Marlin DCA & CCJ help please :(

[nicklea]

Hi bernie,

 

I was just looking at all the coduments that pt2537 posted up for you.

 

Can I ask about the first one - who did it actually come from? Who's signature was on the bottom? Sorry, I don't mean the name of the person, but which company.

 

For a notice of assignment to be effective it must be given under the hand of (ie signed by) the assignor. So for this notice to be effective it must have been signed by both British Credit Trust and Marlin Capital Europe as it refers to two separate assignments.

 

Also, for it to be effective it must have been sent to you by either personal service or by a registered postal service (eg recorded delivery or special delivery).

 

If the assignment is not effective then MCE portfolio cannot take you to court in their own name, they must also include British Credit Trust as a co-claimant

[berniebobs]

Hi nicklea

 

Thanks for your response. Would you tell me which letter you refer to? Do you mean the 'notice of assignment' letter dated 21st feb?

 

Its not signed, all its says is.... 'yours faithfully, Marlin Financial Services. For and on behalf of the 2nd Assignor'

 

Ive had nothing by recorded delivery or by hand in this case.

[nicklea]

That's actually great news!

 

Even leaving aside the fact that it hasn't been served properly (by recorded delivery etc) it means that the assignment isn't effective and they have to have British Credit Trust as a co-claimant on the claim form.

 

Can you just confirm that BCT isn't mentioned as the claimant but just refered to in the Particulars of Claim.

 

OK, so what this means is that the debt has never effectively been assigned from BCT to Marlin Capital as you never received notice of this signed by BCT.

 

Since BCT never assigned it to Marlin Capital then Marlin Capital can't assign it to MCE Portfolio as they don't have the right to do that so MCE are stuffed.

 

This is in addition to any of the other points that pt2537 made.

 

Sorry I don't know where you are with your case, do you need to put a defence in soon?

[berniebobs]

Hi Nicklea,

 

Thanks again so much! Could I just let you know that with this legal stuff, im a bit thick, so please excuse any moments where the penny doesnt drop with me!

 

BCT are only named in the POC. Its MCE who are the claimants, let me try and post the claim form up for you...

[berniebobs]

this is the cc form

 

[berniebobs]

I dont really know where I am with all this case, the latest info I have is in link #149, where it says on their letter I have 14 days to send in my defence and then the letter from the court today with, 'it is ordered that time for filling in the allocation questionaire by the claimant be extended to 4pm on 16th june 2008'.

[nicklea]

I read the defence that you posted in post55 and it's one of paul's. It's the one that is done before they send any documents and says that you will amend it when you get the documents - which you have now got.

 

If no one does before, I will have a stab at updating the defence tomorrow afternoon. What you will then need to do is send this amended defence into the court with a covering letter saying that it's an amended defence.

 

Sometimes you can just send in a letter, but sometimes they can be a bit strict and make you do it with a special form and charge you £75 (you don't have to pay this if you're on benefits or low pay)

 

They have done quite a lot of things wrong so it will be no problem getting it kicked out this time. However, they do have all the prescribed terms on the agreement and if they were to do everything properly first then they could come back at a later point and take you to court again. But how likely that is - who knows?

[berniebobs]

Thanks Nicklea, your help is so greatly appreciated.

 

Paul was a little confused about the item in links #146 - 147 where he said he thought there were two different terms and conditions, would that be right?

 

If they came back assuming it got kicked out, what would you expect to happen? - Im just looking for an idea of what could happen if they came back with a better case.

[nicklea]

Hi bernie,

 

Have a read of this and see what you think.

 

To asnwer your question, if they did everything properly then I believe that yes they would get a ccj against you:-

 

In the xxxxxxx County Court

Claim number 7XXXXXXXX

Between

MCE Portfolio Ltd - Claimant

and

 

XXXXX - Defendant

 

 

Amended Defence

 

 

 

 

1.This amended defence is submitted following the disclosure of information to me by the Claimant that is vital to my defence. It replaces in it’s entirety my original defence dated xx/xx/2008

 

2.Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the claimant to strict proof thereof pursuant to Civil Procedure Rules (“CPR”) Part 16.5(1)(b).

 

3.The Claimant’s Particulars of Claim 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. The Particulars of Claim 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 account number relating to the account, the method the claimant calculated any outstanding sums due or any other matters necessary to substantiate the claimant’s claim.

 

Request Pursuant to Section 77 Consumer Credit Act 1974

4.On 28th February 2008 I sent to the claimant by recorded delivery a request under the Consumer Credit Act 1974 (“CCA”) section 77(1) for a true copy of the executed Credit Agreement. This was received by the claimant and signed for as such on 29th February 2008.

