Marlin/phoenix - Credit Card - N1 Received ** DISCONTINUED **

[Craftygirl42]

We have a CC and have been paying by a DMP. On the 27 Feb 2008 we requested a copy of the CCA. No reply was received and after receiving a LBA we sent the standard dispute letter, their answer to this was to issue an N1. We again asked for the copy of the agreement under the CPR and still nothing. An embarrassed defence has been submitted and an AQ has to be done over the weekend. This will obviously be done as dont want them to sneak a CCJ in

 

We have recieved a Tomlin Order and a letter stating that they have requested the documentation and it will be supplied in due course, but they feel that that having made payments we have admitted the account. Also that we have asked for documentation thats over 6 years old (the CC was taken out in 2003) then we are attempting to frustrate the court proceedings.

 

The tomlin order is again for the same monthly payment we have been paying them, but there is a review clause, which obviously we would request being removed before signing.

 

BUT and a big but, what is the likliehodd that they havent got any documentation, should be hold out to settle for a while and see what happens. Should we sent a letter suggesting a slightly lower offer and see what happens.

 

Advice would be appreciated please

Edited January 29, 2010 by citizenB

[postggj]

wait for more replies on this one

a tomlin order is a legal document

 

sign nothing until you have a cca agreement in your hand

 

ive read some horror stories ref tomlin orders

 

wait for more replies

[42man]

Don't sign a Tomlin order....that has to be a completely last resort CG....it makes no difference if you have paid or not a dispute can be raised at ANY point....And they are ALSO trying to mislead you, by THEM stating that you are asking for paperwork that obviously ISN'T over 6 years old.....

[Craftygirl42]

Please could you give me an idea of the horror stories you have seen re Tomlins. I have another one in the pipeline, but that doesnt have a review clause and I certainly would not be accepting this one without the clause being taken out.

 

Just wondering if there are any other things that I should watch out for.

 

Thanks

[Craftygirl42]

So 42man, are you saying we should just continue with the case as see what happens.

[42man]

Get the judge to order original copies of agreement, proof of service of default notice, assignment etc etc....

 

Did you see this thread - http://www.consumeractiongroup.co.uk/forum/legal-issues/178882-court-claim-received-cl-2.html

[Craftygirl42]

I will have a read up of the thread 42 man. Thanks

[Craftygirl42]

Would you suggest that I just plough on with the AQ and ignore the letter.

 

Or send the AQ and respond 'With Prejudice' that wont be even considering an offer until we have sight of the CCA

[Craftygirl42]

Right, I sent back my AQ ages ago and the court stayed the claim until last Monday in order for the documents to be supplied by Marlin.

 

Surprise, surprise, they have have sent some of the requested items, but have ignored letters requesting the most important ones, ie default notice and CCA. They also sent a letter stating they would advise the court that they had tried to sort out the matter with us and we hadnt complied. This didnt bother me.

 

What my question was, what happens now, does the court then insist that Marlin complete their AQ and provide the documents, or should I be looking to get it struck out.

 

Help and advise would be much appreciated.

[Craftygirl42]

Another update and help need please.

 

The court has stayed this case again until next month, with a view to Mortimer informing them of the progress.

 

Today I received a letter from Mortimer and the bit I need help with is

 

We confirm Default Notices issued by HSBC are standard and in a prescribed format in compliance with the requirements of the Consumer Credit Act 1974. HSBC issuded the default notice to you and it was not returned by the Post Office. The Default notice is deemed validly served even if you did not receive it, in accordance with Section 176 (2) of the Consumer Credit Act 1974.

 

We therefore feel you are making an attempt at frustrating court proceedings by refusing to negotiate settlement without a copy of the Default Notice, this will be disclosed to the court should the matter proceed to trial.

 

In light of the above we provide you with a last opportunity to settle before this claim be allocated to a Fast Track trial where, if our client is successful, you will be liable for further costs. If you are in agreement we require you to sign the enclosed Consent Order within 7 days.

 

I am not signing the consent order as feel there is no proof that a default notice was even sent. Any thoughts on how to proceed with this.

 

I have finally have a copy of the agreement and believe thats in order.

 

Thanks

[citizenB]

I dont know whether the post by BRW will help any.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

I would go so far as to say it is HSBC who are trying to frustrate proceedings.

