Fighting A Charging Order MBNA/RESTONS after Redetermination

[Northstar68]

Hi Everyone,

 

I'm new here and was recommended this place. I have spent some time today reading up on the posts in this legal issues section, I am suffering info overload now and feel I need to focus in on my 'issues' with the delightful Alliance & Leicester MBNA/Restons Solicitors.

 

I would appreciate any advice please as this is the first time we are going to court for a hearing....

 

Here's the history:

 

My husband's MBNA Alliance and Leicester credit card debt was about 9 1/2K about 2 years ago, then we hit problems paying due to loss of self employed income/recession. Charges and interest over the last 2 years have increased the total to 14K.

 

Back in May last year we sought advice from the CCCS and token payments began. MBNA were the only ones who didnt accept and issued those Northampton Court blue and white Papers in late August. I knew by then that I was starting a new job on the 1st September 2009 and explained that we would be able to start a Debt Management Plan once we had some disposable income but they still refused.

 

Northampton Court ruled in our favour and ordered we pay the £x a month until the debt clears (MBNA shot themselves in the foot there, great!)

and we have been paying this amount every month since then. (Since Sept 2009)

 

MBNA have now gone for a redetermination hearing which will be in our local court in a little under a month's time. Obviously they are not happy with the previous judgement.

Our DMP with the CCCS began on the 1st of this month and our other creditors are now getting more money per month. We have 11 creditors on our DMP.

 

The CCCS told me it may be a good idea to send a letter to the local court telling them about our DMP and payments etc and to do that sometime very soon so it gets to the court in enough time.

They also told me to send a copy of our DMP to the solicitor of MBNA (Restons) so that they know we have officially started our DMP just in case they decide to stop the hearing........(?)

 

As I'm not that clued up with legal things, would Restons/MBNA care whether we have started our DMP or not? Should I send the DMP info to them or just the court only? I would like to also make the judge aware that the credit card was not used for about 2 years when we first started struggling so the charges and interest alone make up almost 5K which we have started the process of reclaiming but havent heard a thing from them (the letter asking for a list of all charges and interest and £10 cheque were sent early December)

 

I would like to get everything sent off in good time for the judge to have time to read it all.

The hearing is in the first week of Feb.

 

Huge thanks for any advice, much appreciated.

Warm Wishes

Edited March 21, 2010 by Northstar68

[vjohn82]

Hi,

 

Couple of questions for you...

 

1) When was the credit card taken out?

 

2) Have you got a copy of your credit agreement?

 

3) Are you being represented by a solicitor (or did a solicitor represent you previously)?

 

Thanks,

 

vjohn82

[lilly white]

May i ask are you a home owner

 

any ppi or charges

[lilly white]

MBNA pays £225m for Alliance & Leicester credit cards - Business News, Business - The Independent

[Northstar68]

Hi, thank you for your responses,

 

1. We own our own home and pay a mortgage.

2.The credit card was taken out in 1995 or 1996.

3. We dont have a copy of the credit agreement.

4. We have statements going back 7 years.

5. Charges plus interest come to an awful lot, we wrote asking for a list of all charges since the account was opened but have heard nothing yet. It was sent early Dec.

5. No PPI for this card.

6.We have never had to deal with anything like this before so in the first round at court (we didnt need to attend-it was Northampton), we were advised by the CCCS, we simply sent the blue and white forms and our budget/expenditure/list of creditors and debts owned and our offer which the court accepted and obviously drove MBNA mad.

 

We have no one to represent us (solicitor), we really cant afford any because of our hardship situation. So when we go to the hearing in Feb it will be just be my husband and I.

 

The CCCS advised us to send our paperwork at least a week before to the court so the judge has time to read it all. The hearing is only meant to last 10 minutes.

 

I thought back in December to ask for a copy of the CA but wasnt sure because of the time scale and the hearing date coming up so was advised by the CCCS to start the process to claim back the over the limit fees and late payment charges + 8% interest. I sent a cheque for £10 and a letter asking for the full list of charges. No news yet.

 

Hope this helps, many thanks.

[vjohn82]

Ok... the likelhood of them having a consumer credit agreement is next to nill.

 

Do you actually have a CCJ? I didn't read that in your previous posts.

[Northstar68]

Yes there is a CCJ against my husband (it's his card)

and as far as we understand, as long as he pays the £3 a month as set by Northampton Court then MBNA cant get a charging order on the house?

This is where we dont know the legal jargon but in our DMP paperwork this card debt is not included in the DMP and is in the list as a CCJ.

 

I also have the same credit card different account but that one is included in our DMP- although they havent responded in the last few months, they are taking my payments but I suspect they are waiting to see what happens in court in Feb with my husband's debt.

 

So this is why I was advised to ask here just to check that what I am doing is right, I would like us to be in the best possible position when we go to court. We continually told MBNA that we arent running away from our debt, we want to sort it out but in the last 2 years they didnt help. We asked them to change it into a loan but they refused and they twice increased the interest which then started pushing us over the limit. We had an excellent record over the years and hit problems when the recession kicked in and then I lost my job in May last year. It was a very very dark time for us but then we were advised to go to the CCCS so we have been registered with them since April. (sorry for the waffle!)

