Marlin/Mortimer CCJ HFC Marbles Card - Set Aside Help **WON plus Costs**

[Spamalot]

Thanks again Rob,

Took another look at march default.....the only fly in the ointment there seems to be that they say 'IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU....

 

Further Action.

 

a) Teminate the agreement on the date shown.

 

b) yahdee yahdee yah

 

Could the May be their defence?

 

Just trying to cover every eventuality...

[robcag]

Thanks again Rob,

Took another look at march default.....the only fly in the ointment there seems to be that they say 'IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU....

 

Further Action.

 

a) Teminate the agreement on the date shown.

 

b) yahdee yahdee yah

 

Could the May be their defence?

 

Just trying to cover every eventuality...

 

No, the word 'MAY' has to be included as that is how the DN must be set out according to the regulations. They may (no pun intended) try to use that as a get out (as happened with my case) but IMHO it is a pretty feeble argument.

 

I think this is discussed in this excellent thread (BICBW - I've seen it somewhere fairly recently though);

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

Cheers

Rob

[Spamalot]

Having read A Tale of a Dodgy DN I am a tad enlightened and a tad confused.

 

In words of one syllable please....

 

Does the fact that this debt has been taken to court mean that the agreement was terminated ?( I never received a 'Termination Notice' as such. Unless you count the letter from Mortimer Clarke saying pay up or else, which arrived a week before the court papers)

 

Does the fact that that my DN's were faulty mean that they did not have the right to take me to court/terminate my agreement and I have a good case to fight?

 

And if the answer is yes to these questions should these facts be my main defence to the claim when applying for my set aside?

 

Sorry to be such a pain but I don't want to get myself in any deeper doo doo than I am already and I want to be sure of how I'm going to fight these so & so's and not leave anything to chance.

 

Thanks peeps.

[Spamalot]

In Woodchester v Swayne and Co 1998, the Default Notice overstated the Arrears by 38.71% and was declared invalid, so any Notice that is at least that inaccurate should also be invalid based on that case history.

 

The degree of error will determine if the Notice is invalid, an error greater than 38.71% will exceed the Default Notice error noted in Woodchester v Swayne and Co 1998, so can be considered invalid based on that precedent. Below 38.71% margin for error, and there will be a debate if the error is significant enough to invalidate the Default Notice, or if the error is just de minimis.

 

de minimis = de minimis non curat lex, a Latin phrase meaning the Law does not care about very small matters. This is not very helpful, and does not actually say how small an error needs to be before it can be considered de minimis.

 

Arguably, a Default Notice that is even 1p out should be invalid, because any large and sophisticated financial institution ought to know down to the last penny what you owe.

 

But the further away from 1p inaccuracy you can get, and the closer to 38.71% inaccuracy you can get, the better.

Just spotted this on the default 7 clear days thread...guess this meets the inaccuracy on my March 2008 default...

 

But having read that link again I'm confused about the amount of time given to remedy a default is it 7 clear days or 14....arrrrrrgh

[Spamalot]

Think !'ve just answered my own question....CCA1974 was 7 days...CCA 2006 increased it to 14....so much to learn.

 

Btw when I fill out my form for set aside do I have to quote acts and cases etc. or do I just put basic statements and save the bumf for when I or if get a hearing?

[robcag]

Having read A Tale of a Dodgy DN I am a tad enlightened and a tad confused.

 

In words of one syllable please....

 

Does the fact that this debt has been taken to court mean that the agreement was terminated ?( I never received a 'Termination Notice' as such. Unless you count the letter from Mortimer Clarke saying pay up or else, which arrived a week before the court papers) I would say that as they threatened to terminate if you did not remedy the default by the date given, then that is it, they terminated.

 

Does the fact that that my DN's were faulty mean that they did not have the right to take me to court/terminate my agreement and I have a good case to fight? They terminated unlawfully as they did not give you the requisite period to rectify the default. They did not have the right to terminate or take you to court as they had not served a default notice in accordance with s.87/88 of CCA1974, see; Results within legislation - Statute Law Database

 

And if the answer is yes to these questions should these facts be my main defence to the claim when applying for my set aside?

