Marlin and Remus

[B3rty]

There are some interesting scenarios here

You had a loan agreement which was covered by the CCA this was defaulted then transferred to your current account which was closed on the same day. I expect if you check your credit file it will also show it was defaulted on the same day as well.

OK....I bet you haven't had a default notice for the current account?....so this is something you could query.

The POC states an agreement under the CCA but we know this was cleared by an unauthorised transfer from your current account, if you could get something from HSBC to show this that would be useful...I would be inclined to write to phone HSBC customer services and ask about the loan account, explain that due to personal problems you have lost records and could they confirm the status of the account.....this should show it was cleared and closed,if you could get this in writing it would make a great defence.

One other aspect..what was the interest rate on the loan, and on the unauthorised overdraft?...marlin are charging you interest which is included in the POC but on what basis...the loan or the account....

So you have a few options...I would favour trying to get a letter from HSBC confirming the loan account is clear as at such and such date and use this as a defence....Look at my post #16 to see our circumstances are not dissimilar......I got the letters out of HSBC and sent copies to Marlin who backed right off

[remus]

Thanks for your reply,

There are some interesting scenarios here

 

You had a loan agreement which was covered by the CCA this was defaulted then transferred to your current account which was closed on the same day. I expect if you check your credit file it will also show it was defaulted on the same day as well. I have received my pin today, so I will be checking dates and amounts online.

 

OK....I bet you haven't had a default notice for the current account?....so this is something you could query. I'll be beggered if I can find any default letters (not like me). Have done a cpr to Phoenix, so they should produce ALL the docs.

 

The POC states an agreement under the CCA but we know this was cleared by an unauthorised transfer from your current account, if you could get something from HSBC to show this that would be useful...I would be inclined to write to phone HSBC customer services and ask about the loan account, explain that due to personal problems you have lost records and could they confirm the status of the account.....this should show it was cleared and closed,if you could get this in writing it would make a great defence. Yep, I followed advice and asked HSBC for records for that time period to date as I needed to get my accounts in order:roll: and today I have received statement showing early closure of loan in may.

 

One other aspect..what was the interest rate on the loan, and on the unauthorised overdraft?...marlin are charging you interest which is included in the POC but on what basis...the loan or the account.... good point, as far as Marlin are concerned its a loan as confirmed by the gentleman on the phone.

 

So you have a few options...I would favour trying to get a letter from HSBC confirming the loan account is clear as at such and such date and use this as a defence....Look at my post #16 to see our circumstances are not dissimilar......I got the letters out of HSBC and sent copies to Marlin who backed right off Understand where you are coming from but I'm rather annoyed that they are doing this on bulk and a lot of people are going to get ccj's by default and then possible charging orders where Phoenix will get even more money than the orginal debt, no doubt they have worked it out that they will profit by bringing all these cases to court even with the fees..

[B3rty]

Your last point sums up Phoenix/Marlins business plan

 

They purchase cheap debt--Litigate --Turn into secure full value debt they can sell on at a profit...

 

Every now and then someone defends and they lose out but I bet the ones that dont make it a very profitable exercise for them.

[remus]

Hi all,

have just checked my credit report from experian to find default date and amount and the only HSBC entry is for a loan settled in 2005, which I beleive is when I refinanced the loan that is now in Phoenix/Marlins hands.

I am confused:confused:

All my other financial dealings are on the report, where has it gone?

Any thoughts what I can do now, I'm thinking that my defence should be the vague POC, and marlin have done their usual with my request re cpr in that they beleive I want an sar:rolleyes:

[remus]

Hi all,

Defence

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.
   
2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -
   
3. The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;


1. The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.
   
2. A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.
   
3. A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

[*]Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet

[*]Further to the case, on 04/04/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a list of charges applied to the account.

[*]To Date the claimant has ignored my request under the CPR, which was received and signed for by the claimant on 10/04/2008 and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested

[*]The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to assess if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. 
   

