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

[Spamalot]

Thanks everybody...

 

Must admit I'm seriously nervous.. I shall spend time this afternoon getting my paperwork in order and get everything I need to hand.

 

A copy for me and a copy for the judge..... Nothing for MC is that right?

 

I just hope I'm prepared for every eventuality..

 

Fingers and toes crossed...

 

 

Spam.

[Spamalot]

Tell you what... I'll do a copy for MC but hide it in my bag and only bring it out if it looks like it could be used to my advantage.

 

Thanks guys.

[Spamalot]

Good Luck, hope they don't turn up!! Me Too!!

Take Care

Jon

 

 

Thank you,

 

Spam

[Spamalot]

Morning all.

 

Well THE day is here and the postie has been and this is what he brought.

 

A letter from MC dated 18.8 09

 

Posted, faxed and emailed to XXXXX County Court copy to Spam..

 

*** Urgent Hearing 19th August 2009****

 

Phoenix V Spam

 

We write in reference to the above matter.

 

We can confirm that the Claimant consents to the Judgement dated 25/02/09 being set aside with there to be no order for costs.

 

We do not propose attending the hearing as we have set out our client's representations above and trust that our attendance can be excused in order to save costs. No discourtesy is intended to the court.

 

Kindly place this letter in the court file

 

We thank you for your assistance in the matter and await your directions in due course.

 

MC.

 

 

Obviously I shall still attend.. it goes without saying... but what do I do now???

 

I did want to at least claim my costs for this as I said it cost me almost £200 in applications...

 

20 min hearing = £10 per minute:rolleyes:...

 

Any advice on how I deal with this now would be really welcome..

 

Thanks,

 

Spam.

[Spamalot]

Bl:):)dy hell Spam!

 

I'd say a victory, and as you say attend court and go for your costs!

 

They may consent to the set aside, but I'd say it's not up to them to decide whether they are liable for costs! I don't want to be greedy... just the money back for the applications would do ...

 

Go for it!

 

Cheers

Rob

 

lol....thats excellent....i really hope that does wot it says on the tin spam (all 3 tins lol)....i see where rob is coming from and agree to an extent, but before u started all this wud u have paid that to be rid of it? I agree I would, and I won't push the matter but these so and so's don't deserve to get away with it.. I'd rather give the money to CAG.. and it would be poetic justice if it came from Marlins Pockets..;-)

ur work looks like it has paid off my friend im made up for u...go n get it signed n sealed.

 

Don't forget to take the letter with you Spam, just in case the Judge hasn't got a copy of it in front of him/her. (Unlikely though)

I have it in my sweaty little hand ... I may even laminate it...:grin:

Cheers

Rob

 

Thanks again you two... you've kept me sane... well almost:rolleyes:.. I shall see what the hearing brings.. it's not over 'til the fat lady sings so I will see if I get an opening to apply for the costs of the applications and go from there.

 

I'm still blumming shakin' despite this turn of events..

 

Oh well onwards and upwards.

 

Spam.

[Spamalot]

Hi Spam

 

What time is your hearing scheduled for, does it just say 'afternoon'? (Just so we know when to expect you back )

 

Cheers

Rob

 

Thanks Rob,

 

It's at 2pm... so I should really start getting myself ready and stop playing around on here.... was so tempted to get involved in Craftygirls Phoenix fight but I must stay focused on mine for the mo!!

 

I'll be back...

 

Spam.

[Spamalot]

Well I'm Back

 

Judgement set aside.

 

Very nice lady judge, who read MC letter and said ' The claimant is consenting to the set aside but doesn't say why.. and raised her eyebrows... then she smiled.. That was it!

 

Then she gave the directions that,

 

Judgement be set aside

 

File and serve a Defence by 4pm 16th September,

 

Allocation Questionnaires be completed

 

and then she spoke about costs!!

 

She said she wasn't going to award costs for today unless I had any comments to make... so I said I would like to be reimbursed costs for the applications... didn't want to push my luck..... and she agreed that If I am to win the case the costs of the Disclosure and Admission applications would be awarded... but if I lost I would have to 'swallow' them..

 

I was more than happy with that.

 

This is probably a daft question but...... can I stop paying MC the judgement installments now as one is due at the end of the week?

 

 

 

So... there it is...One chuffed spam :)

[Spamalot]

So Spam, MC Hammered

They did it to themselves..

 

 

Congratulations, you can now give them a hiding with your defence, and then pocket the costs when it's all over! :D

Lets hope so..

