Link have a ccj and CO MBNA Card which I am keen to have set aside or appealed

[atom02]

It would be useful to see the copy of the T&Cs they say relate to the account.

 

Post #61 above, page 2. Am afraid that's as good as it is so it is barely legible and does not have one of the supposed clauses am supposed to have breached

[Rhia]

If MBNA has sold a "live" account then it is a completely new departure for them and I don't actually believe this is what they have done. What happens with debts in arrears is they give the cosnumer three months and then have, by law, to issue a default notice as it is regulated under the Consumer Credit Act. Consumer fails or is unable to catch up with arrears and MBNA then allow it to run a few months slapping interest on all the while as this is beneficial to their securitisation operation. We won't go into this here but this is what they do and it's a very bad business.

Once they have got that extra they write it off against their tax bill and sell it on to DCAs such as Link at something like 10p in the £ perhaps less. They should issue a default notice and a notice of assignment to inform you they are selling it off to Link.

Link should then send what they refer to as an "hello" letter in other words saying we've bought this cough up. They then attempt to collect the full amount of the original debt plus any interest they slap on which is unethical, morally dubious but not at all unlawful. I agree with DonkeyB I think an appeal might be a costly waste of time. Why not get all the evidence together and apply to have the judgement set aside as this way you can introduce new evidence.

You need to issue a SAR against MBNA and LINK to see what info that throws up and specifically ask for a copy of the deed of assignment/sales documeny which is the legal document whereby they assign the debts from one to t'other.

Then you can start ripping it apart.

P.S. Have to say there are a number of similar cases popping up on CAG lately and I don't know what to make of it all.

[atom02]

Hi Rhia,

 

It seems I have managed to confuse everybody or maybe I am not explaining myself properly. I have gone through SAR request, s78 and cpr 31.16 - to both companies. I have applied for a set aside during the CO hearing and this was tossed out. I have just applied to withdraw admission and also to set aside. This was just dismissed. Unless you mean I should appeal dismissal of the part of the last application relating to 'set aside'?

 

atom

[atom02]

The problem is that whatever information I get now (and I don't think I'll get more), I'll need to find a judge who will look at it fairly. The million $ question is how

[atom02]

Exactly. The DN is a bit of a red herring UNLESS MBNA can be proven to have terminated the account. Did they inform you they had reduced your credit limit to zero, for example?

 

I have gone back over all the logs and have one entry that says: '150 NOD & TERM Tactical letter sent' - Date: 12/10/2006

 

I don't know what this is i.e. whether it is a threat or an actual DN & TN. It seems they note they also sent a few other 'tactical letters' (90, 120 day, etc)

 

Does this throw any light on your question?

 

atom

[bazaar]

NOD, notice of default, termination ( threato ).

[DonkeyB]

A couple of things.

 

Re the DN – there’s case law at present (Brandon) which is under appeal, but the sad trend is that judges are seeing faulty DNs as de minimis. Of course this is wrong, but the law changes by interpretation.

 

Re the accounts being sold live, ie. before termination – this is increasingly common. I’ve now seen it a few times with Link. Will try and dig out similar threads.

[atom02]

DB - thank you for staying with the thread. I sincerely appreciate it. This couldn't have come at a worse time with the holidays, etc but I hope I can make some positive steps in the window available if it turns out the only route would be to appeal.

 

atom

[RobinWayRobinme]

Well they would, wouldn't they. That does not prove judgment was properly entered.

 

Hi Robin - the Claimant said so.

 

I have read your pm's and thought that the right place to respond was here. IMO you put the cart before the horse with your Application. The main content of the Application was to withdraw your admission because of abc and as far as I can conclude is the DJ dismissed yor application as he did not think your defence would have a reasonable chance of success.

 

In fact, you quoted CPR 13.3 as the rule allowing the DJ to set aside the judgment. 13.3 states that the court MAY set aside a default judgment subject to conditions in 13.3(1)(a) and (b). I'd assume that the DJ was not convinced that you met those conditions although the issue with the DMC may fit in with 13.3(1)(b).

 

From what I have read in your application you have not mentioned CPR 13.2. If you had presented your argument that you served in time an AOS, Addmission, request for time to pay and completed means information, 13.2 gives the court no discretion as it states the court MUST set aside judgment under 13.2 (a). Clearly conditions in 12(3)(1) and 13(3)(3) were not met and the Court MUST set aside the default judgment. The clock would have been turned back to when you received the POC and made your admission. You would have lost the judgment registered against you and the charging order.