 

Hw ridiculous to say it was deemed validly served even if you didnt receive it.

[ukaviator]

Craftygirl

 

There will be charges added to this account for late payment, maybe overlimit fees as well. You need to claim these back. Do you have your statements going back to when the account was opened?

[42man]

If the judge orders an 'otherwise' then it might be a good idea to submit an N244 to strike out CG...

[42man]

Is this separate to the other Marlin overdraft debt CG ? I notice you say 'agreement' ?

[Craftygirl42]

Craftygirl

 

There will be charges added to this account for late payment, maybe overlimit fees as well. You need to claim these back. Do you have your statements going back to when the account was opened?

 

 

Yes I do. Marlin kindly supplied these to me

[Craftygirl42]

Is this separate to the other Marlin overdraft debt CG ? I notice you say 'agreement' ?

 

 

42man this is a credit card. The overdraft was sorted via mediation some time ago. That was another thread.

 

The order from the court actually states

 

the claim be stayed until 4pm on X XXXX 2009 when the claimant's solicitors shall inform the court in writing of progress in the claim.

 

 

This is the 2nd time the Court has stayed it. The first ran out earlier this month and now this one. The first one gave them about 2 months respond. They still havent filed an AQ

 

If I was going to apply for a strike out, would you suggest I write now or after the date its been stayed until.

[AndyOrch]

42man this is a credit card. The overdraft was sorted via mediation some time ago. That was another thread.

 

The order from the court actually states

 

the claim be stayed until 4pm on X XXXX 2009 when the claimant's solicitors shall inform the court in writing of progress in the claim. Does it give you 7 days to object ?

 

 

This is the 2nd time the Court has stayed it. The first ran out earlier this month and now this one. The first one gave them about 2 months respond. They still havent filed an AQ

 

If I was going to apply for a strike out, would you suggest I write now or after the date its been stayed until.

Now, make application in opposition to the stay and apply to strike out on the grounds of the Claimants behaviour in this matter.

 

Regards

 

Andy

[Craftygirl42]

Yes it did give 7 days but unfortunately thats well up as I was visiting family and missed the deadline.

 

May find that letter thats on here requesting its struck out and see what happens

[Spamalot]

Hi Crafty...

 

They are definitely dragging their heels on this one.... stand firm and fight back... they will try and convince you that you are in the wrong every time...that is their way, unfortunately many people believe them.

 

If they really had the documents you would have seen them by now..

 

Please, don't let them intimidate you.

 

Spam.

[citizenB]

I have just looked at the DN sent to me by HSBC. From date of the DN to the remedy date is 14 days. There has been no allowance for posting. It was mailed using a UK Mail service which even though marked as "1st" class post, took 6 days to reach me.

 

As far as I can make out, Default notices are automated and processed through HSBC's Bulk Mailing Centre.

 

I guess one question you could ask is for them to advise the policy for sorting and recording returned mail. Especially as they also appear to havae a policy of saying that letters havent been received even where the sender has proof of receipt by way of tracking receipts.

 

I have noticed Default notices sent to other HSBC victims have not given the clear 14 days required by law and that they too have been sent either by 2nd class or UK mail post.

 

In the event you didnt receive a DN, you are entitled to put them to strict proof that it was sent and the dates of both the DN and the remedy date. That isnt attempting to frustrate proceedings, but your right to the information.

 

HTH

[citizenB]

The following link shows a draft order where the DJ has ordered the Claimant to produce not only a copy of the Default Notice but proof of service.. so methinks Marlin are trying it on.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2056007.html

 

HTH

[ukaviator]

Yes I do. Marlin kindly supplied these to me

 

What sort of figures are we looking at here Craftygirl?

[AndyOrch]

What is the claim amount?which track is it likely to be allocated to?

 

 

 

 

Andy

[Craftygirl42]

Its fast track, over £5k. Does that make a difference to how its dealt with

[AndyOrch]

Yes with FT you have more Disclosure / Directions power than SCT (along with costs), see CBs post above.I assume you have submitted your AQ along with your Directions.The Claimant will not commit to the AQ unless they are sure they wish to proceed and that they have all the relevent paperwork in order.What date do they have to submit theirs by? If its past then apply to strike out,thats he penalty for frustrating matters.

 

Regards

 

Andy