RBS/Mint Final Charging Order Help Needed

[pussycatdoll]

In december 2007 and Feb 2008 Mint issued default notices.

 

Eventually they CCJ'd me on 24 Oct.

 

Because I didnt put in any defence there wasnt an agreed payment plan

 

They contacted me by letter on 13 Nov and enclosed a financial statement to be returned which was completed and sent with a cheque for £35.

 

The cheque was returned and I received an Interim Charging order dated 5th Nov.

 

I rang Green & Co (Mints Solicitors) and asked why they had issued the interim charging order they said because I hadnt paid. I then asked them whether I should defend the claim in my Local court and they said no, it was a formality.

 

Having discovered this wonderful forum now I have since CCA'd mint and surprise, surprise, they immediately came back with an enforceable agreement.

 

What if anything can i do to rectify this situation? Help please.

[pussycatdoll]

I have now gone through my paperwork and found the original default notice which I think is probably unenforceable

 

The letter is dated 24th December 2007 and the payment was due on 7th January.

 

It is unlikely that their mail would have been collected on xmas eve or the 25th or 26th Dec. and it is also quite likely that I wouldnt have received it until the 2nd or 3rd January 2008 in effect only givimng me 3-4 days to raise funds.

 

Your guidance on this would be greatly appreciated.

[ncf355]

You are quite correct

 

No matter how they try and swing it, a DN sent on the 24th December cannot have an action date of 7th January

 

The Default notice is invalid and you should apply for a set aside on this basis

 

Hopefullly someone with more knowledge than me can help - try posting a link to this thread on the main consumer credit agreements thread

 

HERE

[ncf355]

Just to add

 

The 14 days given must be CLEAR days

 

That is, not including the day the DN was received OR the day upon which they require action

 

By my calcs, the earliest they can claim you received the DN would be 31st December (and thats being VERY generous and allowing 1st class post) so your "action" date should be 15th January.

 

 

Can you scan the DN (removing all personal info) and post it up here?

[pussycatdoll]

Well would you believe it I have found a second default notice from Mint dated February 2008 allowing me 17 days to respond.

 

Surely they cant default me twice fro the same debt and surely the only default notice that can stand is the first one using an argument I have seen I think by x20.

 

So therefore by his reasoning I will only owe the arrears on the acount as listed on the first notice as the second default was already on a terminated account.

 

Am i reading this correctly?

 

The only downside I can see to this is that I paid £200 to Mint on the 7th January which is the day AFTER default had to be paid and was not the amount asked for in the original default notice - it was less than half the required payment.

 

Thanks

 

PCD

Edited March 19, 2009 by pussycatdoll

[pussycatdoll]

Just read through the POC and it states that they have used the original default notice dated 24/12/2007 but have put the termination date as the 24th March.

 

After the second default - can anybody make any sense of that?

[pussycatdoll]

bump

[pussycatdoll]

bump

[slick132]

Hi PCD,

 

Lookin in as requested........

 

Is this a credit card account.

 

Did you defend your case at all before the CCJ was made against you.

 

Can you post up the Agreement which you say is enforceable, and the 2 DN's.

 

Are there any late payment or over limit charges included in the amount they claimed at court.

Edited March 25, 2009 by slick132

[pussycatdoll]

Hi Slick,

 

It is a credit card account that was undefended.

 

CCA

mintcca picture by pussycatdoll_01 - Photobucket

 

POC

http://i558.photobucket.com/albums/ss25/pussycatdoll_01/mintpoc.gif

 

Default1

http://i558.photobucket.com/albums/ss25/pussycatdoll_01/mintdefault1.gif

 

Default2

http://i558.photobucket.com/albums/ss25/pussycatdoll_01/mintdefault2.gif

[pussycatdoll]

Are there any late payment or over limit charges included in the amount they claimed at court.

 

I think there must be as they werent paid for about a year.

[ukaviator]

Looking through your posts Pussycatdoll, you have to get a set aside due to unlawful charges added to the account. To have your judgement set aside you will need to put forward a reason why. You must keep your reason as clear and simple as possible.

 

If the judgment is set aside, things go back to the start of the claim. You have another chance to reply to the Claim Form, and explain your situation. The CCJ is taken off the County Court Register until a new judgment is made.

