the fact of assignment did not equate to notice, and that it was incumbent upon the assignee to provide a copy of the document or instrument effecting the assignment.

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Notice of Assignment

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Lack of Notice of Assignment?! Help!!!

hereshoping12345   The issue I am having with them at the moment is I do not believe that they sent me a notice of assignment. I know it is a requirement under s36 LPA. I have sent them multiple letters and they have most recently responded by resending a copy of the CCA, default notice and a income/expenditure sheet.  I have drafted a letter back reiterating my request and stating that they urgently clarify about the notice of assignment. 

fatbelly said: hereshoping12345   The issue I am having with them at the moment is I do not believe that they sent me a notice of assignment. I know it is a requirement under s36 LPA. I have sent them multiple letters and they have most recently responded by resending a copy of the CCA, default notice and a income/expenditure sheet.  I have drafted a letter back reiterating my request and stating that they urgently clarify about the notice of assignment. 

as soon as reasonably possible; or

if, after the assignment, the arrangements for servicing the  credit  under the agreement do not change as far as the  customer  is concerned, on or before the first occasion they do.

[Note: section 82A of  CCA ]

Some freemen of the land types are of the belief it renders the debt unenforceable, but in reality that is not the case as the legislation they are relying on dates back to the law of property act 1925, and has nothing to do with the consumer credit act which is the act the debt would be concerned with.

1) Where rights of a lender under a regulated credit agreement are assigned to a firm, that firm must arrange for notice of the assignment to be given to the customer: (a) as soon as reasonably possible; 

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• Russia, Ukraine and Belarus

Minimum notice of cancellation - Moscow consulate

By leeski October 18, 2013 in Russia, Ukraine and Belarus

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11 posts in this topic

Recommended posts, leeski   0.

Hi everybody, my fiancee will have her interview this Tuesday at 8:00 am in Moscow for a K-1. Unfortunately, the financial documents I sent to her, e.g. I-134, have yet to arrive by post. We're both worried that they won't come in time. My question is, what is the minimum notice required before canceling and subsequently rescheduling the interview? Is it like a hotel, in that typically you must give 24 hours notice? I've emailed the consulate directly twice, and despite being perfectly specific and clear, they have not answered my question. Ideally I'd like to wait as long as possible before cancelling, in the hope that the documents will arrive in time. But I do not want to wait too long, and find out that we passed the point of no return, and can not cancel the interview because the point of cancellation has passed.

If anyone has any experience or knowledge about this, we would both be eternally grateful.

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Share on other sites, gabbybird   53.

How did you send the documents to Russia? If VIA express DHL, I would expect no more than 2-3 days from USA to her door step. If you are relying on the standard postal service, there is no way to know, maybe a month for document delivery? The Russian postal is uncomfortably inefficient and slow.

2012-11-20: Married in USA! CR-1 Visa (9 Months, 16 Days) 2013-01-21: I-130 Packet Sent 2013-01-29: NOA1 2013-03-25: NOA2 2013-07-08: NVC Case Number Generated 2013-08-21: Medical exam in Moscow 2013-09-17: Expedite request accepted by NVC . Packet forwarded to Moscow embassy. 2013-09-26: Embassy contacted Rita to schedule her interview. Scheduled for 2013-09-30! 2013-09-30: Interview in Moscow - APPROVED!! 2013-10-10: P.O.E. JFK Int'l 2013-11-06: CR-1 Green card in hand! Removal of Conditions (10 Months, 28 Days) 2015-08-11: i-751 Packet Sent 2015-08-13: NOA Receipt 2015-09-10: Biometrics 2016-06-30: Online Status Changed: New Card Is Being Produced 2016-07-05: i-797 NOA Received 2016-07-09: IR-1 Green card in hand!  

Naturalization (6 Months, 29 Days)

2016-10-19: N-400 Filing Date

2016-10-24: N-400 NOA

2016-11-15: Biometrics

2017-04-10: Interview Letter NOA Received

2017-05-18: Interview & Oath

Priority Mail Express International from USPS. Was quoted at 3-5 business days. Mailed it on the 12th of October.