 

Sorry to be such a pain but I don't want to get myself in any deeper doo doo than I am already and I want to be sure of how I'm going to fight these so & so's and not leave anything to chance.

 

Thanks peeps.

 

 

 

Think !'ve just answered my own question....CCA1974 was 7 days...CCA 2006 increased it to 14....so much to learn. The required period for both the DNs you have linked to was 14 days and neither gave that amount of time, notwithstanding the fact that the second DN is irrelevant anyway as the agreement had already been terminated.

 

Btw when I fill out my form for set aside do I have to quote acts and cases etc. or do I just put basic statements and save the bumf for when I or if get a hearing?

 

Cheers

Rob

[Spamalot]

Thanks once again Rob your advice has been invaluable.

 

This is what I intend to put in my set aside application.... Any input to improve my chances from you guys out there would be very much appreciated.

 

I have blatantly and shamelessly plagiarized R&Bs 'what I'm asking the court to do and why' because of time delay but I'm also adding 'research' into the mix. So basically, I'm asking for a set aside as I received unsound advice from my DMC and was unaware of my rights.I have since researched my rights and discovered faults in the way my case has been handled by the claimant. Should I attach a copy of the letter from my DMC which advises me to send the court papers back as a matter of urgency...etc etc to supprt my claim?

 

ICDSN245.jpg picture by Spamalot_bucket - Photobucket

 

 

INFORMATION IN SUPPORT OF APPLICATION...my ideas.

 

POC was incorrect and invalid as it states default notices were served and the agreement was terminated etc.

 

POC picture by Spamalot_bucket - Photobucket

 

Did not receive Default notices in accordance with s87/88 CCA therefore the agreement was terminated unlawfully and should not have been taken to court.

 

Dispute in regards to the exact amount of debt as no statements of account received for many months. Recent request in writing was ignored SARs now sent to HFC and Marlin awaiting replies.

 

Awaiting to receive CA to see if it is enforceable and whether or not interest can be charged after judgement. (My original query...my how this has escalated with my new found knowledge!! )

 

Still waiting to confirm if assignment is absolute as despite written request to MC I have not been furnished with DOA. (will be spending my time researching valid NOAs today to see if I can dredge anything up)

 

As I said, all input and advice is welcome.

 

Thanks everybody...Happy Easter..don't eat too many eggs.

[foolishgirl]

Sorry not a lot of time to look at this weekend spam but initial thoughts on above

 

1. You cannot claim a 'might' - like awaiting the CA or SAR, but you can make more of the fact that the account is in dispute re. interest charges etc. & that you have requested the info from the claimant.

2. You can make more of the default notices issue i.e. point out the failure to comply with the time limits

3. You can query ownership of the debt & should ask for the DEED of assigment to be presented to the court as proof of ownership (unlikely that they will let you have a copy)

 

I'll keep thinking..

[robcag]

Sorry not a lot of time to look at this weekend spam but initial thoughts on above

 

1. You cannot claim a 'might' - like awaiting the CA or SAR, but you can make more of the fact that the account is in dispute re. interest charges etc. & that you have requested the info from the claimant.

2. You can make more of the default notices issue i.e. point out the failure to comply with the time limits

3. You can query ownership of the debt & should ask for the DEED of assigment to be presented to the court as proof of ownership (unlikely that they will let you have a copy)

 

I'll keep thinking..

 

I agree with foolishgirls point 2 above.

 

Just my (non-expert) opinion, but surely you can assert that the claim was brought unlawfully, as due to the invalid DN, the creditor was not entitled to bring the claim as s.87 had not been complied with;

87.

Need for default notice.

—

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a

“

default notice

”

) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,

—

(a)

to terminate the agreement, or

 

(b)

to demand earlier payment of any sum, or

 

©

to recover possession of any goods or land, or

 

(d)

to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)

to enforce any security.

 

As I said, just my opinion, but surely the above includes the right of the creditor to take legal action to, in effect, recover possession of any alleged outstanding money?

 

Cheers

Rob

[Spamalot]

Many thanks again to FG and Rob.

Still full of questions though...

As I am now disputing the amount owed due to lack of statements etc. Should I stop paying MC the amount ordered on CCJ or continue?

 

Apart from a token £3 to check that I had the correct bank details I haven't paid them anything as such because prior to CCJ it was all done through my now redundent DMC and I had a payment in hand for March.

