DLC/Aplins Claim Form - Old Citi card 'debt' default judgement now want CO too!! **CASE DISMISSED VIA NO CCA**

[Grad98]

After getting into one big financial mess

I entered into a debt management plan with CCCS earlier this year.

 

 

One of my creditors is (originaly Citi finanical) passed onto DLC.

 

 

I got notification that my offer of payment was not accepted,

they were taking legal action,

with the view to try and get the court to secure the debt (approx £5k) on my home etc etc.

 

 

When the court papers arrived,

I contacted CCCS who told me to complete the admission form with my budget sheet etc and provide the offer of payment.

I did this, returned the paperwork to Asplins (DLCs legal) and heard no more.

 

 

Upon finding the debt section on this site (always in hindsight!) I found out about CCCA'ing them.

 

 

I wrote to ask them for a copy of my agreememnt with the £1 cheque

but of course I never received a reply.

 

 

Presumably beacause my response to the court action was an admission.

This was all back in July.

 

 

I get home today and there is a "Judgement for Claimant after determination from the court ordering me to pay back the £5k in full or face bailiff action or enforcement proceedings.

 

 

I am shocked and quite worried as I was not expecting this.

I thought the courts fairly worked out how much you could repay and made judgement on that.

What to do now - any advice- I'm so worried.

[Ell-enn]

Did you keep a copy of the budget sheet and admission form you sent to Alpins Sols and did you send it recorded delivery.

 

 

I'm sure you should have sent this to the court where the claim was issued.

 

 

Sounds as if Aplins didn't forward your papers to the court and went for a judgment in default.

DLC are renowned for enforcing a judgment by way of a Charging order on your property.

 

 

If the court had received your budget sheet they would almost certainly have made an order for payment by installments.

Whatever, you need to ask for a variation on this order as your offer has either not been received at court or not taken into account (I suspect the former).

 

If you visit Her Majesty's Courts Service - Home you can downloan Form N245 which is the form to vary an judgment order, you can take it to the court or send it by post (recorded delivery) - you will have to pay a fee of £35.00.

 

If you need any help filling in the form, please ask.

[rory32]

As Ell-enn has stated it looks like the solicitors didn't bother giving your budget sheet to the court. Ideally you should always send a copy of such things to the court.

 

As it's Citi I assume there are plenty of charges on the account that you can claim back.

[Grad98]

Thanks for your advice. I feel so stupid.

I didn't keep a copy of the budget form I sent to Aplins, nor did I send it recorded delivery.

 

 

I remember checking the forms quite carefully and I'm sure it said my admission form was to be sent back to the claimant (Aplins).

 

 

I will get on to it straight away with form N245 and let you know how I get on.

And yes Rory32... I have loads of charges with Citi which I will need to tackle!

[Ell-enn]

Don't forget to ask if you need any help with the N245 form.

 

Ell-enn

[Tawnyowl]

exactly the same thing has just happened to me MNBA account passed to DLC passed to APLINS

sent to court

sent cccs sheet

not passed to court

Judgement for claimant

all to be paid in one.

 

 

Phoned court told to send copy to them and to solicitors

.I am sure the lady at the court said the original case was all done electronically easy to leave out cccs sheet or convenient.

 

 

If they go for a charge on the house you must object i am going to find out how hard this is to do.

Why should a unsecured debt become a secured one.

[Grad98]

hi guys,

 

Although form N245 was sent back to the courts along with a cover letter of explanation,

today I arrived home from work to the dreaded letter from DLC saying they are applying for a charging order on my home to the order of £5k plus costs.

 

 

There is a date for the hearing of 19th November.

Is there anything I can do??

I really really dont want this.

 

 

Also, I am suspecting that my letter to the courts

(although sent recorded delivery) has been held up by the post but does that even make a difference now.

 

 

Any advice appreciated.

Tawnyowl, have there been any updates in your case?

 

I should add that I CCA'd Hillesden securities AFTER I sent back the court admission form (aint hindsight wonderful).