 

5.For clarity, s77(1) states:-

 

77. Duty to give information to debtor under fixed-sum credit agreement.

— (1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

6.S77(4) of the CCA sets out the consequences of failure to comply with such a request and states:-

 

(4) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence

7.The Claimant failed to respond to this request and it is averred that the claimant has failed to discharge their obligations under s77(1) of the CCA and as a result has no right of action, by way of s77(4) of the CCA, to enforce this agreement while their non compliance continues.

8.In addition, on 5th March 2008 I requested the disclosure of information from the Claimant’s solicitors which is vital to my defence and counterclaim in this case pursuant to CPR Part 18 Practice Direction. The information requested amounted to copies of the Credit Agreement, Default Notice and Notice of Assignment referred to in the Particulars of Claim, information regarding any instance where my personal or financial information has been communicated to third parties and a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the creditor. I contend that the information requested is reasonably necessary and proportionate to enable me to understand the case that has to be met and to prepare a counterclaim against the Claimant as per CPR Part 18 Practice Direction. The Claimant has only disclosed some of the information requested in a letter dated 23rd May 2008.

 

9.The agreement entered into between myself and the original creditor, British Credit Trust (“BCT”), was a restricted use debtor-creditor-supplier credit agreement as defined by s11(1)(b) and s12(b) CCA. It is denied that the agreement was a Hire Purchase Agreement.

10.The documents disclosed to me by the Claimant’s solicitors following my CPR 18 request contain a copy of the signed agreement. This is headed “Credit Agreement Regulated by the Consumer Credit Act 1974”. This makes it clear that it cannot be a Hire Purchase agreement as the Consumer Credit (Agreements) Regulations 1983 Schedule 1 prescribes that such agreements must be headed “Hire-Purchase Agreement Regulated by the Consumer Credit Act 1974”.

11.The documents disclosed to me also contained terms and conditions that it is alleged are referred to in the signed Agreement. These terms and conditions clearly state that they refer to a Hire-Purchase Agreement not a Credit Agreement. Also, on reading the actual terms it is clear that they are indeed relevant to a Hire-Purchase Agreement and not a Credit Agreement.

12.I submit that these terms clearly are not the terms of the agreement that I signed. As further evidence of this I refer to the Default Notice that was also disclosed to me. This also refers to the type of agreement as being a Loan agreement and not a Hire-Purchase Agreement. It also refers to the provision of the Agreement that was breached as being Clause 2.b.(i) which clearly does not exist in the terms disclosed to me.

13.I re-emphasise the wording of s77(1):-

14.77. Duty to give information to debtor under fixed-sum credit agreement.

— (1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

15.I submit that, should the Claimant attempt to claim that they have complied with s77(1) CCA by providing these documents then they have, in fact, still failed to meet their obligations under s77(1) as the terms provided are clearly not from the agreement that I signed and so are barred from enforcing the agreement by way of s77(4).

Assignment of the Debt

16.A copy of a Notice of Assignment that it is alleged was sent to me was disclosed by the Claimant’s solicitors. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts.

17.Section 196(4) of The Law of Property Act 1925 prescribes the requirements for giving sufficient notice by post:-

196. Regulations respecting notices.

4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery)

18.For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me pursuant to s196(4) before action is commenced. It is denied that any notice of assignment was sufficiently served on me and so the Claimant has no right of action.

19.Notwithstanding the above, for a Notice of Assignment to be effective, explicit notice of assignment must be given by writing under the hand of the assignor (s136(1) Law of Property Act 1925). I note that the alleged Notice of Assignment refers to two separate assignments and was given under the hand of the Assignee in the case of the first assignment.

20.I submit that as a result of this the Notice of Assignment with regard to the first assignment is invalid as it has not been given under the hand of the original Assignor (referred to in the document as “1st Assignor”) BCT. As a result, the first assignment is ineffective and the Claimant has no right of action.

21.Further, or alternatively, I submit that the second assignment is also ineffective. If the first assignment was effective (which is denied) and this document had of been sufficiently served on me (which is also denied) then the earliest that I could have received it would have been 22nd February 2008 as the document is dated 21st February 2008. As a result, the first assignment, between BCT and Marlin could not have been effective until that date at the earliest.

22.If the first assignment could not have been effective until 22/2/2008 then the second assignment which is purported to have occurred on 18th January 2008 was ineffective. The reason for this is that on the alleged date that the second assignment took place Marlin did not legally possess those rights that it was purporting to assign to the Claimant. The Claimant therefore has no right of action.