Cheers

Rob

 

Congratulations spam, I have just read through your thread and really pleased for you. Having to go to court for any reason can be daunting as I have just been last week myself for something completely different. It does give you the collywobbles doesn't it!

 

So keep the fight on, you got plenty of support on here including me.

 

Thank you.. It's very much appreciated..

 

Real chuffed for you, its good to see people happy and have things go their way every once in a while:D

 

I really can't thank people enough for their support... I genuinely couldn't have got this far without you all.

 

If I'm honest I hope Marlin discontinue... I know I have everything in place to 'whoop their Ass' but I'm not sure I have the confidence to get it accross.. although obviously I would give it my best shot. It was nerve racking enough today even knowing I'd 'won' before I stepped into the courtroom...How weird is that.. I had visions of the Judge saying 'I don't think you've got enough of a defence so I'm going to ignore MC's letter and not grant a set aside... go away Spam!!

 

Anyhoo, I'm certainly glad todays big event is over and I'll await the next twist and turn in the world of Phoenix/Marlin/MC

 

Spam.

[Spamalot]

really pleased for u spam, cant see them asking for another ass whipping given the circumstances and the ending:)

did u mention anything about the amounts u have paid under the court order (or did that come in with the costs?) as i think u r due those back, the judgment now being taken back to the start?

 

Hi R&B,

 

I did ask actually.. I said that obviously I had been paying the judgement with regular instalments and as the judgement was now set aside would I get the money back as they weren't entitled to the money...

 

The Judge said I would have to take advice on that, but assuming I win the case there should be ways of claiming back the money that was paid to them as by law they shouldn't claim money they weren't entitled to..

 

I guess I'm gonna have to wait and see what happens and counterclaim with my defernce for all the monies I've paid to them so far and go from there...:-?

 

Failing that, if they discontinue I may have to put a claim in myself... I'm really not too clear on the situation... I feel more research coming on!!!

 

Spam.

[Spamalot]

guess I'm gonna have to wait and see what happens and counterclaim with my defernce for all the monies I've paid to them so far and go from there... thats the way plus damages.

 

 

Andy

 

Thank you Andy... Thats the way to go then...

[Spamalot]

Well done Spam. It gives me more confidence in my own fight against these idiots. I have given in on 2 cases, but the fight goes on with 2 others

 

Hi Crafty

 

You really must try not to 'give into these idiots' if you stand your ground they will more likely give in to you... they like to see how far they can push you so just keep pushing back and they'll move onto the next poor soul ...

They've thrown in the towel on at least 3 CAG claims this week so have faith in your own.

 

Spam:)

[Spamalot]

Hooray!! Excellent news spam!!

 

You deserve it - you've put in all the work & it's paid off.

 

Don't worry about your defence or costs. We'll all pitch in on the first & on the second, as long as you make sure you serve a comprehensive costs summary to the claimant & the court at least 48 hours before the hearing, you should get everything you've paid under the judgment order plus all your expenses.

 

BTW you don't need to pay Marlin any more but just to cover yourself, drop them a letter stating that the CCJ was set aside & that pending the hearing you are suspending payments.

 

Shout when you need help...

 

Thanks FG...

 

I will be asking for loads of help... Allocation questionnaires... defence... counterclaims....costs..:eek:

 

Will need spoon feeding all the way...

 

And I'll get that letter off to Marlin suspending payments in the morning..

 

Spam.

[Spamalot]

Could you also post a resume of how far you got with your draft defence spam? This thread is so long now, it would be useful to have all the info collated.

 

1. Original POC details

2. CCA (or anything issued as such!)

3. DN - details of issue dates etc - defective?

4. NOA if any

5. Requests for info under CPRs - when, what was requested, what was supplied

6. Any wrongful charges, incorrectly applied interest etc. Also calculate how much you have paid under the CCJ.

 

Good Idea FG,

 

 

I will do... I'll collate it all and get it altogether in one place... do you think it would be worth starting a fresh thread and linking the new one on here

to save all the wading ?

 

Spam.

[Spamalot]

Hi Fedup.... Thanks.

 

It's not over yet though... but the first and I believe worst hurdle has been achieved... getting the judgement set aside was my biggest worry as it was by no way a certainty... just as well they threw in the towel..as I could have got a 'difficult judge'.

 

Lets just see what they come up with now that we're back to square one and I've had my eyes opened..

 

Spam.

[Spamalot]

Minute update..