And it was on the basis of CCCS's advice that i admitted the debt in the first place.

 

 

I CCA'd them 31st July, first response from Hillesden was dated 15th August stating that they are awaiting the original agreement from Citi,

 

 

a further letter dated 21st Sept said they are still awaiting the original agreement from Citi and the account is on hold and all action suspended.

 

 

I received the judgement for claimant (after determination) from the courts on 18 September 2007 and I received the letter from DLC and the interim charging order today dated 10th October.

 

 

Can I write to the courts and DLC with a copy of the letter from Hillesden stating the account is on hold?

 

 

Please help - I feel ill with worry.

[Goldlady]

Hillesden and DLC are the same company, not that they would let you know that. I can't help thinking that there must be a way of getting the judgement set aside on the basis that you were mistaken when you admitted the full debt. After all you firstly want to counterclaim for charges and secondly you need time to consider the agreement you are waiting for as they may not have the right to pursue the debt.

 

I am not at all sure if you can actually do this:confused:. Hopefully someone else will come along with more brain cells than me.

[Ell-enn]

Hi there, this must be really distressing for you. Hillsden / DLC are a nightmare! The following is taken from hm courts service website - it is written for the creditor rather than the debtor - but it confirms that you can object in writing and ask for the case to be heard at your local court.

What will happen if the judgment debtor objects to the making of a final charging order?

 

If the judgment debtor (or anyone else who has been served with the interim charging order), wishes to object to the making of a final order that person must file written evidence and serve a copy on you not less than 7 days before the hearing.

You should note that the judgment debtor can make an application for the hearing to take place at another court nearer to his home or place of business.

What will happen at the hearing at which the judge considers whether or not to make a final charging order?

 

The judge will consider your application and any evidence the judgment debtor or any other person served with your application has filed. If objections have been raised, the judge can deal with them there and then, or give directions for a hearing later on. Directions tell you what you must do to prepare for that hearing. If the judge feels that the objections are justified, your application may be dismissed. If that happens you may not be able to recover the fee you paid to issue the application, and you may have to pay the costs of the party who raised the objections.

 

So you are right in thinking you should file your evidence with the court and copy to DLC (send everything by recorded or special delivery). After all Alpins did not forward your budget sheet and offer of payment and the N245 form has obviously not got to the court in time - what date did you send it and have you checked on the Royal Mail website if it has been signed for? Whatever you send to the court and DLC -keep photocopies and postal receipts - you will need them later.

 

Try not to worry too much, you will get plenty of support and advice from the people on this site. There is a long way to go till 19th November and you need to try and think positively and not have too many sleepless nights.

 

If you have any further questions (and you will!) - just ask.

 

Kind Regards

 

Ell-enn

If I have been of help please feel free to tip my scales.

[Grad98]

Thanks so much for your advice.

 

 

what I need to do is write a letter of objection and give as many reasons as possible why the charging order should not be granted.

 

 

One question though,

can I use the letter from Hillesden dated 21st Sept stating that my case would be put on hold until my CCA was obtained,

 

 

even though I received a forthwith judgement from the courts dated 18th Sept as a strong argument or is it invalid because essentially I admitted the debt when I sent back the courts admission form N1?

 

 

Could people give me tips on any further arguments I can use to object?

[Tawnyowl]

Hello Grad 98

 

Feels terrible at times- latest on my case with Mbna-DLC. I sent a letter

recorded to the court asking them to look at case again and sent copies of cccs forms and budget sheet due to them not being passed to court first time.Got a feeling i am going down same path as you and will probably find letter for charging order on house shortly.Am going to ring court Monday to see if there are any developments.Did not know DLC and MNBA are same company- what a surprise.Seems like DLC like to get these charging orders.Feeling very down at moment.Good luck with your case we must keep going.Thankyou everybody for advice and help.

[Tawnyowl]

Grad- did you come up with some objections to present-perhaps you have got some other debts higher than this who have not gone for charging orders- so why should they get one.Perhaps the original loan was taken out with a high %rate than normal to take into consideration the risk involved with unsecured loans so why should they get a charging order.I hope you have had some advice and help from people on this site .I wish you well for your forthcoming case. Tawnyowl.