 

There was no need to go into any detail about withdrawing your admission until now (albeit it could have been another application to withdraw the admission to be heard imediately after the set aside hearing if the was successful). You already have your argument for withdrawing your admission and the threshold for acheiving a withdrawal of addission at this stage using CPR 14(1)(5) is much lower than that required for 13(3).

 

I hope this makes some sense. It seems that a late appeal may be what you need but I'd suggest that you need help from a specialist solicitor or barrister to get it all knocked into shape because IMO the totally wrong emphasis was placed on your original application and it now makes it very messy indeed. On the face of it and with what was presented to the court, the DJ appears to have made the only decision available to them. Sorry if this sounds a bit harsh but personally I think you need some preofessional help now.

 

I will keep looking in and help wherever possible, but an appeal needs to be very precise with clear argument that challenges the DJ decisiion. In your case, IMO the correct argument was not put to the court in the first place for the right decision to be made. I really hope you can get some professional help with this as I strongly believe that is the best way forward for you.

R

[atom02]

Thanks for the input Robin. I appreciate it.

 

I think the issue about seeking the SA under part 12 was that the court advised the original judgment was not a judgment in default but by determination so the arguments under 12 would not hold.

 

I am seeking some specialist advice and will also take a look at part 14 which I haven't looked at.

 

Very bad timing

 

thanks for looking in.

 

atom

[RobinWayRobinme]

I'd suggest posting up a copy of the judgment so an opinion can be given on this.

 

Thanks for the input Robin. I appreciate it.

 

I think the issue about seeking the SA under part 12 was that the court advised the original judgment was not a judgment in default but by determination so the arguments under 12 would not hold.

 

I am seeking some specialist advice and will also take a look at part 14 which I haven't looked at.

 

Very bad timing

 

thanks for looking in.

 

atom

[atom02]

I assume you mean the typed version (not the transcript). It simply says 'application is dismissed'; costs to claimant'.

The reasons he gave were it has been a while and am doing so in the public interest. He actually agreed with the issues around which a defence would rest.

[Rhia]

Just my two pence and I think Robin has given a good appraisal but since when do Judges make a judgement "in the public interest"? A judge is supposed to make his findings based on the facts of the case and the law. If he hasn't given you a fair hearing we then get into Humans Rights issues and there is also an EC directive which compels a hearing consider all the facts thoroughly.

 

I also agree with Robin that you need an expert on this as it is so complex. Try the bar council for a direct access barrister if you have any money to spare (not neccessarily a lot ofmoney) or pro bono. There are also specialist solicitors who may well take your case on a No Win No Fee basis but I am not au fait with the latter.

[atom02]

Hi Rhia,

 

Thanks for that. I thought the HR route seemed most likely in my layman's view. It seemed he was giving a political view rather than actually looking at the case in front of him. I will try to get something going before the holidays so that I am not fighting to 'appeal out of time' which is a real PITA and of course explore all the avenues suggested.

 

I will update as I can as time goes on.

 

To all who have helped and contributed - my most sincere thanks.

 

atom

[RobinWayRobinme]

No, I mean the original judgment against you that you are trying to get set aside

R

I assume you mean the typed version (not the transcript). It simply says 'application is dismissed'; costs to claimant'.

The reasons he gave were it has been a while and am doing so in the public interest. He actually agreed with the issues around which a defence would rest.

[AndyOrch]

Subbing

 

Get to you shortly Atom

 

Regards

 

Andy

[atom02]

No, I mean the original judgment against you that you are trying to get set aside

R

 

Sorry, my scanner is broken but it says:

 

Judgment for Claimant (after determination)

 

the claimant has objected to the rate of payment you offered.

the court has therefore decided the rate which you should pay. You must pay the claimant xxxxxxx for debt & interest to date of judgment & xxxx for costs less 0.00 you have already paid (I had already made some payments!!)

You must pay the claimant a total of xxxxxx.xx by instalments of xxx.xx pmth

the 1st payment to reach claimants by xxxxxxxx

 

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

 

The court had previously told me (in writing) it was a default judgment pursuant to CPR 12..., and then the determination was made and that the claimant had made a mistake but when I asked for the records this year, they retracted this so there we go.

Edited December 21, 2010 by atom02
to correct omissions

[atom02]

Subbing

 

Get to you shortly Atom

 

Regards

 

Andy

 

Thanks for looking in .... am close to my wit's end with this

[atom02]

I have not been back on here for a while due to many other personal issues. Please does anyone know if a set aside application can be made more than once on different grounds? Any help will be much appreciated

[AndyOrch]

If an application has already been refused then I would leave it at that atom.

 

Regards

 

Andy

[atom02]

Thank you for the reply - it grates to know it failed because I didn't know any better