 

You need to ask the court for a general application form called an N244. You should fill in the N244 to include the information the court asks for. There is a fee of £35. Meanwhile you need to add up all of the charges going back 6 years and get a figure ready for a defence. Do you already have all of your statements? If not then you will need these for proof and a counterclaim for the charges. You may need to send an S.A.R.(Subject Access Request) for the data they hold on you. There is a letter in the library for you to copy over.

 

If the judgment is set aside by the court, this means that the proceedings go back to the claim stage and any enforcement action is also cancelled. You have a new opportunity to fill in the reply to the claim form, make an offer of payment or put in any defence or counterclaim.

 

Having a judgment set aside does not wipe out the proceedings altogether but the details will be removed from the Register of Judgments, Orders and Fines until a new judgment is made.

[pussycatdoll]

UKAviator

 

Looking through your posts Pussycatdoll, you have to get a set aside due to unlawful charges added to the account. To have your judgement set aside you will need to put forward a reason why. You must keep your reason as clear and simple as possible.

 

I have taken your advice onboard and will send off a SAR today as this will definitely reinforce my case. However, and I am not sure about this, I would have thought that I should be able to get a set aside based on the initial default not allowing enough time to comply and that they have used this default in their POC.

[slick132]

I think if you apply for the set-aside on the basis of unlawful penalty charges AND the DN(s), you will have a better case.

 

Better to have the 2 points to contend as the court may not be impressed that you fail to defend at all when the case was heard.

 

Do you not have recent statements to show if penalty charges were made to the a/c.

 

Also, see what you can find to back up your contentions about the DN's.

Edited March 27, 2009 by slick132
typo

[pussycatdoll]

Do you not have recent statements to show if penalty charges were made to the a/c.

 

Have now found some relevant statements quite a few £12 charges and one at £20 further back - I would imagine that when I SAR them I will find a few more.

 

I dont suppose the £12 charges would be classed as penaltie - or are they?

[ukaviator]

I would get a set aside based on unlawful penalty charges, Default notice, CCJ was not defended at the time. That will buy you some time to get your charges information and stop any further action by the claimant. Should be interesting to see how much they have charged.

 

Roughly how much is owing on the account?

[slick132]

I dont suppose the £12 charges would be classed as penaltie - or are they?

They most certainly are penalties - unlawful ones too, which must be repaid in full !! Send the SAR ASAP.

[pussycatdoll]

They most certainly are penalties - unlawful ones too, which must be repaid in full !!

 

Well thats a shock I must say - I thought that I couldnt claim those back - brings a whole new meaning to my claim against Citibank - I will have to redo my figures!!

 

I will get SAR off first thing in morning.

 

So what is the reasoning - I have been defaulted for the wrong amount or that the amount they claimed at court was incorrect.

 

A short explanation would be useful and perhaps some links so that i can read up on it.

 

PCD

[pussycatdoll]

UKAviator

 

Roughly how much is owing on the account?

 

Its around £8K

 

I seem to have gained £1k from original default notice:x

[slick132]

Your Application on form N244 for Set-Aside of the Judgement againt you will rely on:-

 

1. The inclusion of unlawful penalty charges in the Default Notice(s) rendering it incorrect.

 

2. The inclusion of unlawful penalty charges in the Claimants POC rendering it incorrect.

 

Until the N244 is Filed at court, if you receive anything from RBS/Mint, their solicitors or a DCA, write and tell them:-

 

Dear sir or madam,

 

Claim No: 5XY12345

 

I refer to your letter of xxdate.

 

Please be aware that it is now my intention to apply to the xxxxxx County Court for a Set-Aside of the Judgement made against me on xxdate.

 

I have taken advice in this matter and realise that I had valid grounds on which to defend against the claim. I will also ask the court to reconsider the Interim Charging Order made in this respect.

 

Until this matter is dealt with and heard in court, you should withhold any collection activity.

 

Yours faithfully,

 

PCD

[pussycatdoll]

Thanks slick you have been a great help on this I will do the SAR this morning and get it posted.

 

This is a great site and I am sure that you guys must have answered these questions many times before. I feel so much better now that I have some support and my depression is beginning to lift.

[ukaviator]

Good. There is a way to go yet, but its a start to getting this debt sorted out. Shout if you need anything. .