Fighting A Charging Order MBNA/RESTONS after Redetermination

[vjohn82]

This is also something you should read:

 

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

[Northstar68]

This is also something you should read:

 

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

 

 

Many thanks vjohn82, much appreciated.

[lilly white]

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/167654-help-ccj-charge-home.html

 

have a read will give more info

[Northstar68]

Many thanks again lilly white. Couldn't sleep much last night, my head was buzzing. Wish I knew all of this 2 years ago, steep learning curve for me but it's good I know it now.

 

Right, now onto the covering letter for the Judge.

We will be sending our budget/expenditure/Debt Management Plan information to the Judge in good time for the hearing.

Never done this before so:

 

1. To whom do I address it to? We have a reference number from the court.

 

2. To whom do I address the cover letter to? Your honour? Sir/Madam?

 

3.In the covering letter is it ok to explain how quickly MBNA issued the court papers and how they didnt accept our token payments/DMP?

Is it also ok to tell the judge that approx 5K of the debt is made up of charges and interest in the last 18 months alone.

Basically, is it ok to tell the Judge in our letter that we have tried to negotiate with MBNA so that we can pay the debt off? (we never ignored it and never missed payments until we had to switch to token payments because of the loss of our work) We tried many times to come to some arrangement, just even to get a bit of time until we were back on our feet but they didnt wait and issed those blue and white court papers anyway so quickly.

 

4. Do we mention in the covering letter that Northampton Court ruled in our favour and agreed with our £3 a month payments? Presumably the Judge in our local court would know that? Or not?

 

I dont want it to turn into many pages but I do want the Judge to have all the information to help our case.

 

Many thanks for any advice, have a good Sunday, keep warm!

[lilly white]

good morning please wait until vj on line.

 

it will be worth the wait .

[vjohn82]

Morning, morning, morning

 

I would think a simple letter would suffice for now. If everything goes pear shaped for whatever reason then we can go into battle mode.

 

I would address the letter to: "The Court Manager" and just plainly state the facts as you know them in the order they happened. You definitely want to mention the judgement at Northampton and that you feel the Claimant is acting unfairly in the circumstances.

 

Post whatever you write here and we can advise on anything you can add/change etc.

[Northstar68]

Morning, morning, morning

 

I would think a simple letter would suffice for now. If everything goes pear shaped for whatever reason then we can go into battle mode.

 

I would address the letter to: "The Court Manager" and just plainly state the facts as you know them in the order they happened. You definitely want to mention the judgement at Northampton and that you feel the Claimant is acting unfairly in the circumstances.

 

Post whatever you write here and we can advise on anything you can add/change etc.

 

Wonderful thankyou.

I reckon I have about a week before I should get things sent off so I will post here when ready. I tend to waffle so it will be great to have my covering letter checked over and also in case I miss anything!

Huge thanks, from becoming anxious again last night I feel more in control again today!

[Northstar68]

Morning All,

 

Hope you are all well. It has been a week since I last posted, I was meant to write the letter to the Court Manager in preparation for the court hearing in 3 weeks.......thank you for your patience, I will get it done and posted today. My uncle died quite unexpectedly on Tuesday morning so I haven't had a chance to sit and think about this letter as my mum has needed a lot of support.

 

But, I am here now and I have made lots of notes and now I need to put them in a good way in this suppporting letter. A bit nervous as I have never written such a letter before so any advice about how to word things or whatever would be much appreciated. I will simply tell it as it is and then we can take it from there.

 

If my little ones allow I will make a start on it now , hope to be back shortly.

Many thanks.

[Northstar68]

Here is the letter, any advice greatly appreciated.

(Also I'm not very good at beginning and ending 'normal' letters let alone letters to a court!)

 

 

Claim No: XXXXX

Claimant: MBNA EUROPE BANK LTD

Defendant: Mr X

 

 

Dear Court Manager,

 

I am writing with reference to the above claim. The Redetermination Hearing will be on xxxxx 2010.

Enclosed please find documentation supporting my defence for your kind attention.

 

About 18 months- 2 years ago I began having financial difficulties when I was unable to find regular work. I am a self employed plasterer. I contacted MBNA a few times to inform them of this and see if they can help relieve the mounting pressure until my work picked up and my wife returned to work (following extended maternity leave). I have been an MBNA customer since 1995.