23.Further, as the second assignment is ineffective, the Notice of Assignment that was allegedly sent must also be ineffective as it describes an assignment that, on a proper construction, never took place as Marlin did not possess those rights on the date of the second alleged assignment.

Summary

24.I aver that the Claimant has failed to meet it’s obligations under s77(1) CCA and is barred from enforcing the agreement until it does so.

25.I further aver that the Claimant has no standing before the court as assignments of the alleged debt that the Claimant relies on are ineffective.

26.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.

 

27.Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

Statement of Truth

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Signed …………………

 

Date

[berniebobs]

Good god Nicklea! This must have taken you ages! Thanks so very much!!!

 

Thanks for your advice re: them doing it properley, it helps to know where I stand with this. Do I send a copy to the court and one to marlin?

[berniebobs]

Hi Nicklea

 

Could I just ask, as I dont know legal terms etc...

 

25.I further aver that the Claimant has no standing before the court as assignments of the alleged debt that the Claimant relies on are ineffective.

Is the underlined word correct? Thanks. Bernie.

[nicklea]

hi bernie,

 

send the copy to the court with a covering letter saying that you are requesting permission to amend your defence. You should really wait until the court have confirmed you can do that before sending it to MCE.

 

Yes the word is correct - it means to formally assert as a fact

 

see here for example:-

 

aver: Definition, Synonyms and Much More from Answers.com

[berniebobs]

Thanks Nicklea! Told you I was dim when its legal stuff.

 

I will send it recorded on Monday. Once again, thanks so much.

[berniebobs]

Hi Nicklea

 

Ive sent the paperwork to the court, so we will wait and see.

[nicklea]

Good luck - not that you'll need it.

 

If anything happens that you're not sure about or you just want to check that you're doing the right thing then just post here again

[berniebobs]

thanks again so much for all your help.

[mcuth]

Subbing, as I have a very very very similar situation going on over here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/137898-mce-portfolio.html

 

Cheers

Michael

[berniebobs]

Hi Guys

 

I sent the 'change of defence request' to the court, recorded, which they received. In the letter I asked them to reply to my request, which they didnt, so I assume it was accepted?

 

The latest is this letter attached. Could anyone be kind enough to advise please as Im certainly out of my depth now. Help!!!

 

[steven4064]

This hearing is to decide various things about the case, one of which will be your request to change your defence I suspect. Also any other aplications that have been made.

 

It may also give you a chance to ask for any documents that the other side haven't yet produced, etc.

 

It will also deal wit hallocation, if that is not done already

 

Look at CPR part 26 and practice directions CPR - Parts and Practice Directions

[berniebobs]

Thanks Steven, as always I find this really puzzling! I will read the link you sent me - thanks. Im just worried about going in there and just not knowing what Im doing.

[berniebobs]

Hi Steven & friends

 

Ive read the link . What can I expect when I go? Im getting really stressed up about this as I dont know what I supposed to say or do. Help! Help! Help!

[steven4064]

The hearing is to decide several things:

 

1. you application to change your defence - so be clear why you want to change it, have alist of the main issues written down so you can refer to them and answer questions

 

2. which track to allocate the case to - again be clear why you wnat small claims - low value, it's a simple case with no point sof law just points of fact, you are a litigant in person

 

3. any directions to be given - if you put some with your AQ, take a copy with you and be prepared to say why you want those directions given. If you have asked for infromation, say why you want it - for example you have not been able to produce a satisfactory defence without it, or whatever.

 

4. possibly to seek a compromise - be clear as to what you are prepared to accept and why. (this may not happen but be prepared in case it does)

 

Have stuff written down on all these points. Take the original things you wrote- defence, application, draft directions and some notes along the lines of what I have put above.

 

Don't 'wing it'. Remeber, luck favours the prepared.

 

All the best

[berniebobs]

Thanks Steven, thats made it clear for me, so I Know what to do. Would there be representation from Marlin there?

[steven4064]

Would there be representation from Marlin there?

They would be foolish not to attend, but then...

[berniebobs]

Hi Team

 

A quick question please as Im in court tomorrow. In link #149 where the sheet is headed: '8. certificate of value'

 

The deed has been signed by a representative of BCT - acting by two directors. Does this mean that they have fully signed it over to Marlin/MCE? Please look at Nickleas post #153

 

'Since BCT never assigned it to Marlin Capital then Marlin Capital can't assign it to MCE Portfolio as they don't have the right to do that so MCE are stuffed.'

Help needed please as I need to know for my defence