2. [*]The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 7 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127(3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

   [*]Notwithstanding points 7 and 8, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

   [*]The claimant is therefore put to strict proof that such a compliant document exists

   [*]It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

   [*]Notwithstanding point 11, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

   [*]Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

   [*]Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

   [*]In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

   [*]Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

   17. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced before 6th April 2007 the Consumer Credit Act 1974 is the relevant act in this case.

    

    

    

   Statement of Truth

    

   I, believe the above statement to be true and factual

   Just checking my on line claim and I'm not sure which way of entering my defence is best, should I enter my defence on line or use the paper form?

    

   I have borrowed this from pblackie:) I will of course change the date for my cpr.

   
   
3. Number of repayments;
   
4. Amount of repayments;
   
5. Frequency and timing of repayments;
   
6. Dates of repayments;
   
7. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

[rory32]

Personally I would use the paper form. Your defence may actually be too long for MCOL.

[remus]

Thanks rory, I had heard that there was a limted amount of space on mcol.

Will post it tomorrow, copy to phoenix.

[remus]

Hi all, bit delayed, but defence with copy to phoenix sent today.

 

Have just checked my credit report, and my HSBC loan and credit card which was not there on the 3rd, have appeared under Marlin both as 8 .

 

Can they do this? has it any bearing on my defence or litigation, is there anything I should be doing?

 

Any help gratefully received:)

[remus]

Hi, has anyone any thoughts on my post 58?

[car2403]

Hi all, bit delayed, but defence with copy to phoenix sent today.

 

Have just checked my credit report, and my HSBC loan and credit card which was not there on the 3rd, have appeared under Marlin both as 8 .

 

Can they do this? has it any bearing on my defence or litigation, is there anything I should be doing?

 

Any help gratefully received:)

 

They can do what they want until you reel them in through the Court, unfortunately.

 

If your disputing the account, you should consider using the Surleybond's letter NOW to withdraw consent to process under s.10/s.12 DPA, as they can't provide an agreement with consent to process and consent can be withdrawn even if they can.

 

The issues are;

• Enforceable agreement (make sure you read my Barclays Default thread, as one of the accounts is a current account and this doesn't necessarily need an enforceable agreement due to a determination by the OFT - more on my thread)
  
• Ability to enforce (does the DCA have the right to sue)
  
• Assignment (is it legal/equitable and is it lawful)
  
• Correct amounts on the claim form
  
• Unlawful penalty charges
  
• Unlawful Default/Termination
  
• Breach of DPA by processing/sharing data without consent or permission
  

You can't deal with any of this until they've fully disclosed their case against you.

[Having_A_Knightmare]

Car

 

Where is Surebonds letter

 

HAk

[remus]

Hi car2403,

will send surlybonds letters to Marlin as the default is under their name.

 

I have no record of HSBC defaulting me, so no record of settlement on my credit report. I am rather confused about this, and wonder if HSBC have not followed the full process.

 

On my credit report, Marlin have put my current balance as £900 more than they are claiming, and about £1400 more than was owed when it was 'assigned' to them, (interest?), will Phoenix have to produce and verify these amounts via the cpr?

If phoenix back down, am I able to carry on with my counter claim, or will I have to start a claim against them for adding fantasy amounts:p

 

Northampton have acknowledged receiving my defence.

 

Which body should I write to about Phoenix, and the appalling way they are using the courts to apply ccj's to people, who are unaware of their rights, and increasing the debt by obscene amounts?

 

MoneyMail springs to mind:D

[remus]

Car

 

Where is Surebonds letter

 

HAk

 

In cars signature;)

[remus]

Hi All,

Things have been quite for a while, I have had no response to my cpr, in fact nothing from anyone until today, when I received my N152, it has been transferred to my local court and I must complete the AQ on or before 17 July.

I am away from the 15th, so will have to read up on the Marlin/Phoenix threads this weekend to see my way forward and get the AQ sorted.