Edited January 9, 2010 by Northstar68

[lilly white]

may i ask what where you sent in regards to the next case.

[vjohn82]

I'm going to suggest something radical to you (radical for you because of your legal knowledge but not radical for me).

 

Appeal the CCJ... get it removed and get these cretins off your case for good.

 

How do you do this?

 

You make an application to "set aside" the CCJ based upon the fact that you "agreed" with the figure at the time of the CCJ but now you do not.

 

If this is something you would be interested in then let me know and I can help you through the process (having done it myself).

 

If not then I would suggest you keep paying your account at the rate you can afford. The courts will not make an order for more than that. At the hearing you just need to present your income and expenditure list and explain to the judge that you simply cannot afford any more than you are paying.

 

If the Judge agrees then MBNA cannot do anything about it. If the Judge orders you to pay more then you need to come back here for further advice.

[lilly white]

Yes there is a CCJ against my husband (it's his card)

and as far as we understand, as long as he pays the £3 a month as set by Northampton Court then MBNA cant get a charging order on the house?

This is where we dont know the legal jargon but in our DMP paperwork this card debt is not included in the DMP and is in the list as a CCJ.

 

I also have the same credit card different account but that one is included in our DMP- although they havent responded in the last few months, they are taking my payments but I suspect they are waiting to see what happens in court in Feb with my husband's debt.

 

So this is why I was advised to ask here just to check that what I am doing is right, I would like us to be in the best possible position when we go to court. We continually told MBNA that we arent running away from our debt, we want to sort it out but in the last 2 years they didnt help. We asked them to change it into a loan but they refused and they twice increased the interest which then started pushing us over the limit. We had an excellent record over the years and hit problems when the recession kicked in and then I lost my job in May last year. It was a very very dark time for us but then we were advised to go to the CCCS so we have been registered with them since April. (sorry for the waffle!)

 

where you advice of this

[lilly white]

o well here we go

[Northstar68]

may i ask what where you sent in regards to the next case.

 

Hi lilly white,

 

Apologies if I have misunderstood, I havent sent anything yet to MBNA's solicitors or our local court. The hearing is in early Feb so before I do send the paperwork in I just wanted to check what could happen and if I am right to send the same stuff to MBNA's solicitors that I am sending to the local court.

 

The paperwork I am sending will be our budget/expenditure/our debt management plan information/our arrears details all of which shows that we dont have any spare money left once everyone has been paid (which is the same situation when the first hearing took place back in late August), the only difference now is that we are officially on a debt management plan and paying our debts off, albeit slowly! (it's pro rata - the CCCS deal with it, we pay them once a month and they distribute)

[Northstar68]

I'm going to suggest something radical to you (radical for you because of your legal knowledge but not radical for me).

 

Appeal the CCJ... get it removed and get these cretins off your case for good.

 

How do you do this?

 

You make an application to "set aside" the CCJ based upon the fact that you "agreed" with the figure at the time of the CCJ but now you do not.

 

If this is something you would be interested in then let me know and I can help you through the process (having done it myself).

 

If not then I would suggest you keep paying your account at the rate you can afford. The courts will not make an order for more than that. At the hearing you just need to present your income and expenditure list and explain to the judge that you simply cannot afford any more than you are paying.

 

If the Judge agrees then MBNA cannot do anything about it. If the Judge orders you to pay more then you need to come back here for further advice.

 

 

I asked my husband and he thinks we shouldnt contest the CCJ now but wait to see what happens when we go. Although we would love to get rid of the CCJ we are understandably happy with paying £3 a month until the debt is cleared.........what is the likelihood of the judge ordering us to pay more? he/she will clearly see that we dont have the funds for that.....unless we sell our house but we have 2 young children so surely it wont be as drastic as that? (getting a little anxious again now!)

[lilly white]

ok.

 

let us be clear we would defend this with our lives given the info that you given we would build a strong case.

 

we belive that you should not have agreed to ccj.

[Northstar68]

where you advice of this

 

yes we were advised both times by letter but the letter only gave us about 3 weeks notice both times which shocked him so he rang them both times and both times the person at the end of the phone told him 'Dont forget Mr X, we are here to make money from you'

 

((

[lilly white]

please have read,

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/202167-help-n244-form-please.html

[vjohn82]

ok.

 

let us be clear we would defend this with our lives given the info that you given we would build a strong case.

 

we belive that you should not have agreed to ccj.

 

Absolutely... we could go to town on them

 

yes we were advised both times by letter but the letter only gave us about 3 weeks notice both times which shocked him so he rang them both times and both times the person at the end of the phone told him 'Dont forget Mr X, we are here to make money from you'

 

((

 

What absolute **** of the earth... such unprofessionalism. Since when do human beings treat each other like this? It makes me sick to the stomach, it really does.