 

The first payment due from me is in around 10 days....any advice?

 

Should I send them a letter saying account in dispute re balance and stop paying or will that leave me open to 'Default' and further action from the court...gets complicated doesn't it.

 

If I do pay is it admitting the debt? If I don't pay am I open to default?

 

I did ask MC for statements but they didn't send me any so I am relying on SARs....Help

[foolishgirl]

Do NOT stop paying the amount on your CCJ!

 

Once you do that, it gives them the excuse to apply for a Warrant of Execution (baliffs) or a charging order.

 

If the CCJ was made a while ago, it may be wise before you apply for a set aside, to wait to see what the SAR request throws up.

 

Also when you with the DMP what exactly did you fill in to submit to court (you mention a N245? ) with regards to this debt eg. did you admit it - all of it or part of it?

[Spamalot]

The CCJ was made at end of Feb this year. I received a blue form, I am only guessing the number 'cause that is what was on the covering letter from the DMC when they returned the papers to me for my siganature.

ICDSN245.jpg picture by Spamalot_bucket - Photobucket

 

Basically I panicked when they dropped on my doorstep and contacted DMC who said 'send everything to us they're just playing hardball the judge will see that what you are offering to pay is all you can afford and it won't go anywhere.' I thought it was to do with applying for a charging order as stated in this letter.

Letter re land reg picture by Spamalot_bucket - Photobucket

 

One CCJ Later and one sacked DMC....I was naive, unaware of my rights and totally taken in by DMC....I don't think I even looked at the amount I just got the papers off as quick as poss so as not to upset the court.!!

As I have said in previous postings, I have not had statements for this account for best part of a year and mentioned this to the DMC but it seemed to go straight over their heads. So I guess I must have admitted the debt in whole. I know it's not a legal argument but I genuinely didn't understand what I was doing....

[foolishgirl]

The CCJ was made at end of Feb this year. I received a blue form, I am only guessing the number 'cause that is what was on the covering letter from the DMC when they returned the papers to me for my siganature.

ICDSN245.jpg picture by Spamalot_bucket - Photobucket

 

Basically I panicked when they dropped on my doorstep and contacted DMC who said 'send everything to us they're just playing hardball the judge will see that what you are offering to pay is all you can afford and it won't go anywhere.' I thought it was to do with applying for a charging order as stated in this letter.

Letter re land reg picture by Spamalot_bucket - Photobucket

 

One CCJ Later and one sacked DMC....I was naive, unaware of my rights and totally taken in by DMC.....

 

 

So did you ever receive a summons from the court (claimant Phoenix) prior to being notified that you had got a CCJ? Or maybe you handed the summons over to the DMC? Can you recall?

[Spamalot]

Just looked on debtline to see if I could find the form....seems to be as far as I recall an N9A and no I didn't receive a summons just a ccj .

[foolishgirl]

Gee, I can't believe that your DMC did this without explaining it all properly to you! Form N9A (blue form, yes?) is the one that admits your debt & you could face problems in now getting the judgment set aside.

 

However if you can prove to the court that you were misled by the DMC into admitting the claim you might have a case. Maybe you should make this the primary reason for the set aside?

 

What I don't really understand is that MC wrote to you direct re. possible legal action on the CO but the summons seems to have been issued to the DMC if you never caught sight of it & yet they ask you to fill in an N9A & N245. Do you think that may have happened? it seems v. odd...

Edited April 12, 2009 by foolishgirl
addition

[Spamalot]

In all honesty I got seriously confused at the time as to what was going on as the whole thing hit me out of the blue...one minute it was we accept your offer, review due in 3 months next it was land registry checks, threats of charging order and then the N9A. I think the mention of an n245 on my corres from the DMC was a mistake because as far as I'm aware only one court form was sent i.e N9A. I don't think the N245 ever existed...I assumed that was the number of the blue form as it was quoted on the cover letter when the N9A was returned to me for signing.

 

If you read the letter from ICDS in the above link you can see that they advised me to fill it in and get it back as soon as poss to avoid further action. I like a fool took that as tell the court what you are prepared to offer and they won't put a charging order on your property...if you fail to send it back in time they will. Prior to this I had never heard of CCJs or COs.

