DCA set aside & later questionable solicitor action

[john 333]

original claim - 5 figure sum, had account since '98 (ish), paid on time for years (till mid 08) marriage fell apart, maintenence etc to pay, accomodation for me to find etc etc.

 

paid small amounts direct to mbna, then their dca. restons got involved without my knowledge and got the ccj by default.

 

Have been paying £5 per month to Restons as am on benefits and a carer to my partner who receives DLA and ESA. (Restons know this)

 

The original claim appears to be the same as the new one, but there is some interest added on to the claim. will have to check through my records to see if the claim no. is the same.

 

The new claim came in a normal hand written envelope (with the courts franking stamp on it however) and not one of those official looking brown ones

[DonkeyB]

That means it probably wasn’t issued through Northampton, I’m guessing? If it did not come through bulk, then they should be attaching documents they intend to rely on. What’s the PoC exactly? Where was the claim issued?

[john 333]

claim issued Norwich county court.

 

the claimant claims the overdue balance due from the defendant under a contract dated on or about ##/#/98

the sum of £#####.## inclusive of interest to the date of this summons at 8% per annum from #/#/10 to #/#/10 (these dates i have no idea what they refer to!)

 

+£190 court fee

+£100 solicitors costs

 

the docs I received are: the claim form, admission form, defence and counter claim form, and the response pack. Nowt else

[DonkeyB]

Well, they have mentioned the contract, so it should have been attached.

 

They are claiming an overdue balance. This implies that the account has not been terminated. Odd.

 

Can you dig out the first PoC asap – that will really help.

[DonkeyB]

And can you tell us more about what the debt is for (credit card, loan) and how it all got to this point? Dates, communications, and default notices sent, etc.

 

Have you ever sent a CCA request?

 

We’ll get round to CPR for this shortly.

[john 333]

I never got the 1st POC as it was sent to a previous address. have just found the original charging order paper work and the claim no. is the same

[john 333]

It's a credit card account. Defaulted about 2 1/2 years ago due to divorce etc etc. never had notice of assignment to say that restons had it. They are acting on behalf of mbna. the first letter I ever received from Restons was the interim charging order! Had all the usual nasty calls from mbna telling me to borrow money to pay them etc, they wouldn't accept lowered payments so I didn't pay them anything.

 

I did receive a default notice from mbna but can't find it! (sorry)

 

So far have not sent cca (I know, I know!) but didn't want to wake them whilst all was quiet (5 months ish until today)

[john 333]

from what i've read on here there is a very good chance it's unenforceable. Have got the cca letter done, ready for printing

[DonkeyB]

You can do a CCA, but the CPR should bring out the agreement.

 

MBNA agreements pre-2000 are generally rubbish. Doesn’t look like it has been assigned anyway, so still with MBNA. Is MBNA the claimant? It should be.

 

The default notice is an important step in this. We need to establish what actions MBNA have taken, and when the account was terminated, and how (they are taking court action, so it is terminated; I’m wondering if they are trying the Cabot ‘arrears’ trick – that’s why we need to see the original PoC).

 

As the claim number is the same, it looks like it’s back to square one. If I were you, I would contact the court and get hold of the original claim form to see if the PoC was the same – it should be. They appear not to have applied to alter it.

 

I am also wondering if there are procedural issues on the amount of time – five months – they have taken to reissue what is essentially the same claim with the same number? Can anyone help on this procedural issue? Was the claim effectively stayed, and should Restons have applied to the court to continue? Are there time limits?

 

Have a look through these threads – great primers which will really help you understand what your’re about to do!

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

 

From these threads, you’ll see that you may be able to get up to 56 days to deal with this, so an SAR to MBNA will be a useful belt-and-braces approach to back up CPR, as it should be completed within 40 days if you hit any walls with CPR. Do this asap. A CCA request to MBNA might also be useful, as it will start flushing things out.

[ScarletPimpernel]

Their claim for 8% statutory interest is naughty; it isn't allowed on debts relating to regulated agreements (e.g. credit cards and loans). You'd expect a professional firm of solicitors to know basic stuff like that, wouldn't you?

