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...

[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?

[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.

[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

[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....

[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 .

[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

[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

[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?

[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.

[Spamalot]

Rang Northampton CC today...Set aside received and in the system:).

Won't hear anything from them for about 3 weeks apparently because they are currently overloaded! Enlightened caggers I shouldn't wonder!!

 

Been informed that claimants have been barred from taking any further action against me until the hearing...yippee...cos from what I've been reading on this site it seems my particular brand of DCA likes to whack on a charging order willy nilly regardless of law.

 

Questions qustions questions....

 

1. When I applied for my set aside, I only sent one copy of relevant docs was that corect? I assumed it was just for the judge to look at to see if I had a chance for good defence. Should I have sent more? Also should I have attached copy of POC?

 

2. My major stumbling blocks are my original admission to the debt and the fact that I paid Marlin after receiving letter of assignment. As all of this was done via DMC can I use that as a defence?

i.e it was DMC who advised me to admit claim, and It was DMC who arranged payments to Marlin without consulting me...Should I supply this evidence to the local court before the hearing?

That's enough for now...don't want to confuse myself or anyone else anymore...

 

Thanks peeps.

[Spamalot]

Thanks R&B...I am swotting as I type...who knows I could end up with a career change after all this!!!

[Spamalot]

Thanks again FG, R&B.

Have taken all your comments on board and working on them now.

Q. As far as most of my corres with DMC is concerned the majority was done by phone and email. If I can dredge up any emails relating to it would I be able to submit them as evidence? Sadly my original laptop died a death at the time all this was going on so I lost a lot of files/folders to do with the claim

[Spamalot]

Ok, So I've located a few emails from the past where I have basically asked DMC to deal with the corres from Marlin and mentioned that I haven't had any statements for a long while. And I have the letter which states that I should hurry up and send court papers back to avoid court action .Quote 'I recommend that you deal with this as a matter of urgency as you only have a brief period in which to respond. If you decide not to send the form then you can expect the court to take further action against you to recover the debt.

The form will request to suspend any further action against you and allow you to repay the debt at a rate that is affordable to your current financial circumstances.'

I hope this will support my 'poor advice' claim as I understood the above to mean If I send the form in telling the court of my financial circumstances it would just come back saying 'I see, that's all you can afford so back off Marlin!'

 

If the above is accepted and I am allowed to defend, I have these answers to the POC.

 

'By a credit agreement in writing between HFC Bank Plc (HFC) and the defendant dated 15.11.1999 (The agreement) ( requested twice but not seen yet) HFC agreed to issue the defendant with a credit card upon the terms and conditions setout therein. In breach of the agreement,(?) The defendant has failed to make payments of not less than the minimum payment shown on the monthly statement.( Monthly statements not received for well over a year now so would not know the minimum payment if it bit me on the bottom;)) The agreement was assigned to the claimant on 18.07.08. ( The notice of assignment received by me...not by reg post I might add, states the date to be 20.05.08....this makes the assignment ineffectual as there is a discrepency in the assignment date as stated in s.196 LPA 1925....Stanley v English fibre industries 1899...( I also received a letter dated 28.08.08 stating the assignment date as 18.7.08...so it definitely bears scrutiny)

The claimant served a default notice on the defendant stating the amount due & requiring the defendant to pay the same. (The claimant did not serve any default notices whatsoever. The OC HFC sent two, but they were not served in accordance with s.87/88 of CCA1974 as there was not a full 14 days given to remedy and the minimum payment owed was stated incorrectly on the 2nd notice. )

The defendant failed to pay (Yes) and the agrreement ( yet to be seen) was terminated. (unlawfully)

The claimant therefore claims 1. £xxxx.xx (disputed regardless of default notices etc...no statements....no idea of exact debt....how much is unlawful charges/interest etc.)

2. Interest at the rate pusuant to the agreement, namely 14.56 & continuing until judgement or sooner payment at the daily rate of 1.82 or in the alternative interest pursuant to s.69 of County Courts Act 1984. Also interest at the rate pursuantto the agreement from the judgement date until payment. (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.)

 

Could someone out there now help me put this into 'Draft defence' Speak.

I have read threads upon threads and the 'LAW LINGO' is tying me in knots.

Also, If anyone knows of any more recent cases re the conflicting assignment dates I would be grateful if you could let me know.

I am still researching but the assignment issue is hardest to find info on.

 

Thank you.

[Spamalot]

Thanks R&B...will do.

 

Just posting this so I don't lose it..

1. The defendant�s argument proceeds on the basis that under section 136 of the Law of Property Act 1925, valid notice of an assignment can only be effected if the date of the assignment is stated in the notice. This is wrong as a matter of law: see Van Lynn Developments Ltd v. Pelvis Construction Co Ltd [1969] 1 QB 607. If the notice of assignment describes the assignment by reference to a wrong date, there is authority that the notice is invalid because it has described a non-existent document: see W F Harrison & Co v. Burke [1956] 1 WLR 419 as explained in Van Lynn Developments, supra. Where a copy of the written assignment is sent to the debtor there is no question of misdescription. That is what happened here. The deed was sent to Mr Quinton. That was valid notice of any assignment effected by it, however many dates appeared on its face.
    