[Grad98]

Thanks for the tips TawnyOwl.

This is the objection letter i have drafted so far,

I am yet to incoporate your points.

 

 

However, given that the debt was a credit card debt (not a loan),

do you think I can still use the point that it would have a higher percentage rate than a secured loan and thus the risk has been taken into consideration?

 

please let me know what you think and if you have any suggestions or more points I can incorporate.

 

Dear Sir Madam,

 

I write with reference to the above mentioned claim, forthwith judgement and interim charging order.

 

This letter is to object to the application of a final charging order. My reasons are set out forthwith:

 

1) The Claimant was kept constantly updated as to the Defendants’ financial situation and included in the debt management plan (DMP) which began in April 2007.

 

 

Despite rejecting the offer of payment under and thus opting out of the DMP, payments have continued to be made to the Claimant under the DMP.

 

 

If you refer to appendix [ ], you will see a list of the Defendents other creditors, [ ] in total.

All of whom have been included and accepted the DMP.

 

 

I also highlight that several of these creditors have debts larger than that of the Claimant and have not only accepted the DMP payment arrangments, but also frozen interest.

 

 

On this basis I believe that if the Charging order is granted in favour of the Claimant, the Claimant has an unfair priority over the other unsecured creditors.

 

2) The Claimant wishes to make an unsecured debt, a secured debt.

As seen in appendix [ ], the Claimant has, and offers a range of secured debt products.

 

 

If they want the debt with the Defendant to be secured (as they are now currently pursuing with a charging order), then a secured product should have been offered in the first place.

 

 

The Defendant points out that the other unsecured creditors will therefore be disadvantaged by a charging order being made.

 

3) The level of equity in the property is in the region of £40,000.

 

 

The level of debt the Claimant wishes to secure is not realistic to the level of equity and thus the Defendant believes a charging order would be unfair.

 

4) The Claimant was asked by the Defendant on the 31st July to provide copies of the Credit Agreement over the unsecured debt. On 15th August (appendix ) the Claimant replied acknowledging this letter. On the 21st September, the Claimant wrote again (appendix ) and stated.

 

“Your account is on hold and all further action has been suspended in anticipation of receiving the documents required”.

 

The Defendant hereby points out that the said documentation have still not been provided and requests the Court holds the Claimant to the conditions set out in their letter.

 

5) The Defendents payment arrangement with all other creditors is in place in the form of a DMP and has been succesfully ongoing since April 2007.

 

 

A charging order is not fairest on everyone as it would favour the Claimant over all other creditors and its impact would disrupt the payment arrangement currently in place and may cause a snowballing negative effect as other creditors may attempt to follow suit.

 

6) If the Interim order has not been sent to the Defendents other creditors, any other creditor who may want to object to the final charging order will not know about the hearing and be in a disadvantaged position.

 

 

On this basis, the Claimant will be unduly prejudiced if such a charging order is granted.

 

7) On receipt of the Forthwith Judgement, the Defendant sent to the Court the N245. The Defendant requests that the N245 be heard before the Charging order is heard

 

8) The Defendant requests that the court enforces the debt in the manner of an Instalment Order.

The Defendant also higlights that my financial situation is likely to improve over time and thus just because the offer of payment may seem currently low, that is not to say it will not increase over time.

 

 

The Defendant is also keen to pay my creditors in the fastest and fairest way possible.

 

9) The Defendant respectfully requests that the above points are taken into account and the Charging Order is not applied.

 

Yours faithfully

[Tawnyowl]

What a fantastic letter.

-I do not think you can do any better than that.

 

 

In fact i will save for possible reference in the future.

The points are very clear and any judge must take these into consideration

 

 

.After thinking about your situation this morning i could only think why should a unsecured loan become secured on a house due to the extra interest usually charged on a unsecured loan surely risk has allready been taken into consideration.