 

-----------------

 

Anyway, let's see what happens at the hearing. Just present your income/expenditure for now, dress smart and be polite.

 

Let us know the outcome and then we will advise what to do. As I said in my previous post the ideal outcome at this present time is for you to keep paying small payments.

 

If thye get heavy handed I think we should deliver a swift kick to the goolies... and you will have my FULL support throughout for paperwork, legal arguments etc.

[Northstar68]

ok.

 

let us be clear we would defend this with our lives given the info that you given we would build a strong case.

 

we belive that you should not have agreed to ccj.

 

This is where our knowledge of this whole system is so limited. We spent the whole year panicking, then got our act together, got advice from the CCCS and got to today. Contesting anything in those early stages was scary stuff, it still is. If I knew then what I have learned tonight the situation could well be different.

He wants to see what happens in 4 weeks.

 

If we send our DMP info to MBNA solicitors (Restons) then maybe they may think it is useless going back to court and stop it?

Maybe they dont care and will try to get more from us?

So sorry, my head is buzzing and I am aware that I am waffling now!

[vjohn82]

Although we would love to get rid of the CCJ we are understandably happy with paying £3 a month until the debt is cleared.........what is the likelihood of the judge ordering us to pay more?

 

At that rate the debt will be "cleared" in 129 years The judge will weigh this up with what you can afford.

[Northstar68]

Absolutely... we could go to town on them

 

 

 

What absolute **** of the earth... such unprofessionalism. Since when do human beings treat each other like this? It makes me sick to the stomach, it really does.

 

-----------------

 

Anyway, let's see what happens at the hearing. Just present your income/expenditure for now, dress smart and be polite.

 

Let us know the outcome and then we will advise what to do. As I said in my previous post the ideal outcome at this present time is for you to keep paying small payments.

 

If thye get heavy handed I think we should deliver a swift kick to the goolies... and you will have my FULL support throughout for paperwork, legal arguments etc.

 

Yep, he had the phone on loudspeaker, I heard it all and cried for hours after that! It was all doom and gloom then. I have toughened up somewhat since then, hence why I am posting so I know what could happen and what I can do to get us in the best possible position come hearing time.

 

Thank you so much for your support, you cant believe how much strength I have gained from writing with you this evening.

[Northstar68]

At that rate the debt will be "cleared" in 129 years The judge will weigh this up with what you can afford.

 

Technically didnt it mean the debt was written off at the first hearing which I think annoyed MBNA? Had they been a bit more patient they would have been included in our DMP and would have been getting far more per month now, but they werent.

We were so happy to hear that we needed to pay £3 per month until it was cleared. Then the bottom of the judgement said that both parties can appeal, obviously we didnt, they did, hence the redetermination hearing in Feb.

[lilly white]

so they appeal well that good do you have detail and what grounds are they appealling.

 

have they sent you a witness statment we can object

[Northstar68]

so they appeal well that good do you detail and what grounds are they appealling

 

We received nothing else, so we dont know any details.

We got the letter from the court saying that the court accepted our £3 a month payments.

Then about 6 weeks later we had a second letter from the court saying that MBNA have gone for a redetermination and that this will be in early February.

We have had nothing else in the post. We are just waiting for the date to come and of course, paying the £3 a month as ruled by the court.

Many thanks again for your help.

[lilly white]

• Home
  
• Removal of CCJ's
  
• Valid reasons to have your judgements 'set aside'
  

 

Valid reasons to have your judgements 'set aside' (to be used on n244 form)

 

 

Introduction

 

To have your judgement set aside you will need to put forward a reason why. You must keep your reason as clear and simple as possible.

We have listed quite a few valid reasons below.

 

 

1. Were you given 28 days notice in order to pay?
   
2. Were you living at the address when the summons and judgement took place?
   
3. If you took out a loan or any form of credit were you in receipt of the Default Notice before receiving the summons.
   
4. Did you receive the summons? They are not sent by recorded mail.
   
5. Maybe you were unable to attend court and defend yourself.
   
6. The judgement should not appear on the credit files if it was paid up within 28 days.
   
7. If you agreed to settle 'out of court' with the plaintiff you should not have received a Judgement.
   
8. If you did not receive any notification of the judgement/s made against you, then you can appeal.
   
9. Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?
   
10. Was the summons taken out against both yourself and another person jointly. If this is so, did you both receive your summons?
    
11. It could have been that you were away from the time between the issue of the summons and entry of the judgement?
    
12. Did you receive the summons on time for you to apply to the court. You have 21 days to reply to the court. If the summons was 21 days late then the judgement would have already been taken out against you?
    
13. Did somebody use your name or address to obtain credit, which resulted in a County Court judgement without you knowing?
    

 

Lastly...

 

You can use any of the above reasons to have your judgements set aside.

Remember that no correspondence sent by the courts or the plaintiff is ever recorded. In the majority of cases County Court Judgements fail to comply with every detail.

This gives you the chance of having your judgement/s removed foreve

[Northstar68]

Lots of read for me there, many thanks lilly white.