    
   
2. The notice of assignment was therefore valid or
   

[Spamalot]

Thanks for PM R&B...have read IGNMs thread and I must admit the defence and skeleton argument make more sense to me than a lot of others I've read.

Now for the really silly questions.

I have applied for set aside and am awaiting a date for the hearing.

When I get that date I assume I turn up with my docs and draft/amended defence etc and they turn up with their oily solicitor.

What has happened in the meantime?

Assuming Marlin have been informed of my intention to defend the claim exactly how much will they have been told?

Will they be aware of my submitted defence or will they find it out on the day?

Then what? If I can convince the DJ I have a good case for defence should he set it aside there and then and we go back to square 1 where Marlin have to re summons me or are we then put in the position where I have to defend myself against Marlin til it's either thrown out or I get oodles of court costs and a slap on the wrists for wasting the courts time?

 

I think I've read so much on the forum now that I have really confused myself!

[Spamalot]

I'm trying to formulate my draft defence and have been looking around the site for Ideas etc.....now I'm a bit embarassed to ask (pardon the pun) but what is an embarrassed defence and when is it used?

I've tried googling it but I just get links to embarrased footballers:D

[Spamalot]

Just got back from hols to find letter from Marlin/MC re my SARS request.

Gotta load of unintelligible bumf...i.e computer printout with dates and numbers that don't make much sense...but one thing has troubled me according to this printout it states I am the sole owner of XX XXXX etc with 1 CHARGE REGISTERED....this is completely new to me and the date of this entry is back in july 08 ....does anyone know if this means I have a charging order on my property that I am totally unaware of or could this mean something else???? :confused:I am really confused because the only court action I have been aware of regarding my debts and my property is this recent fiasco....

Can anyone tell me how I can find out more about this so called charge?

all input gratefully received.

Cheers

[Spamalot]

Thanks R&B, much appreciated, will look into it. I tried land registry but everything costs so much. You'd think if you just want to know something about your own property you could get that for free!....

Anyway, the stuff I have received today is so strange...It's called a factsheet/system notes and it has mini transcripts of phone calls and loads of figures that don't make sense to me. They have also sent me back a copy of the N9a which was filled in by my DMC.

I think it's sort of good news cos they ticked the box for admitting part of the claim and not the full amount but I didn't file a defence so I'm hoping it will somehow support my application for a set aside.

It also has transcripts of where I asked If they would be charging interest and them admitting they would despite the fact that it wasn't awarded and that it was supposed to be a regulated credit agreement (still no sign of the agreement though!!! Thought if the debt was theirs absolute they would at least have a copy! Seems strange they have to keep requesting it:rolleyes:)

Think it's gonna take me a long time to decipher this gobbledegook so if anyone out there has received anything similar from Marlin/MC and understands it please give me guidance.

[Spamalot]

Thanks Hammy/FG.

Since I posted I have checked credit file and apart from this CCJ and the defaults there is nothing else registered against me. I'm assuming that a charging order would appear on there too if there was one. I can only assume that the Charge is something to do with something I found in my deeds which was the previous owners getting a grant from the council for loft insulation and If I decide to rent the house I have to pay them back...this was shown as a charge on my original land reg checks back in 1999.

Still investigating..

FG, thanks for advice re asking for legends etc. I will do that post haste. Can't believe that after all this time they can't supply me with a straight forward statement of the 'Account'

 

onwards and upwards...

[Spamalot]

this is a copy of letter I have drafted to send to Marlin re my SARs response.

is this ok, or would I be better of seeing what they come up with in the set aside hearing?

 

 

Dear Sir/ Madam,

 

With reference to my letter dated 9.4.09 regarding my ‘Subject Access Request’ and your reply dated 23.4.09 I would firstly like to thank you for your prompt response.

 

Unfortunately, the Factsheet/System notes are unintelligible to me and I therefore ask that you please send me the legend for the abbreviations on the log so that I may understand the content of the information supplied.

 

I have requested several times now for a FULL BREAKDOWN of this ALLEGED DEBT. Including amount allegedly owed and how this figure has been calculated. I.e how much were you ‘assigned’ and how much interest has been charged and details of fees and charges added to the account etc.

 

If this information will become clear having received a copy of the legend for the abbreviations then I thank you again, but if not I would again request details of how you have arrived at the figures quoted on previous correspondences and on the particulars of claim submitted to the court.

 

I note that you have also ‘requested’ the copy of my CCA twice (letters dated 6th and 23rd April 2009). Perhaps you could also enlighten me as to why, being the ‘absolute’ owner of this alleged debt, you do not have a copy of this to hand and also copies of the statements from the original creditor?

 

I thank you in anticipation of your speedy reply in this matter.

 

 

 

 

Any thoughts on this please.