I have already been to my local court to defend a ccj, if I knew then what I know now;)

[blackmanfamily]

Hi

my other half is at same stage as you are recieved our AQ letter today to determine which track, look on my thread and you will see where we stand, are going to ask the court to order claimant to produce or seek strikeout

 

they are naughty the games they play

[Guest shaff]

Hey there,

I'm in the same boat, HSBC sold my Credit Card account to Marlin,

HSBC are quite good over the phone but im so angry as they are sending me incomplete Credit card statements which im trying to claim charges from.

I CCAd Marlin 3months ago, they stayed quite and just yeaterday they sent me a letter 'Urgent, you need to ring us NOW'. I sent them another letter stating that they need to comply with the CCA and stop ringing me!

 

Good Luck!

[remus]

Hi Shaff,

Yes HSBC are good over the phone, but they promise you things they can't deliver.

And well done for not ringing them.

My local court have by its own initiative extended the time for filling in the AQ, anyone know why they might have done this?

Could it be to sort it out before going to court?

Should I contact Marlin/Phoenix again re the cpr, which they responded with a request of £10 for an sar?

Or as they are avoiding sending me the information I need to see exactly what they are taking me to court for, should I just leave it and use this as part of my defence?

Any thoughts anyone.

[remus]

Hi all, have received a letter from Mortimer Clarke, with statements from my current account and stating that it is the current account that the claim refers to.

Current account was in overdraft but the amount they are claiming includes my loan., which shows on the statement as coming out and going in on the same day, plus the O/D being credited and giving a nil balance.

As I asked for a cpr, they are telling me that the current account is not covered by this and as such, do I wish to proceed with my defence in its current form.

My defence was the vague and embarresing, I don't see that they have given any information to change that.

I have an AQ to do by september, the court obviously want us to sort this out ourselves as they by their own initiative extended the date.

Reading 111523 thread HSBC has done exdactly the same with his accounts.

Please has anyone any ideas as to my next step?, what I should put on the AQ?, and what my response to MC should be?

[remus]

hi all, I want to include on my AQ removal of the default that marlin have applied to an account in dispute, as they have now confirmed that it is the current account and I started action to reclaim charges in april 2007 (with interest HSBC will owe me money!).

 

Should I reply to MC sols that my defense stands and they will need to produce all the docs in court as I still don't know what interest they are claiming and also the increase in the debt amount and that I will also be adding to the AQ re default, to show the court that I am being reasonable?

 

Any ideas please.

[remus]

bump

[remus]

bump

[car2403]

hi all, I want to include on my AQ removal of the default that marlin have applied to an account in dispute, as they have now confirmed that it is the current account and I started action to reclaim charges in april 2007 (with interest HSBC will owe me money!).

 

Should I reply to MC sols that my defense stands and they will need to produce all the docs in court as I still don't know what interest they are claiming and also the increase in the debt amount and that I will also be adding to the AQ re default, to show the court that I am being reasonable?

 

Any ideas please.

 

Not sure I understand? Default removal would be part of your case, not part of your AQ - the AQ is designed to give the Court information to allocate it to track effectively, it isn't the place to be requesting anything, unless it's in the form of a draft order for directions.

 

The draft directions should request full disclosure, including proving the debt/interest applied to it.

[remus]

Thank you for replying car,

as you can see I am confused, so should I be requesting directions on the AQ for full disclosure?

Should I respond to Mortimers? and what should I include on the AQ re post 68.

any help gratefully received.

[remus]

Hi All, Can you tell me what CPR 3.3(4) covers? (OK I have looked it up, and it is the Courts own initiative without either party being present).

 

Claim is struck out as being an abuse of process:p:D

 

Their POC and a letter sent to me and copy to the court being totally inconsistent:eek:

 

 

What do I need to do now?

What implication has it on my 'relationship' with Marlin/Phoenix etc etc and how should I go forward?

Not forgetting Marlin have defaulted me on this account and I have a stayed claim for charges with HSBC started in april 2007, (same court and I did mention it on the AQ:rolleyes:).

 

Can't wipe the smile from my face!:D

Edited September 13, 2008 by remus
add

[B3rty]

Great news.....Marlin have a habit of mucking up their processes I think because they are only really geared up to deal with un-contested claims...

Would be interested to know what the inconsistences were?