 

They refused to help and said that the debt must be paid, including all charges and interest at 27%. When I told them again of our financial difficulties making the monthly payments they refused to lower the interest and stopped the use of the card. We had to borrow more money in order to keep up with the payments.

 

This continued until March 2009 when we sought advice from the Consumer Credit Counselling Service. We were advised to pay token payments and send copies of our budget,expenditure and income to all our creditors which explained our financial situation and continue this until we were able to go on a Debt Management Plan.

 

I was still suffering a severe shortage of work then and although my wife went back to work in October 2008, her contract was not renewed in May 2009 which was another serious blow. By now we had mortgage arrears on our home and arrears with council tax, tax and utilities. Time and again I tried to seek help from MBNA but was flatly told 'Don't forget we are here to make money from you Mr X'.

 

The CCCS advised us to continue with the token payments until such a time that we had enough disposable income with which to begin a Debt Management Plan.

 

My wife had managed to secure a new position due to begin on the 1st September. When I informed MBNA of this and our plan to start a DMP which meant that all our creditors were to get an increased monthly payment they told me that this would take too long, they did not want to wait and they would take legal proceedings.

 

I quickly received the court papers from Northampton County Court on the 18th August 2009. I completed them and sent our budget/expenditure/income/list of creditors. On 28 August the court decided the rate at which I should pay the debt and it was kept at instalments of £3 per month. (judgement enclosed)

 

By then the debt had increased from £9000 to £14000 without me using the card at all, it was all interest and charges.

We began paying this monthly amount and heard nothing until 9 October 2009 when we received a letter saying that the claim had been trasferred to XXXX County Court to deal with the claimant's application for redetermination.

 

We have now started our DMP.(papers enclosed)

MBNA were invited to be on our DMP but they refused. I believe they acted unfairly by immediately initiating legal proceedings and continuing to add interest and charges when they had our budget and expenditure details. Their constant phone calls were threatening and they gave no consideration to our situation. (is this too emotional? Should I leave it out?)

Now the ending which I am never good at.....

Thank you for your kind attention. ??

 

Wherever I wrote 'papers enclosed' that means I will be sending the documents to the court.

Also, I wrote this for my husband, it's his card...but I'm the letter writer in the house

Many thanks for any advice on how to tighten or smart this letter up a bit.

[lilly white]

 

 

Claim No: XXXXX

Claimant: MBNA EUROPE BANK LTD

Defendant: Mr X

 

 

Dear Court Manager,

 

I am writing with reference to the above claim. The Redetermination Hearing will be on xxxxx 2010.

 

 

Enclosed please find documentation supporting my defence for your kind attention.

 

can you mark these so the judge can see them,

 

ie 1 ,2, 3 repayment plan etc

 

1 Background

 

About 18 months- 2 years ago I began having financial difficulties when I was unable to find regular work. I am a self employed plasterer. I contacted MBNA a few times to inform them of this and see if they can help relieve the mounting pressure until my work picked up and my wife returned to work (following extended maternity leave). I have been an MBNA customer since 1995.

 

They refused to help and said that the debt must be paid, including all charges and interest at 27%

 

 

. When I told them again of our financial difficulties making the monthly payments they refused to lower the interest and stopped the use of the card

 

 

. We had to borrow more money in order to keep up with the payments.

This continued until March 2009 when we sought advice from the Consumer Credit Counselling Service.

 

 

We were advised to pay token payments and send copies of our budget,expenditure and income to all our creditors which explained our financial situation and continue this until we were able to go on a Debt Management Plan.

 

I was still suffering a severe shortage of work then and although my wife went back to work in October 2008, her contract was not renewed in May 2009 which was another serious blow.

 

 

 

By now we had mortgage arrears on our home and arrears with council tax, tax and utilities.

 

Time and again I tried to seek help from MBNA but was flatly told 'Don't forget we are here to make money from you Mr X'.

 

The CCCS advised us to continue with the token payments until such a time that we had enough disposable income with which to begin a Debt Management Plan.

 

My wife had managed to secure a new position due to begin on the 1st September. When I informed MBNA of this and our plan to start a DMP which meant that all our creditors were to get an increased monthly payment they told me that this would take too long, they did not want to wait and they would take legal proceedings.

