Arrow/evershers CCJ+CO over old MBNA debt

[PGH7447]

read this thread

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/176463-hearing-set-aside-ccj.html

[reggie76]

CCA request acknowledged by Arrow on the 24th of March. Received nothing yet.

 

Emailed Eversheds re. whether CCA agreement has been presented to the court and received these responses:

 

"As a valid Judgment was in place at the time the Charging Order application was made, it was not necessary to present a copy of the original agreement."

So I then asked if it was presented to the court when judgment was applied for and received this response:

 

"As the Particulars of Claim, included in the Claim Form, set out the details of the agreement, it is not necessary to provide a copy of the agreement when issuing the Claim or requesting Judgment. However, had you seen fit to file a defence, a copy of the agreement may have been produced at this time, if necessary."

 

Anyone got any feedback on this, are they avoiding the question?

I want this setaside but not sure if I can do anything until I know if there is a valid CCA available.

[reggie76]

Any comments/advice please?

[sequenci]

Hello there.

 

I'm not sure how far requesting your agreement will get you as it seems that judgment was entered ages ago so I can't imagine any judge allowing a set aside after all this time.

 

I note that a charging order has been granted against the property, is there an instalment order granted by the court? If not then I guess the best thing that you can do is apply to vary the judgment and have conditions attached to the charging order such as no order for sale providing you keep up with a monthly instalment?

[reggie76]

Oh, that's not good news.

I didn't know my rights and/or realise at the time I could fight a judgement order

I just asked for instalments to be taken into consideration.

 

The judge ordered me to pay the outstanding sum forthwith.

I have tried to negotiate with the creditors through their solicitors to come to some agreement but it's just not happening.

 

As in my earlier post I was under the impression, due to the email from Eversheds, that a charging order had to be in place before an instalment agreement could be set up!

 

This is a mess and I must be able to do something as I think the solicitors have

 

Any advice would be appreciated, surely I can do something?

[42man]

If it was me i'd send a SAR request to the original creditor, if they go for a charging order you can try to get a set aside in but if you admitted the debt in the first place when the CCJ was issued as Sequenci says above you might have a battle.....have you ever claimed back any of the excessive charges at all ?

[42man]

Removal of CCJ's - Step by step guide to the process

 

The OFT are currently investigating charging orders for unsecured credit.....however if you haven't missed a payment so far, then you are keeping to the order....they should not be applying more pressure for a charge...!! I would also report them to the OFT....

[reggie76]

Thanks for the feedback. They already have a charging order.

 

I really feel like i've been taken for a ride and also been very naive and just accepted everything.

As previously mentioned I just didn't know my rights and accepted everything that was thrown at me.

 

I have sent an email over to the OFT regarding this but just as info more than an actual complaint.

 

Apart from sending a CCA request and a N245 I haven't done anything else.

 

Should my next step be a complaint to my local county court or do a SAR request to MBNA?

[42man]

I would SAR the original creditor......there is a good SAR here -

remember it costs £10 and send it recorded (they MUST comply in 40 days) - http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca.html

[reggie76]

Thanks will do, then what's the next step?

[reggie76]

Received a letter for a court hearing on the 1st of June. Bit concerned as the letter says I accepted the debt previously, which I would have done as I had a letter from Eversheds so I assumed it must be my debt and this was before I knew about this site and flawed CCA agreements.

Now I need to get a good defence as I would like to get the charge order removed. I'm going to SAR MBNA today but how will that help me with my court defence?

[Uptotheneck]

If they dont provide a properly executed CCA how can you admit to something that doesnt exist??

 

 

 

Regards

 

David

[reggie76]

Won't the court throw that back at me and say I have admitted the debt is mine?

[Uptotheneck]

You cant admit to something that doesnt exist can you?

 

 

Regards

 

David

[sequenci]

You cant admit to something that doesnt exist can you?

 

 

Regards

 

David

 

It is not as easy as that, especially when court is concerned. my concern here is that the situation with regards to the judgment debt is quite far along. a set aside MAY be granted if there is a real prospect of success or if the court is satisfied that there is some other good reason why it should be set aside. One thing to consider is that a set aside application needs to be made 'promptly'.

[reggie76]

Thanks sequenci, what reasons can I give for a set aside?

 

I have the following reasons for why a charging order should not be in place and be removed or set aside:

1. The debt is in my sole name, and it is not fair for the whole family to lose their home because of a debt belonging to me.
   
2. The welfare of my young children should especially be taken into account. They need stability at school. The effect on my children of moving house should be considered.
   
3. My home is currently worth less than my mortgage so the creditor would not be paid off, even if they forced my home to be sold.
   
4. I already have payment arrangements in place with other creditors. Other debts are larger than this debt and other creditors have frozen their interest.
   
5. I believe my other creditors have been "unduly prejudiced". The courts decision in making a charging order has disadvantaged my other creditors.
   
6. I will ask the court to look at whether the interests of the creditors should outweigh the interests of my family. Under The Trusts of Land & Appointment of Trustees Act 1996 the court has discretion to say the family's interests outweigh the creditor's interests.
   
7. I have had no proof from the creditors that this debt is mine and has a true signed credit agreement been produced in court?
   
8. I am looking to report the DCA and their solicitors to the OFT as they have have a clear legal obligation to deal fairly and proportionately with consumers. This is more important than ever given the current economic climate, when people may already be suffering as a consequence of debt problems. The OFT will continue to use their licensing powers to take firm action to protect consumers where debt collectors engage in oppressive behaviour or practices that fail to comply with their guidance.
   
9. The solicitors have continually asked for bank statements, payslips and an income and expenditure form completed and they have no right to demand this especially as I have advised the court of my income and expenditures in the way of a N245.
   

Any other advice from you guys will be appreciated. I have applied for a true signed copy of the CCA and have now SAR'd the original creditor today.

 

Please help, thanks in advance.

Edited April 4, 2009 by reggie76

[boswell]

Quite a few years ago i was in a similar position with a bank who threatened to take my home if i didn't pay the full amount. I said i didnt think a Judge would look very kindly on you doing that with me having two young children and a disabled wife, plus the fact we had a joint mortgage and that it was my debt and not my wifes. I offered them 50% and said thats all i can afford, if they didnt like it then take me to court. I eventually received a letter from them accepting my proposal.

I cant see any court making a family with young children homeless over an unsecured debt.

[reggie76]

If my request for a CCA is not received within the 12 working days from when it has been acknowledged can I send an account in dispute letter bearing in mind I have a CCJ and a charging order in place for this debt?

 

In court June 1st so need all the help and evidence I can get.

[reggie76]

If my request for a CCA is not received within the 12 working days from when it has been acknowledged can I send an account in dispute letter bearing in mind I have a CCJ and a charging order in place for this debt?

 

In court June 1st so need all the help and evidence I can get.

 

Bumping!

[car2403]

Definately - having no agreement is definately a reason to seek a set aside...

[reggie76]

Thanks Chris, appreciate the advice but am I able to send them the account in dispute letter if I do not receive the CCA I requested if I have a CCJ & Charging order in place?

[reggie76]

Bumping again.

Could this be changed to reggie v Eversheds/Arrow Global

 

Anybody about to help?

[car2403]

Rename completed

 

Was the original claim that the CCJ came from defended?

[reggie76]

No

[reggie76]

Can a DCA apply for a Warrant Of Execution through the County Court for a debt of more than £5k which was for a credit card debt regulated by the Consumer Credit Act 1974?