Arrow/evershers CCJ+CO over old MBNA debt

[reggie76]

No, unfortunately, but I may be able to get legal representative have a meeting with someone next week.

[reggie76]

Court have called me back, the only documents on the file are my admission to the debt, N245 forms I completed to vary the amount (twice) and also to suspend the warrant of execution. Judgment for claimant and Variation order(determination) which said I had to pay in full forthwith and the warrant of execution form.

 

There is no claim form, particulars of claim, CCA, default notice or notice of assignment.

 

I have been advised though there is a charging order file which is being sent down from Bradford, is it possible the documents could be on there?

Edited April 16, 2009 by reggie76
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[reggie76]

Defence for set aside- comments and feedback would be appreciated please

 

After deliberation I am looking to apply for a set aside of the court order as I believe I have a reasonable prospect of success at the hearing, I understand that I have not acted promptly but I believe there is no time limit for making an application and I hope you will take into consideration the following reasons:

 

1. I did not dispute the debt as I assumed the debt was mine therefore I hoped, naively, I could reach an agreement to pay back the debt with the creditors.

 

2. In the Admission (specified amount) form I initially received, I noted the statement “If you make no offer the claimant will decide how much and when you should pay”. Therefore I also felt it was better to admit the debt and offer a payment that I could afford.

 

3. At the time of the judgement I was unaware of my rights to defend the claim by submission of a defence (CPR13.2)

 

4. Having now investigated my rights, I have written to the claimant making a formal request for information pursuant to the Consumer Credit Act 1974. This was acknowledged as received by the creditor on the 24th of March but to date I have not received any further information. I have been advised by the OFT that the creditor has a period of 12 working days to provide the agreement and the statement. If they cannot provide the information they cannot enforce an agreement. This prevents enforcement with or without a court order.

 

5. I would also like to ask if a copy of the agreement has even been presented to the courts as how can we ascertain the debt was lawful without seeing the original agreement.

 

6. An interim charging order was made by Bradford County Court last year but the court did not take into consideration if a charging order would disadvantage other creditors. Other creditors would be ‘unduly prejudiced’ if they have not had the chance to object to a final charging order.

 

7. Under the Civil Procedure Rules the court would expect people to ‘act reasonably’ to avoid having to go to court. I do not believe this has been adhered to by my creditors who have acted in oppressive behaviour by not accepting reasonable offers and pressurising me to pay in full or large instalments that I cannot afford.

 

8. By way of further information I have sent a Subject Access Request to the original creditors on the 4th of April 2009. The law states that the creditor has 40+2 working days in which to comply with such a request.

 

9. The court can see that I have attempted to come to an agreement with the creditors on numerous occasions and I have continued regardless to make monthly payments to the alleged debt. I hope the court would take this into consideration as attempting to resolve this dispute and not an admittance that the debt is lawful but it is very intimidating and daunting dealing with this situation.

Edited April 16, 2009 by reggie76
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[I've got no money]

If you have already admitted the debt it makes it much harder to set aside the judgment. I don't think that your chance of setting aside the Judgment is very good

 

I presume that this application is to set aside the judgment and to set aside the charging order.

 

It is not likely that the court will have the CCA, DN or Notice of Assignment. The PofC may be on the charging order file.

 

Can I ask the date of the original claim and the date that you filed your form of admission.

 

Ideally you need to explain why you have delayed

 

Your number 3 - when you got the summons you should have received the acknowledgment pack which tells you about filing a defence - I think that you need to expand on it a little and say that you did not know that you had a defence to the claim.

[reggie76]

Not sure of the exact date of the original claim but I filed my form of admission on the 27th of Jan 2008.

 

I have a good reason for delaying which was down to ill health so I just accepted it as I couldn't cope with it at the time.

[r&b]

from my own experience reggie im sorry to say that the timeliness was rejected completely and mine r many months after yours. so thats 13.2 out i would have thought (unless u can prove conclusively that due to ill health, neither u nor anyone else could have dealt with it at the time. thats what a solicitor told me anyway). judge said in reply to my argument abt poor advice: that i took advice so thats that, unless i wanted to sue those that gave it !!!13.3 is where u need to concentrate the effort IMO whereby u convince the court that u have sufficient defence. but i agree with IGNM in that it needs to be on N244 application for them to consider it. if there were no docs attached to original claim i would state that as fact (possibly spend the fiver for copies if at all poss). for enforcement (other than the bulk centre at northampton) so im led to believe they MUST have supporting docs. u could then hope that DJ adjourns allowing more time to get the docs (or not) and u to compile more of a case perhaps. im on pretty much the same track mate so best of luck however u decide to go..