 

 

However i hope somebody with more knowledge than me will advise if this is worth putting in letter.

 

 

The one allready written seems perfect to me

 

 

.I hope for a positive outcome for you.

The case is not very far off so put some music on and have a glass or two-

debts are not the end of the world

- and we must put our cases forward.

 

 

You seem to be acting very fairly.

 

 

Will keep a close eye on this thread.Tawnyowl

[Goldlady]

I think you need to extend (4) to stress the fact that they don't (yet) even have a valid CCA, which actually makes the debt unenforceable. Hopefully tomterm or rory32 will come along - if they don't i suggest PMing them. I can understand you not wanting to be 'arsy' when they are after a charging order but I do think it needs to be made as clear as possible.

[tomterm8]

Hi, Grad, I'll have a look in on the thread tomorrow (unfortunatly, it's a bit late for me). It seems you were really stitched up by CCCS & the creditor....

 

Have you issued an application for a variation of the original Judgement?

 

were any charges included in the Judgement?

 

I've got to admit, generally it is very hard to get a Charging Order turned down by a DJ once a judgement is issued. Frankly, the only method i've ever had success with is getting the judgement overturned ; if the grounds aren't there to overturn a charging order, they seem to be almost always granted by the DJ.

 

There are defences you can use against a charging order, and it seems you are pretty aware of what they are from your letter;) i just wonder if we can get the judgement set aside.

[Grad98]

Hi Tomterm8,

Yes I applied for a varaition of the judgement, which is why in my objection letter,

I have asked for the N245 hearing to be heard before the charging order is heard (in fact I have now made it point 1 on my objection letter! And yes, there are charges in my judgement, which have now taken it to about £5.2k -

so now if they get the CO, they can also get interest on it.

Its so depressing.

 

 

I have heard that these CO's are getting more and more common, so despite all the I have done, the likelihood that is that it will still be granted.

 

 

I need to get my objection letter off today as the hearing date is the 19th Nov, but it sounds like I should assume the worst and start looking next into 1)having the original judgement overturned and 2) SAR'ing them and chasing all my charges on the account.

Any advice on the first pointa?

 

Another thing - before i get the objection letter off.

 

 

As Goldlady suggested, Is it worth me including the fact there is no CCA and thus debt is unenforcable

(and if so, what is the law behind this)

or is that irrelevenat as i admitted the debt?

Thanks!

[Goldlady]

Grad, I presume it is the CO hearing that is on the 19th. I would request a postponement on the grounds that you are applying to have the judgement set aside. If the set aside were to fail you have given it a go and you won't be in any worse position! I don't know a great deal about how all this works - wait for an expert - but do know that you would need to go to the court on the 19th or they will just do what they want!!

[tomterm8]

Hi Tomterm8,

Yes I applied for a varaition of the judgement, which is why in my objection letter, I have asked for the N245 hearing to be heard before the charging order is heard (in fact I have now made it point 1 on my objection letter!

 

cool. can you post up your set aside application?

 

And yes, there are charges in my judgement, which have now taken it to about £5.2k - so now if they get the CO, they can also get interest on it. Its so depressing. I have heard that these CO's are getting more and more common, so despite all the I have done, the likelihood that is that it will still be granted. I need to get my objection letter off today as the hearing date is the 19th Nov,

 

Incidentally, the response letter should be in the form of a statement of truth, or affidafit in support.

but it sounds like I should assume the worst and start looking next into 1)having the original judgement overturned and 2) S.A.R - (Subject Access Request)'ing them and chasing all my charges on the account. Any advice on the first pointa?

 

Basically, my approach would be to reclaim the charges. There are guides on the forum which you can use. Presumably this is the basis for your set aside application?

 

Another thing - before i get the objection letter off. As Goldlady suggested, Is it worth me including the fact there is no CCA and thus debt is unenforcable (and if so, what is the law behind this) or is that irrelevenat as i admitted the debt? Thanks!

 

Yes, it gives you leverage in a further enforcement hearing.