 

2 Court action

 

I quickly received the court papers from Northampton County Court on the 18th August 2009. I completed them and sent our budget/expenditure/income/list of creditors. On 28 August the court decided the rate at which I should pay the debt and it was kept at instalments of £3 per month. (judgement enclosed)

 

 

 

3 INCREASE OF DEBT

By then the debt had increased from £9000 to £14000 without me using the card at all, it was all interest and charges.

 

which has not been fully explained to me

 

 

4 Continuing to repay court order

We began paying this monthly amount and heard nothing until 9 October 2009 when we received a letter saying that the claim had been trasferred to XXXX County Court to deal with the claimant's application for redetermination.

 

5 Repayment

We have now started our DMP.(papers enclosed)

MBNA were invited to be on our DMP but they refused.

 

 

6 Conclusion

I believe they acted unfairly by immediately initiating legal proceedings and continuing to add interest and charges when they had our budget and expenditure details.

 

As you can see we are trying very hard to clear our outstanding debts and at this moment cant not afford to pay more

We ask the court to formalised the original decision and we seek an order to continue the payment as set down by that judgment

.....

 

i make this statment in letter form for the courts consideration

 

your name and sign

[lilly white]

Ok The Letters Ok And Left In Your Hand.

 

Please Keep Us Posted. I Will Keep A Watch

[Northstar68]

lilly white, thank you so very much for all your help, advice and tips.

I never would have thought to number each part, it makes it look so much more tidy and easy to read!

 

I will be sending our DMP information to the court with this letter.

I will also be sending our DMP info to MBNA's solicitor Restons.....but can I just check something?

This letter to the court manager is just for the court right?

 

Or should I also send a copy of this letter to MBNA's solicitor? I am of course sending our DMP information to them so they cant plead ignorance about our DMP but I'm not sure about this letter for the court?

 

Many thanks.

[Northstar68]

A little follow up, the CCCS told me today that I do need to send a copy of this letter to Restons as well as the Court Manager so they can't plead ignorance in court.

The thing I was wondering was that we havent received anything from Restons regarding why they took us to court in the first place, we know they want their money, but what is their case for trying to get more from us in this redetermination? My husband would rather just send them our Debt Management Plan information only and send the above letter to the court only.

 

Are we not entitled to see their grounds for their appeal? We havent received anything apart from the redetermination date at our local court whereas by sending them the above letter they will see our grounds for defending....if you see what I mean!

 

Many thanks again for any advice, much appreciated.

[lilly white]

A little follow up, the CCCS told me today that I do need to send a copy of this letter to Restons as well as the Court Manager so they can't plead ignorance in court.

 

yes

 

 

 

The thing I was wondering was that we havent received anything from Restons regarding why they took us to court in the first place, we know they want their money, but what is their case for trying to get more from us in this redetermination? My husband would rather just send them our Debt Management Plan information only and send the above letter to the court only.

 

Are we not entitled to see their grounds for their appeal? We havent received anything apart from the redetermination date at our local court whereas by sending them the above letter they will see our grounds for defending....if you see what I mean!

 

Many thanks again for any advice, much appreciated.

 

i will post a witness statment which was used against these people for

summary judgment have a look will give you pointers

[lilly white]

http://www.consumeractiongroup.co.uk/forum/legal-issues/236433-please-please-help-5.html#post2700982

 

look for mr happys witness statment

[Northstar68]

Many thanks lilly white, my goodness, the legal jargon is quite hard to understand!

 

My husband rang the CCCS again today and we have now had conflicting advise. They said today that we dont need to send the letter to the judge to Restons, just our DMP information which includes budget and expenditure.

For us newbies to this rocky road it is sometimes so hard to know what to do for the best!

They also said I can send it at least 7 days before so I have a few more days before I need to get it in the post.

[Northstar68]

Hello there,

 

Please can anyone advise as to the sorts of questions we may be asked in a redetermination hearing which will last approx 10 minutes?

Just want to prep my husband so he is ready.

 

Basically he has a CCJ against him by MBNA/Restons.

The court ruled last August of the monthly payment he needs to make, all has been going well, he has been paying monthly but MBNA have now gone for a redetermination hearing presumably because they want more money.

We sent all our paperwork to our local court last week, budget/expenditure/details of our debt management plan we are on with the CCCS plus a covering letter outlining the events of the last 18 months with MBNA.