Do you know about if it's possible to cancel an interview within 24 hours of its scheduled time?

Neonred   3,510

I would not cancel the interview. I would send scanned copies by e-mail and bring those to the interview. They might or might not accept them but she will not be denied. They will probably not make a final decision until your fiancee produces the originals.

edited to add NEVER use USPS for any documents that are needed in a short time. They only give a time estimate to Russia. After they make it that far it is in the hands of the Russian post, and no one knows how long it could take after that.

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jft   12

Priority Mail Express International from USPS. Was quoted at 3-5 business days. Mailed it on the 12th of October. Do you know about if it's possible to cancel an interview within 24 hours of its scheduled time?

USPS quotes 3-5 days but I've read elsewhere on the forums to expect 3-4 weeks instead. I'd re-do the paperwork and send it FedEx or DHL instead. This will of course require rescheduling the interview which you should be able to do via the USAtraveldocs customer service phone number.

southernman   29

I would not cancel the interview. I would send scanned copies by e-mail and bring those to the interview. They might or might not accept them but she will not be denied. They will probably not make a final decision until your fiancee produces the originals. edited to add NEVER use USPS for any documents that are needed in a short time. They only give a time estimate to Russia. After they make it that far it is in the hands of the Russian post, and no one knows how long it could take after that. Good luck.

I agree with neon. Don't cancel the interview. Just scan them and send to her to print. More than likely they won't even ask for the supporting documents. They didn't in my wifes case and I have read the same from others. Go ahead and mail them after scanning just in case though.

OUR K-1 JOURNEYMET ONLINE 2011MET IN BELARUS 2012SHE SAID YES!! 2012NOA1 06/22/2012WENT TO GREECE TOGETHER 08/01/2012VISITED HER IN BELARUS 11/07/2012NOA2 VIA EMAIL 12/05/2012EMBASSY INTERVIEW 02/13/2013VISA ISSUED 02/14/2013ARRIVED IN THE U.S. 02/26/2013MARRIED 03/16/2013AOS,EAD,AP FIled 04/02/2013NOA1 04/10/2013Biometrics completed 05/07/2013EAD card sent for production 06/13/2013EAD/AP card arrived in mail. 06/21/2013AOS approved 10/21/2013Green card arrived via mail 10/31/2013Removal of conditions mailed 08/04/2015 10 year card approved 06/08/2016 <p>

Yes. In our case my wife had troubles getting original police certificates from Germany and arrived at the interview with just faxed copies which were accepted without issue.

I appreciate everyone's response, but my main question remains unanswered. Are you aware of a minimum cancellation notice? I know that we CAN cancel and reschedule, but must we give 24 hours notice? Or maybe more?

baron555   934

Don't cancel the worst is she'll be given a 221g and you can produce those documents later and then be granted the visa.

This happens and the Embassy understands.

Phil (Lockport, near Chicago) and Alla (Lobnya, near Moscow)

As of Dec 7, 2009, now Zero miles apart (literally)!

Don't cancel the worst is she'll be given a 221g and you can produce those documents later and then be granted the visa. This happens and the Embassy understands.

Right, and it will NOT require another trip to the embassy. They can be mailed in.

But to answer the question I don't think there is a set policy for notice of cancellation. Some people have just not shown up and then rescheduled. It's not like they set aside a special time for you. A whole group enters and you take a number and wait. If you are not there then you will not be missed. But, if you decide to rescedule I would e-mail and give them a heads up anyway.

jmana   2

If you sent it priority express and not just priority, and there isn't anything in the package concerning customs, then I don't see why it would take more than a week for the documents to get there. The postal service there is flaky, but usually it's customs that holds everything up, and if you filled out the customs form stating that it was just paperwork in the package then I'd think it wouldn't even have to be inspected by them.

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