[Grad98]

Is the set aside application the same as the N245 (variation of order)? Unfortunatly I didnt mention anything about charges at that stage as all I wanted to get done was the judgement amended so i pay them the amount i can afford under the DMP.

Anyway, along with the budget sheet, this was the cover letter i sent to the courts with the N245.

 

"For the attention of the Court Manager,

 

 

I write in connection with the above mentioned claim from Claimant Hillesden Sec Ltd.

 

I got into serious financial difficulties over the last two years with my working hours being reduced (and thus a lower income) after taking out a substatntial loan to fund a further education course with the hope this would assist my career and be able to obtain well paid employment.

When I got into such difficulties, I kept my creditors informed as to my situation at all time and continued to make payments of what I could afford.

When I realised the situation was getting out of control I sought advice from the National Debt Line and went into a DMP with CCCS.

Once advised of my DMP, all my other creditors accepted the arrangement except for Citifinancial who rejected the offerof payment. Despite this since June 2007, I have continued to make consistent payments of the offered amount to Citifinancial.

 

Upon receiving the claim form from Aplins on behalf of Hillesden Sec (citifinancial), once again, my current situation was explained, a income/expenditure form was attached and offer of payment was made and continued to be paid. It seems Aplins did not deem it necessary to advise Barnet Court of these actions.

 

Furthermore, I have been advised by CCCS that Citifinancial is viewed as a priority debt and the amount offered will not be lowered regardless of (a downward) change in income.

 

On this basis I request that the court vary the judgement order for me continue with the offer of payment. "

 

Re- reading it, I hope i havent put my foot in it with the courts. Oh well, no point crying over spilt milk, its how i fight it from now thats important.

 

Could someone please let me know the time limits on CCA's for which the debt becomes unenforcable and when they have committed an offence if they havent provided the CCA (and the relevant statute to refer to) please. I know i admitted the debt when i received the court papers on the advise of CCA, however, I still have a letter from Hillesden saying no further action will be aken and account is on hold until CCA has been produced (it still hasnt) so I wish to take the advise of goldlady and tomterm8 and expand on that point a bit more in my objection letter. (lucky i hadnt sent it off yet! Will hand deliver it to court tomorrow)

 

Thanks for your advise everyone

[Goldlady]

Hi Grad, I hope Tomterm will be along but in the meantime - the failure to provide a CCA letter states the following:

 

Request for true copy of Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974

 

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

As I got that from this site and I don't have time to read the whole of CCA74 I hope someone else can pinpoint which sections identify the time limits. If not, I would just go with the s77 and 78 part - probably not a good idea to use the 'criminal offence' bit in a civil court anyway.

 

After all, they have failed to provide you with a copy of the agreement before the hearing.

 

Hope I have helped - a bit:)

[sequenci]

A Variation is not the same as a set aside. A Variation is an application to alter the rate of repayment, IMO you *may* find it difficult to achieve this unless you can offer a decent amount per month - still then the court may still allow the whole amount to be payable forthwith to allow the creditor to get that interim charging order applied for.

 

A Set aside would take things back to pre-CCJ stage. If you have grounds to apply such as unlawful charges etc then you should really consider getting the n244 filled in. It should be known that a set aside application costs £75 so you need to ensure you have very good grounds if you decide to take this route otherwise it might be a wasted exercise and cost your more in the long run.

[Grad98]

I already completed an admission form on the advice of CCCS the hearing for the CO is a week on Monday so bearing this in mind at this late stage, would I have time to withdraw the N245 variation order and apply for the N244 set aside application? If not, if the CO is applied, can I apply for a set aside application afterwards?

[Grad98]

Just bumping this up.

The question is, if a CO is applied, can I apply for a set aside application afterwards?

[Tawnyowl]

Any further developments. Good luck tommorow. Will be there in spirit. It is tom your hearing or is it 26th.Dont think you can do much more.Dont let the xxxxxxxx get you down.At least the season of goodwill is coming so who knows the judge is going to be in a good mood -surely.All the best Tawnyowl