BTW I intended to use that letter as part of my evidence re 'bad advice from DMC'. It also shows a spot of incompetence by putting the wrong form number on it.

 

The upshot is (are you still with me:shock:)

a) Marlin/ MC threatened Charging order.

b)DMC say take no notice they won't get one cos of all your other creditors.

c) N9A drops on doorstep a week after MC send letter saying pay up or else.

D)Contact DMC who say send papers to us we will fill them in for you.

E)DMC send papers back with covering letter as in link above.

F) I do as I'm told believing I am avoiding court action and a charging order.

G)2 months later CCJ arrives.

H) Gobsmacked contact DMC who say 'It was inevitable really...nothing to be ashamed of nearly everyones got one these days.

I) DMC Dismissed.

 

Got a bit cross 'cause I hired them expressly to deal with HFC/Marbles/Marlin/Phoenix/MC and I think I could have done a better job myself. Now If I can with a little help from CAG I hope to right a few wrongs and fight back.

 

I'm determined to get something out of this mess as I feel I've been railroaded by the DCA and my own DMC!! both of which I think are SOB,s

Edited April 12, 2009 by Spamalot
typo

[foolishgirl]

OK, I think I have the sequence of events on the court action spamalot so to clarify for your benefit:

 

1. The POC you have linked is the 'summons'. Attached to that would have been the acknowledgment of service (N245) & admission form (N9A)

2. The DMC have completed both forms for you as 'admitting the claim' but offering to pay by instalments

 

However the DMC don't seem to have explained to you that in so doing you will get a CCJ, nor do they seem to have investigated the possibility that the claim may have not been valid.

(I also note that MC were applying for stat. interest - not permitted on regulated credit agreements!)

 

So as I said before, you may have trouble getting this set aside as you have admitted the claim. IMO the best way to approach it would therefore be from the misleading info. supplied by the DMC that resulted in you admitting something that you did not want to admit.

 

However before going any further please be aware that a set aside (even if granted) only puts you back to POC status & that you would have to defend really well if you hope to knock the debt on the head. That would include possible CCA & default irregularities but you have to be prepared to go through a hearing & argue your case on such.

[Spamalot]

Thanks FG. I really appreciate your time. You've been most helpful. I shall go over what I have with a fine tooth comb, see what turns up in the post next week and then hopefully give it my best shot......you gotta be in it to win it.

[Spamalot]

Re set aside...any thoughts on this please.

 

What order are you asking the court for and why?.

 

I am asking the court to set aside the above judgement because at the time I was unaware of my rights to defend the judgement by submission of a defence. (CPR 13.2)

I had received and acted upon poor and unsound advice from My DMC to proceed without challenging any particulars or legalities of the case.

My belief in that poor advice and current research into my rights has led to the delay in this application but

I am confident however that the evidence set out in this application will prove valid reason for granting the Set aside. (THANKS R&B )

 

What information will you be relying on, in support of your application.

 

Having not received statements for this account in over a year I am disputing the amount claimed . I cannot be sure of the authenticity of the figures and how much is given over to interest and possible unlawful charges.

 

The POC states that 'The claimant served a default notice on the defendent stating the amount due & requiring the defendent to pay the same. The defendent failed to pay and the agreement was terminated.'

In my defence, the default notices I received from the original creditors were invalid due to neither giving the full 14 days for remedy. The second one received also overstated the amount of minimum monthly repayments . Neither was served in accordance with s.87/88 of CCA 1974.

 

As the default notices served were invalid the claimant unlawfully terminated my agreement and therefore had no legal right to request the intervention of the court.

I also cannot be sure of the legal rights of the claimant to take this case to court as my credit file shows both Marlin and HFC maintaining the debt citing the invalid default dated 31.3. 2007. If the assignment of debt was

absolute then I should not have the debt shown as being maintained by both companies on the report but if it wasn't then the claimant once again did not have the right to take court action.

There are discrepencies with regards to the date of assignment also. My notification states that the debt was assigned on 20.5.08 and on the POC it states it was assigned on 18th July 2008.

I have requested a copy of the DOA but as yet have not received one therefore I would ask that this be produced at court to prove ownership.