 

Sent letter to Mortimer Clarke today informing them that due to the set aside I would be ceasing to pay them any monies until such times as a County Court Judge ordered me to do otherwise.

 

Gosh that felt good..

 

Spam.

[Spamalot]

Righty oh... Tidy Up time in preperation of Defence.

 

POC...

 

By a credit agreement in writing between HFC Bank Plc and the defendent dated 15.11.1999 (the agreement)

 

Agreement

 

 

HFC agreed to issue the defendent with a credit card upon the terms and cons. set out therein. In breach of the agreement, the defendent has failed to make the minimum payment shown on the monthly statement. The agreement was assigned to the claimant on 18.7.08.

 

NOA NOA 2

 

 

 

The claimant served a Default notice on the defendent stating the amount due and requiring to pay the same

 

Default 1 Default 2 No default received from Phoenix.

 

 

 

. The defendent failed to pay and the agreement was terminated.

THE CLAIMANT THEREFORE CLAIMS:

!. £8299.65

2.interest at the rate persuant to the agreement namely 14.56 and continuing until judgement or sooner payment at the daily rate of 1.82 or in the the alternative interest pursuant to secton 69 of the county courts acts 1984. Also interest at the rate pursuantto the Agreement from the judgement date until payment.

 

 

More to follow... Spam.

Edited August 22, 2009 by Spamalot
my rate was a rat

[Spamalot]

Hi Me again..

 

For some reason the pop up window to attach files is blocked on my laptop so I will have to post my defences in full.

 

This is the one I had intended to use for my Set Aside...

 

COUNTY COURT CLAIM NO: xxxxxxxx

On Transfer from the

NORTHAMPTON COUNTY COURT

 

 

BETWEEN

 

 

 

Phoenix Recoveries (UK) Ltd

 

 

Sarl-Potomac Recoveries

 

CLAIMANT

 

 

 

And

 

 

 

 

 

xxxxxxxxx

 

 

DEFENDANT

 

 

 

 

 

Respectfully, I wish to apply for a set-aside of the Judgment given in this case to the Claimant at the Northampton County Court Bulk Centre on 25th February 2009.

 

The defendant denies that she is liable as alleged in the Particulars of claim, or at all.

 

In respect of the alleged agreement, a request was made under sec 77/78 of the Consumer Credit Act 1974 on 1.4.09, The Data Protection Act 1998 on 6.4.09, and CPR 31.14 on 30.4.09, 11.05.09 and 19.05.09 for a copy of the agreement. All requests were sent registered post and signed for. A satisfactory copy of an agreement was not produced. It is denied that any such agreement was entered into by Spam and HFC Bank Plc and the claimant is put to strict proof that such an agreement exists.

 

Should it be proved that such an agreement exists, it is denied that the claimant has the legal right to enforce that agreement and therefore is put to strict proof of their rights of ownership by way of a Legal Assignment.

 

A request for the copy of Assignment was made under Data Protection Act 1998 on 6.04.09 and CPR 31.14 on 30.04.09 11.05.09, all requests were sent registered post and signed for, but it was not produced by the Claimant.

I would therefore respectfully seek the Courts permission to request sight of the Deed of Assignment of the alleged debt.

 

In addition, the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in

law per W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169.

 

 

 

The defendant denies that a valid default notice was received from the claimant. The Consumer Credit Act 1974 s. 87 (1) states

(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.

 

A request was made for copies of default notice(s) under the Data Protection Act 1998 on 6.04.09 and CPR 31.14 on 30.04.09, 11.05.09 and 19.05.09 by registered post which were signed for, but none were produced, therefore the claimant is put to strict proof that a valid default notice was issued by the claimant and of the proof of service.

 

 

The defendant also denies that a notice of Termination of the alleged agreement was received. A request for copies of a notice of Termination was requested under Data Protection Act 1998 on 6.04.09 and CPR 31.14 on 30.04.09, 11.05.09 and 19.05.09. All requests were sent registered post and signed for. No Notice of Termination was produced by the Claimant.

 

To Date the claimant has failed to comply with my request under the CPR and Data Protection Act and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

 

 

In respect of the alleged agreement, to which penalty charges have been levied, it is denied that any monies are owed to the Claimant.

 

 

The Claimant also seeks to claim interest under s.69 of the County Courts Act 1984.Statutory interest on a regulated agreement is prohibited in accordance with the county courts (interest on judgment debts) order 1991.