[reggie76]

Yeah cheers R&B I may have something on the 13.2 and medical records would back me up.

 

I've got a meeting next Wed so see what advice they give me before submitting my N244.

 

How's things your end?

[r&b]

well i think ive got one nailed down (yeah rite like anth is nailed) but im struggling with the one without any docs, problem being its thru northampton so no need for any docs with claim. leaves me a bit exposed i think but im trying to work it out anyway. hope your advice proves fruitful, im sure it will...gd luck on the 13.2 front

[reggie76]

Ditto

[Docman]

Reggie

 

I think you might like to include a reference to a case in your submission. In Wilson v First Capital Trust Ltd [2003] the Court of Appeal held

 

"Section 127(1) of the 1974 Act is subject to the restrictions imposed by sections 127(3) and (4). Those subsections set out circumstances in which the court shall not make an enforcement order under section 65(1) of the Act. In particular, section 127(3) is in these terms:

“The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

It follows that in a case where there is no document signed by the debtor – or no document signed by the debtor which contains all the prescribed terms of the agreement – the court has no power to make an enforcement order. In such a case, the effect of sections 65(1) and 127(3) of the Act is that the agreement is not enforceable against the debtor.

 

Have a look at the case from the Cases library above. The point is that without the CCA, the court could not make the orders it did. That is the basis of your submission for a set aside.

[Docman]

Reggie

 

You might to think about this for your application-

 

1. I am applying to set aside of the court orders as I believe that the Court has mis-directed itself as to the law and has acted in error. so that I have a reasonable prospect of success at the hearing.

2. I did not dispute the debt because I was attempting to reach an agreement with all my creditors.

 

3. In the Admission (specified amount) form I initially received, I noted the statement “If you make no offer the claimant will decide how much and when you should pay”. Therefore I also felt it was better to admit the debt and offer a payment that I could afford. At the time I could not afford to take any legal advice and was unaware of my rights to defend the claim by submission of a defence.

 

4. I have now received some legal advice, particularly as regards obtaining a copy of the credit agreement. I have written to the claimant making a formal request for information pursuant to S78 of the Consumer Credit Act 1974. This was acknowledged as received by the creditor on 24 March 2009 but to date I have not received any further information. I have been advised that the creditor has a period of 12 working days to provide the agreement and the statement.

5. I have also asked for a copy of the agreement from the Court file to ascertain if such a document has even been presented to the court. It appears no credit agreement has been filed with the court.

6. I have been advised that the Court could not make an Enforcement Order if a credit agreement was not signed. I refer the Court to the matter of Wilson v First Capital Trust Ltd [2001] EWCA Civ 633 where the Vice Chancellor stated

“5. Section 127(1) of the 1974 Act is subject to the restrictions imposed by sections 127(3) and (4). Those subsections set out circumstances in which the court shall not make an enforcement order under section 65(1) of the Act. In particular, section 127(3) is in these terms:

“The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

It follows that in a case where there is no document signed by the debtor – or no document signed by the debtor which contains all the prescribed terms of the agreement – the court has no power to make an enforcement order. In such a case, the effect of sections 65(1) and 127(3) of the Act is that the agreement is not enforceable against the debtor.

6. In addition to the judgment against me, an interim charging order was made by Bradford County Court last year. In view of the decision in Wilson v First Capital Trust Ltd, I ask that the Court set aside the original judgment and the interim charging order.

[I've got no money]

Reggie

 

You might to think about this for your application-

 

1. I am applying to set aside of the court orders as I believe that the Court has mis-directed itself as to the law and has acted in error. so that I have a reasonable prospect of success at the hearing.

 

2. I did not dispute the debt because I was attempting to reach an agreement with all my creditors.

 

3. In the Admission (specified amount) form I initially received, I noted the statement “If you make no offer the claimant will decide how much and when you should pay”. Therefore I also felt it was better to admit the debt and offer a payment that I could afford. At the time I could not afford to take any legal advice and was unaware of my rights to defend the claim by submission of a defence.

