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

[foolishgirl]

If you get the opportunity to present a defence, you'll get lots of help. Just read round the forum in the meantime & make sure you gen up on the aspects of the CCA1974, default notices, assignments etc. The more you understand it, the more able you will be to stand your corner in front of a DJ.

[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.

[r&b]

hi spam, looking in gd shape then. FG will im sure have some more excellent advice for u when online but i can help a bit for now:

1. thats what i did and it was fine. didnt need anth else other than relevant docs to get the hearing.

2. what ur trying to do is prove u have a valid defence under 13.3, so as FG says if ur gend up on CCA issues and they have no/poor answers/docs ur half way there. look back at post#70 and get all ur arguments in place. no need to supply docs early can take em with u, but i would make an 'easy reading' bullet point list to have in front of u and supporting docs properly labelled separately, so that u can reference them easily when u get questions fired at u. i ll leave FG to the difficult stuff seems very gd at it lol ...best of luck tho.

[r&b]

spam just a thought and id be interested to hear wot FG thought as well, but u cud formulate a draft defence, in anticipation of the DJ needing clarification on the ponts of CCA1974 and caselaw that u r referencing. my case as u know was adjourned just for that reason but for u it may leave the other side a bit flat footed and prompt the DJ to see your side better and perhaps make a ruling there and then? just a thought as i say.......

[Spamalot]

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

[foolishgirl]

hi spam, looking in gd shape then. FG will im sure have some more excellent advice for u when online but i can help a bit for now:

1. thats what i did and it was fine. didnt need anth else other than relevant docs to get the hearing.

2. what ur trying to do is prove u have a valid defence under 13.3, so as FG says if ur gend up on CCA issues and they have no/poor answers/docs ur half way there. look back at post#70 and get all ur arguments in place. no need to supply docs early can take em with u, but i would make an 'easy reading' bullet point list to have in front of u and supporting docs properly labelled separately, so that u can reference them easily when u get questions fired at u. i ll leave FG to the difficult stuff seems very gd at it lol ...best of luck tho.

 

spam just a thought and id be interested to hear wot FG thought as well, but u cud formulate a draft defence, in anticipation of the DJ needing clarification on the ponts of CCA1974 and caselaw that u r referencing. my case as u know was adjourned just for that reason but for u it may leave the other side a bit flat footed and prompt the DJ to see your side better and perhaps make a ruling there and then? just a thought as i say.......

 

I'm sure you're more up to the mark than I am r&b, having been through it recently but I agree with everything you say above, particularly the genning up on the points of law you need to make in your defence spam (if you get a chance).

 

When you go to the hearing be sure to take 2 x copies of the docs you need as it is not unknown for the court admin to 'lose' stuff & the DJ might need another copy.

 

I would also take any relevant docs from your DMC to support your claim that you didn't know what you were agreeing to at the time of the original summons & also copies of the acts that you will be relying on in your defence. Not all courts have the info. readily available & you don't want the case thrown out 'cos the DJ has no law reference & has to rely on his memory/judgment!! I find it is sometimes easier to print off the clauses you think you may need & have your laptop with you (if poss) with the full acts downloaded. You can then ask permission to use it for reference if you need to.

[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

[foolishgirl]

emails are fine, unfortunately phone calls do not count as evidence, only your statement as to what was said in them (which of course, the other side can deny)

[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.

[r&b]

spam have u looked at this thread, if not may be useful to u:

Arrow Global v IGNM - The Consumer Forums

[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

[fedupwithdebt2009]

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

 

Yes I got lots of things that were "embarrassing"...but not the defence you were looking for!!

[fedupwithdebt2009]

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?

T

 

Spam they will have been served with your original defence if you entered one, after you acknowledeged the claim. so yes they will know you are defending. God I bet Mortimer Clarke solicitor (s) loves opening the morning post to find yet another defence to a claim they have issued!!!!

[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

[r&b]

other than subscribing to a credit agency, i think this might help its a bit small spam but i think u might be able to enlarge it and u can just make the web address and ph number anyway.

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex320_0406.pdf

[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.

[hammyhound]

spamalot,

 

Could you post up the official copies showing the entry regarding the charge and I will have a look for you, take out any personal details of course.

 

HH

[foolishgirl]

J

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????ed.

 

They shouldn't send you unintelligible stuff on your SAR spam. Write & tell them to send the legend for the abbreviations etc. on their log.

I think the 'charge' means the CCJ they have registered, a charging order on your property would prob. be noted as such.

 

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!!!

 

Great, you've got it in writing - will look good in your court bundle. 'Look m'lud, this cheeky DCA thought he could apply extra charges over & above what he was legally entitled to & also what the court had ordered'

[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.

[foolishgirl]

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?

 

No harm in sending it, it will give you more info for your defence if you get your set aside. Suggest amendments as follows:

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.

since it was assigned to you

 

I note that you have also ‘requested’ the OC to supply a 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.

 

 

 

FG

[Spamalot]

Thanks again FG...it does read better that way.

 

I have been looking again at the transcript timeline which is reasonably intelligible and have noted that there seems to be a complete and utter c**k up by my DMC and possibly MC too. would welcome your opinion.

 

posts in red are my notes and those in blue are from transcript.

 

29.11.08...received form N9a...sent to DMC as advised.

6.12.08 received returned N9a from DMC told to sign & send to MC sols without delay.

8.12.08 N9a signed and sent as advised.

 

Having received copy of N9a in SARS request I have noted that DMC has filled in the box for partial admittance with the full amount claimed. (!?!)

 

16.12.08 MCS- part admission received admits xxxx.xx and offers installments of xx.xx.

 

19.12.08 MCS-dbtrs has not filed a defence with p admission-ltr to court requesting judgement be entered in full amount.

 

30.12.08 MCS call received from DMC asking balance. Stated we cannot advise until judgement received. Also asked if received N245. Advised not yet received from court....

 

 

The rest is history.

 

I have not seen hide nor hair of an N245!

Could this show of DMC incompetence be used as evidence towards my set aside?

 

The fact that I wasn't informed by either party that

a) the form N9a hadn't been filled in correctly,

b) in the case of a partial admission the form should have been sent to the court and not to claimants solicitors.

c) The DMC seems under the impression that an N245 was submitted but nobody (including me) seems to have seen it !

 

Should one of the parties involved have informed me that there was something amiss in these proceedings and that the N9a had been filled in incorrectly or is it ok to get a judgement in a hurry before the defendent finds out?

The more I look into this business the more amazed I get!

 

Comments and all advice welcome. ( Apart from Spam's an idiot... should have read the form properly before signing and sending.)

[Spamalot]

Further to SAR. Should I also have been given copies of corres between my DMC and Marlin/MC as they are about me and my finances?

 

I note that there are mentions of faxes and letters between them with offers of payments and rejections but I have not been sent anything in my SAR bundle relating to these actions.

Does anyone know If I am entitled to have copies of these?

 

?????