 

The Claimant, possessing no legal right to claim monies allegedly owed, has acted unlawfully in obtaining a CCJ and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. The claimant also claims £154.00 in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial.

I believe that the facts stated in this defence are true.

 

I am the Defendant

Signed

 

And this is the defence I was going to play around with which was shamelessly stolen from IGNM.

 

 

COUNTY COURT CLAIM NO:

On Transfer from the

NORTHAMPTON COUNTY COURT

 

BETWEEN

 

 

 

Phoenix Recoveries U.K. Sarl

 

 

 

CLAIMANT

 

 

 

And

 

 

 

 

 

Spam

 

 

 

DEFENDANT

 

 

 

 

 

 

 

DEFENCE pursuant to Order dated

 

 

 

 

 

] The Defendant admits that she signed a document provided by HFC Bank Limited.It is Not admitted that the Defendant signed an agreement with HFC Bank Limited. The Precise terms and date of any such alleged agreement are not admitted. The Claimant is put to strict proof as to the date and terms of such agreement.

 

2. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act1974. It is denied that the Agreement is enforceable within the terms of the Actin that the Defendant avers that the aforesaid alleged agreement does not contain the Statutory Particulars as to payment, rate of interest and calculation of credit limit. It is further averred that the alleged agreement is defective in that it is not executed by or upon behalf of HFC Bank Limited.

 

3. It is not admitted that the aforesaid alleged agreement was lawfully assigned to the Claimant. The Claimant is put to strict proof that such a Lawful Assignment took place.

 

4. If, which is not admitted, a lawful assignment to the Claimant did occur it is denied that the notice required by the Law of Property Act was served upon the Defendant. It is averred that the notice upon which the Claimant relies was defective in that the date referred to by the said notice is inaccurate thereby rendering the whole notice invalid.

 

5. Further and in the alternativeif, which is not admitted, an enforceableagreement is in existence it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

6. The Defendant is not in possession of a valid Default Notice. It is not admitted that the Defendant was served with a Default Notice pursuant to the Consumer Credit Act 1974. The Claimant is put to strict proof as to the service and content of any Default Notice

 

7. Further it is denied that both the alleged contractual interest and the alleged contractual account charges which have been claimed are lawfully owing in that it is averred that not only is there no contractual basis for the sums claimed but also that the sums claimed are in any event unfair and in breach of the general law.

 

8. In view of the foregoing it is deniedthat the Defendant is indebted to the Claimant as alleged or at all.

 

Counterclaim

 

9. The Defendant seeks a declaration from the Court that the aforesaid agreement is unenforceable in that it does not contain the statutory particulars and is not properly executed.

 

 

Statement of Truth

I believe that the facts stated in this defence are true.

I am the Defendant.

 

 

Signed

 

 

Asyou can see it is a work in progress but it's a start!!!.

 

All input and advice is sincerely welcomed.

 

Spam.

 

Edited August 22, 2009 by Spamalot

[Spamalot]

Hi Spam

 

I thought this was going to be a 'Second' update after your 'Minute' update in post #296 . Ok, I'll get my coat ... Perhaps I should have said My-newt

 

 

 

I know you 'acknowledged' receipt of one or other of the NoA by later referring to it in your letters to Marlin/MC, but there may be some mileage in challenging the assignment and therefore the right of MC/Marlin to act as Claimant in this matter. This is actually where the fun begins... Marlins NOA states assigned 20.5.08 Poc States assigned 18.07.08 HFC say assigned to Carval on 21st May 08...:-? The notification from HFC (19.5.09) with regards to the assignment was as a reply to my SAR.

 

I've replied this morning to this post which seems to mirror my own experience with the shortcomings of MC/Marlin/Phoenix regarding their failure to be substituted as Claimant because of the court dismissing their applications for the same;

http://www.consumeractiongroup.co.uk/forum/legal-issues/216203-setting-aside-charging-order.html

 

Your circumstances are probably different but it might be worth looking into (ISTR this has been discussed in the thread), as it definitely seems at least some Judges are not happy with their paperwork.

 

I'll have a look at that too

Cheers

Rob

 

Thanks again for looking in..Spam.

[Spamalot]

Hi Spam

 

 

 

So not strictly speaking a document which they had previously issued and which they were required to produce as a result of your SAR. It seems they produced it because of your request but had to put that date on it because their system probably didn't allow them to backdate it, or perhaps someone mistakenly 'forgot' to backdate it.

 

Cheers

Rob

 

I think it's just a coinkidink. that they replied to my SAR almost a year after the alleged assignment to Phoenix...