 

4. I have now received some legal advice, particularly as regards obtaining a copy of the credit agreement. I have written to the claimant making a formal request for information pursuant to S78 of the Consumer Credit Act 1974. This was acknowledged as received by the creditor on 24 March 2009 but to date I have not received any further information. I have been advised that the creditor has a period of 12 working days to provide the agreement and the statement.

 

5. I have also asked for a copy of the agreement from the Court file to ascertain if such a document has even been presented to the court. It appears no credit agreement has been filed with the court.

 

6. I have been advised that the Court could not make an Enforcement Order if a credit agreement was not signed. I refer the Court to the matter of Wilson v First Capital Trust Ltd [2001] EWCA Civ 633 where the Vice Chancellor stated

“5. Section 127(1) of the 1974 Act is subject to the restrictions imposed by sections 127(3) and (4). Those subsections set out circumstances in which the court shall not make an enforcement order under section 65(1) of the Act. In particular, section 127(3) is in these terms:

“The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

It follows that in a case where there is no document signed by the debtor – or no document signed by the debtor which contains all the prescribed terms of the agreement – the court has no power to make an enforcement order. In such a case, the effect of sections 65(1) and 127(3) of the Act is that the agreement is not enforceable against the debtor.

6. In addition to the judgment against me, an interim charging order was made by Bradford County Court last year. In view of the decision in Wilson v First Capital Trust Ltd, I ask that the Court set aside the original judgment and the interim charging order.

 

I think that is excellent

[reggie76]

Docman u r a legend & an inspiration. Ever thought about going into law?

[car2403]

Be careful saying that you've had legal advice - that could relinquish you as being a litigant in person, meaning the Judge isn't so lenient with you. If you've had legal advice, you should know how to apply to set aside a CO/CCJ, so if you get something wrong, the application could be thrown out as you won't be given any leeway.

[reggie76]

Chris, you're spot on and I appreciate your advice. Admittedly there is better advice on here than I have received from so-called legal advice.

[Docman]

Be careful saying that you've had legal advice - that could relinquish you as being a litigant in person, meaning the Judge isn't so lenient with you. If you've had legal advice, you should know how to apply to set aside a CO/CCJ, so if you get something wrong, the application could be thrown out as you won't be given any leeway.

 

Good point. Sorry, Reggie, my mistake. Best leave out the 'legal' from advice.

 

As to going into the law, I feel that's almost an insult (joke) after dealing with the low life at DCAs and their 'solicitors'. Thankfully, most lawyers with integrity wouldn't touch some of these firms with a barge pole.

[reggie76]

You've got nothing to be sorry bout mate.

 

And sorry for the insult, lol!

[reggie76]

Just been advised by the court that they have received my charging order fle and there is no additional documents on there.

 

So the court files they have, have no original claim with the particulars of claim, default notice or notice of assignment.

[reggie76]

Received copies of CCA from MBNA today. I know most of the writing is illegible but would appreciate comments about what stands out about this agreement being unenforceable please.

[reggie76]

Does the creditor's signature need to be on the agreement??

[Docman]

A valid CCA needs to be signed by the debtor and the creditor, contain the 'prescribed terms' AND be legible.

 

I suspect Arrow would get away with this CCA on a default application but it can be challenged. However, they haven't filed it as evidence.

 

have you made your application yet?

[reggie76]

Cheers that's what I thought.

 

No but defo doing my application now.

[car2403]

A valid CCA needs to be signed by the debtor and the creditor, contain the 'prescribed terms' AND be legible.

 

I suspect Arrow would get away with this CCA on a default application but it can be challenged. However, they haven't filed it as evidence.

 

have you made your application yet?

 

Well...

 

To be properly executed it does.

 

If the creditors signature is missing and is the only issue with it, the debt will be enforceable under s.65 - s.127(3) only prevents enforcement in cases where the debtor hasn't signed the agreement.

[reggie76]

Chris, what about:

 

61.--(1) A regulated agreement is not properly executed unless--

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

[car2403]

Chris, what about:

 

61.--(1) A regulated agreement is not properly executed unless--

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

As I said, properly executed if it complies with s.60/s.61.

 

Improperly executed agreements can be enforced by Court Order under s.65.

 

s.65 Enforcement Orders are subject to s.127.

 

s.127(3) means s.65 can't be used where the debtor hasn't signed the agreement.

 

In short;

 

Missing creditor signature = improperly executed, but enforceable via Court order.

 

Missing debtor signature = improperly executed and cannot be enforced by the Court.