 

The POC also states that the claimant claims interest at the rate pusuantto The agreement from the judgement date until payment.

This I believe is not permitted on a regulated credit agreement and therefore the CA needs to be inspected with regards to this claim .

 

I have sent SARs to both HFC and MARLIN and would respectfully request that once I have received this information, should I have any disputes regarding the CCA, or in respect of the types and amounts of charges added to this account, that I be allowed to amend my defence accordingly.

 

These are the rough ideas I have for my set aside application....I welcome any input on 'order' jargon etc. to give me my best chance.

 

Ta muchly.

Edited April 13, 2009 by Spamalot
addition

[foolishgirl]

Re set aside...any thoughts on this please.

 

What order are you asking the court for and why?.

 

I am asking the court to set aside the above judgement because at the time I was unaware of my rights to defend the judgement by submission of a defence. This request is made under CPR 13.3

I had received and acted upon poor and unsound advice from My DMC to proceed without challenging any particulars or legalities of the case.

My belief in that poor advice and current research into my rights has led to the delay in this application but I am confident however that the evidence set out in this application will prove valid reason for granting the Set aside.

 

What information will you be relying on, in support of your application.

 

Having not received statements for this account in over a year I am disputing the amount claimed . I cannot be sure of the authenticity of the figures and how much is given over to interest and possible unlawful charges. A SAR was made to the claimant/OC in respect of this information on xxxxx but to date I have not received it.

The POC states that 'The claimant served a default notice on the defendent stating the amount due & requiring the defendent to pay the same. The defendent failed to pay and the agreement was terminated.'

In my defence, the default notices I received from the original creditors were invalid due to neither giving the full 14 days for remedy. The second one received also overstated the amount of minimum monthly repayments . Neither was served in accordance with s.87/88 of CCA 1974.

I would therefore claim that the claimant unlawfully terminated my agreement.

 

As far as I am aware, the claimant has not proved legal ownership of this account by the production of a Deed of Assignment. I have requested the claimant to provide a copy of this but have not yet received it & would respectfully ask the court to ensure that this is available to the court.

 

Furthermore there are discrepencies with regards to the date of assignment. My notification states that the debt was assigned on 20.5.08 and on the POC it states it was assigned on 18th July 2008.

 

I therefore cannot be sure of the legal entitlement of the claimant to pursue this case.

 

I note that on the POC the claimant sought to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. The claimant is not entitled to do so and attention is drawn to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974.

 

I have sent a request to both HFC & Marlin for a copy the consumer credit agreement to which this claim relates & also any further information that would enable me to determine the accuracy of this claim and would respectfully request that once I have received this information, should I have any dispute regarding the agreement the amounts of charges & interest added to this account, that I be allowed to amend my defence accordingly.

These are the rough ideas I have for my set aside application....I welcome any input on 'order' jargon etc. to give me my best chance.

 

Ta muchly.

 

Suggestions for tiding up the wording in green spam, I'm sure others will have more ideas.

 

Note: Just check the CPR that you are applying under - I think it may be 13.3 as you want to be able to give a 'true' defence.

[fedupwithdebt2009]

subbing

[Spamalot]

Excellent FG..You've got me convinced.

 

Thanks a million.

[Spamalot]

Well, there we go, Set aside application in the post....

 

Now a stupid sort of hypothetical question.

 

If a £10,000 debt is assigned to another company for say £5000 is this what's shown on the Deed of assignment and therfore the reason why the assignees are reluctant to show them around?

Furthermore, If that is the case, if a deed is produced in court and it states that they'd only paid £5000 for the debt, would that be all the assignees are really entitled to claim? That is to say has the first £5000 been written off by OC and no longer a debt?

 

Am I making sense or just rambling?

[foolishgirl]

I think DCAs usually buy in bulk rather than specified individual debts eg. 100 x debts, total £10,000. Some will be worth more than others, some will be questionable enforecable. It will then be up to the DCA to see how much they can get the debtors to cough up.

 

They won't show you the Deed as it contains lots of other debtors' details.

[Spamalot]

Thanks FG...Just trying to think of different angles of attack in my 'defence' if I'm lucky enough to get the opportunity to fight back.

 

Fingers crossed.