 

19.5.09 is just the date of the letter informing me that they sold the account to Carval on 21st may 2008 otherwise they'd have written to me 2 days before it happened.... I never received any notification prior to that from HFC about them selling the account just the duff NOA from Marlin.

 

I did get a copy of a default as a result of SAR and the date had been changed to 13th March instead of 14th ( I have the original ) which may have snuck them in under the 14 days threshold but the amounts claimed are wrong any way so I'm just using that as back up to prove they like to doctor the documents.

 

Spam.

[Spamalot]

Hi FG,

 

That is a fantastic bit of work, I can't thank you enough...it's superb!

 

I do have a couple of teensy queries though..(probably my fault for not linking it on my tidy up post sorry )... one concerning the LBA.(No. 4)

I did receive a letter from Mortimer Clarke exactly a week before the claim form arrived asking for full payment of alleged debt within the next seven days or they would issue a claim...

 

The letter arrived on Sat 22.11.08 and the claim form arrived the following Sat 29.11.08. I'm assuming that was their LBA albeit that it came out of the blue as they were receiving regular substantial payments... so I'm assuming I won't be able to use that part of the defence?

 

Also..No 5 NOA's.... I didn't receive a NOA from HFC at the time of the assignment...I got it as a result of my SAR a couple of months ago.. would that make any difference to the wording of that part of the defence?

 

As I said... I am truly grateful for all the work you have put into this... I'm just speechless about the way perfect strangers have rallied round to assist... It's so heartwarming after all the bullying from the DCA's...

 

sorry ...gushing over..

 

Thanks again,

 

Spam.

[Spamalot]

Hi all,

 

Just to continue as I need to complete my defence/counterclaim..

 

6. Any wrongful charges, incorrectly applied interest etc. Also calculate how much you have paid under the CCJ.

 

Prior to HFC assigning the account there was a total of £154 in unlawful charges which dated back to 2003.

 

I paid Marlin £90.03 per month from July 2008 via my DMC and up until judgement which was 25th Feb 2009..(£720.24) I continued to pay the same amount per month under the judgement until 25th July 2009. (£450.13) (last payment before set aside).

 

If possible I would also like to claim damages as I have been declined 2 Basic bank accounts. (Nationwide & Co-op) and a job interview because of the reports they have put on my credit file... HFC & Marlin have been updating on the same alleged debt and there's also the CCJ.

 

Any help with regards to my counterclaim would be great,

 

Thank you,

 

Spam:)

[Spamalot]

Thanks again FG...

 

I will have a crack at doing the above but me and spreadsheets don't get on too well.. I'll see if I can get one of the daughters to give me a hand..

 

One query I have about the unlawful charges though... If part of my defence is the lack of agreement, would my asking for the reimbursment of charges to the account be an admission that the agreement exists??

 

Don't want to drop myself in it...

 

The other query is the AQ.. this defence is to be filed and served by the 16th. The judges directions were that the AQ should be sent out to me by 23rd... Is it best to wait for the court to send it out or easier to download it and do the 2 together??

 

Sorry to be a pain..

 

Spam.

[Spamalot]

Thank you Andy,

 

I'll have a go at that too and post it up for you knowledgeble ones to have a look at before I get it sent off.

 

Spam.

[Spamalot]

No probs Spam, you have to be careful how you draft the Defence and Part 20 CC. The order was to set a side the CCJ so tread carfully with regards to its enforcability.Im sure you are aware tht this wil lbe a full defence and not mearly an holding defence,it will not be staight forward!!!

 

Regards

 

Andy

 

Hi Andy,

 

Thanks again... I'm treading as carefully as possible... FG has set out what looks to be an excellent defence a few posts above and I'm just getting to the nitty gritty of the counterclaim.. I don't want to shoot myself in the foot now I've got this far!... Once I'm sure that I've got it all together I'll be asking more questions..and for it to be vetted..

 

I hope to have got it all together by the weekend and ready to send off in time for the deadline of the 16th..

 

It's a nerve racking business.

 

Spam.

[Spamalot]

Just another thought too spam - you might want to get the agreement declared unenforceable under the counterclaim using andy's excellent phraseology of course Excellent Idea FG.. don't want them coming back for a second go if I can help it!!

You know the sections to refer to in the CCA don't you?

 

Off the top of my head... No... but I'll have a scout round and see if I can find it..

 

Thanks again, ;-)

 

Spam.