[john 333]

thanks for that, am just writing a letter to the court now. strangely the amount they are claiming now is £100 less than they were asking for on the first attempt!

 

will look through those threads shortly

[john 333]

Scarlet, they are a bunch of swines so nothing is surprising from them!

 

gonna get my act together on this one, they had my pants down last time

[DonkeyB]

... and we all know what happens when your pants are down and Restons are standing behind you. :eyebrows:

[john 333]

I hear they have shares in vaseline

[john 333]

right, letter to the court is written, what evidence I have is collected. Now to get it posted and see what happens.

Edited November 12, 2010 by john 333

[john 333]

have just received a letter from Restons ...... re the CCA request, and I quote blah blah "your request is returned to you because we are not the creditor, we are a firm of solicitors"

 

It continues "in any event, it may be useful to explain that there is no longer an "agreement" as this was terminated when you failed to comply with the terms of the default notice issued to you by the bank. We refer you to the judgement of his honour Judge Simon Brown QC in Rankine v American Express Europe ltd"

 

well that wasn't what I was expecting at all!

 

any comments most welcome (I have responded to the court to get my 28 days)

[john 333]

any thoughts anyone?

[unclebulgaria67]

Restons if they have been writing to you, should have to deal with a CPR 31.14 request for the documents. If they don't supply in time for the defence to be submitted you will have to enter an embarassed defence.

 

When you have to get in your defence by ?

 

You could speak to community legal to see if you can get help.

 

http://www.communitylegaladvice.org.uk/

[DonkeyB]

The PoC was:

 

the claimant claims the overdue balance due from the defendant under a contract dated on or about ##/#/98

the sum of £#####.## inclusive of interest to the date of this summons at 8% per annum from #/#/10 to #/#/10 (these dates i have no idea what they refer to!)

 

+£190 court fee

+£100 solicitors costs

 

They have mentioned a contract, so they are obliged to provide it. Rankine is completely irrelevant – who the hell are they to decide what a judge may decide is evidence or not?

 

The fact is that the contract is what they are relying on in their PoC, so it should have been attached to the claim form.

 

I would not suggest a simple embarrassed defence, but to follow pt2537’s advice and issue an N244 for them to comply with your CPR request, and to request more time to prepare your defence. Include their nonsensical and downright idiotic response as evidence of failure to cooperate. And as uncleb says, they are the solicitor prosecuting – the fact that they are not the creditor is irrelevant. They are obliged to act on your request.

 

See these threads:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?283443-Embarrased-Defences-and-the-problems-with-them.

 

and this

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here(2-Viewing)-nbsp

[john 333]

thanks uncle and donkey, i'll have a read up on those threads and decide what to do next.

 

just to reiterate, I have never received a notice of assignment, letter of intention or notice before action from these clowns.

 

Also, (and obviously!) the CCA contract or copy was not attached to the POC. My letter informed the court of these ommisions so am wondering about ringing the court in a day or so when they have read it.

 

Am only on about day 2 of my 28

[DonkeyB]

In which case write back and remind them of their obligations, and make clear you will seek the court’s help in forcing disclosure (and that they would be liable for your costs in such a case).

[john 333]

good plan. I will do that and report back. The most irritating thing about all this is that i'm paying them what I can afford each month, and they wont get any more at court (possibly less!) it's just that they are such a--e holes I want to get the judge to rip them a new one. Hence my letter to the court, and my forthcoming complaint to the SRA.

[john 333]

sorry to start this thread up again, not been on the site for months due to wife's illness and other stuff. Just to say that Restons did eventually get a CCJ against me (the judge seemed to be totally on their side) but it's for £5 per month ;-)

 

It's been a long slog and very stressful but given that the judge disregarded virtually every piece of evidence I put forward, not a terrible outcome under the circumstances.

 

It's the amount I offered to pay 2 years ago, and it was nice to stick it up them regarding the charging order!