 

In a 10 minute hearing are there likely to be any questions the Judge could ask my husband? (our paperwork was very concise, clearly stated etc)

 

Many thanks for your time.

Warm Wishes.

[Northstar68]

Just bumping me up a bit.

[supasnooper]

Have a look at the links below on Charging Orders and what grounds you may oppose them -

 

Insolvency Helpline

 

National Debtline

 

If Restons have applied for a Charging Order when your husband has been paying the specified amount then Restons are in for a very nasty shock as they should not be doing this.

 

Ther case law for this is Mercantile Credit v Ellis in 1987 - Charging orders in the County Court

Edited February 4, 2010 by supasnooper
typo

[Northstar68]

Well we just got back from the hearing, it was just the Judge and me and my husband.

MBNA/Restons didnt even turn up.

The Judge kept saying sorry, but he said he has to rule 'judgement forthwith' even though he knows that we dont have the money to pay in 14 days and he knows that we have been paying the previous judgement every month since September 2009.He said he was sympathetic but he has to do this and MBNA will now move to the next stage.

I am devastated really, I feel this was too harsh. I'm thinking of the worst thing and it's making me feel sick.

 

Should I post somewhere else on the forum, meaning start a new thread?

The Judge said we will get the paperwork in the post and then we just need to follow the instructions but to make sure we ask to have it in our local court if it is somewhere else.

 

If anyone could get me out of this 'doom and gloom' feeling I have at the moment, I just cant think clearly. I knew we had a good defence but the Judge didnt seem to take notice of any of it. He even looked at all our debts and kept saying that we I am sure he passed judgement by looking at the whole picture instead of just focussing on this one alone. Can he do that????

Sorry, thinking aloud and slightly stressed!

Thank you so much

[Northstar68]

Bumping me up a bit. If anyone could let me know where best to post to get some advice that would be great. Many thanks once again.

[supasnooper]

I'm sorry to read of the Judge you had to endure and of his decision.

 

I'd keep all the info on this thread.

Edited February 5, 2010 by supasnooper
typo

[supasnooper]

I'd be looking for a reason to set aside the Judgment.

 

It will be interesting to read of the Judges reasoning as to his decision for a Forthwith judgment.

 

You may wish to apply for redetermination yourself under CPR 14.13

 

Template letter below, it may need some amending though to suit your case. As far as I know you have 14 days to apply for this

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2146857.html

 

 

 

 

A few things for you to ponder on.

Edited February 5, 2010 by supasnooper
added info

[Northstar68]

Thank you supasnooper!

 

My brain is working overtime now, I am so tired from waiting for today to come, then shocked by the result and now I have to get the strength back to fight this further.

 

I keep trying to make sense of it all.

 

1. We have been paying the monthly instalments set by NOrthampton Court since September 2009, on time.

I'm just thinking aloud here.....trying to make sense of it!

2. MBNA went for a redetermination hearing which was today. The Judge said that the monthly instalments we are paying are ridiculously low and not acceptable and he has no choice but to decide a forthwith judgement even though he knows we cant pay the whole thing in 14 days.

 

3. He commented that MBNA werent even there.........but that it would make no difference.

 

4. He kept saying sorry, we are good decent people and he can see that we are doing all the right things to sort our debts out but this is what he has to do and that we must get legal advice.

 

That is it in a nutshell.

The total debt is a bit over 14K of which about 5K is interest and charges in the last 18 months alone since they stopped the use of the card.

 

He kept referring to our DMP and the other creditors we have and amounts we owe.......could he have based his decision on that too.....should he have......it makes me mad now to think about it.

 

My husband has had this card since 1995 but then some years later they reissued a new card, new number and I think, a new account, he cant remember what he signed for either.

We asked for details of all interest and charges on the account since it was opened but they only went back a few years, not 1995. We havent done anything about that yet, we only got that back last week.

 

I will have a read of your links and have a think, I really want to be ready for when the letter comes about the interim charging order which I think the judge said could happen next.

 

Many thanks again for writing, you made me feel a bit better and gave me a bit of strength to not give up!

[supasnooper]

Another thing to keep you busy......... you could make a start on reclaiming all those charges from MBNA.

 

These claims are not stayed or the subject of the latest Supreme Court bank charges ruling.