CCJ - defence due - please help!

[Chipmeister]

Dear all,

 

I have read so many different threads and my mind is reeling with all the information I have seen. If I explain my situation I wonder whether someone can advise?

 

A CCJ has been issued by solicitors on behalf of a credit card company, who are looking to obtain a charging order on (presumably) my equity in my property. I received a default notice in respect of the credit card agreement dated on Friday 2nd, requesting that in order to remedy the breach, the creditor must receive the arrears payment of £x by Monday 19, then stating the account balance outstanding of £y.

 

It would appear that the default notice is defective, as the practice directive issued to clarify section 7 of the Interpretation Act 1978 states that service by post is deemed to have been effected, in the case of first class mail, on the second working day after posting, which in this case would be Wednesday 6, giving me only 13 clear days to remedy the breach.

 

First question please - is the above correct and may I use this directive in my CCJ defence? Is this proof enough that the default notice is defective?

 

The default notice stated that "on or after the date shown (being Monday 19), the account will be closed and the credit agreement will be terminated". Upon requesting a copy of the termination notice from the creditors' solicitors, I received another copy of the default notice. Presumably this is sufficient as confirmation of termination, as legal proceedings cannot be instigated unless an agreement has been terminated.

 

Therefore, if the agreement has been terminated on the back of a defective default notice, and the creditor has moved onto the next stage of the legal process, i.e. the CCJ, without legally and correctly completing stage one, i.e. the default notice, then surely the legal action cannot continue as they have failed on the first legal step by issuing a defective default notice. As I understand it, as the account has now been terminated, the creditor would then be unable to rectify the error by issuing a new default notice as the onus was on them to get it right in the first place, and legal action is unable to proceed.

 

I have also heard that where a default notice is invalid then the account terminated, the claimant loses the legal right to the capital sum as they terminated the account without giving the defendant the proper opportunity to mend the breach that led to the default in the first place. All the claimant can claim is any arrears that arose while the agreement was current. Is this unlawful recission? Do I need to have proved that the default notice is defective in order to use this in my defence? Can someone please clarify the leglislation in respect of unlawful recission?

 

Finally, I asked the creditors' solicitors for a copy of the CCA and sent my cheque for £1. They returned it on the day of the 12 +2 day deadline, telling me I'd need to approach the credit card company directly. I had to draw their attention to Section 175 of the CCA 1974, and inform them that they had entered default with my CCA requests. The following day I received a letter from the solicitors confirming they had contacting their client for the information I had requested in my letter and telling me that in order to deal with my request they will require 21 days from receipt of my letter to comply (they acknowledged receipt the working day after my request.) Should this also go in my defence as the CCA was entered into back in 2003 and I would like to have it before any litigation moves forward.

I have found out so much yet a lot has just added to my confusion. Any advice would be gratefully received - I have until Monday to file my defence and I am terrified of messing it up!!

[Chipmeister]

bump!

[Chipmeister]

Hello again,

 

Since posting my thread I have been studying these forums to see if the help I require is already out there. I think my best course of action at this stage, having only until 12 July to submit my defence, is to use the CPR 31.14 request - the total debt is over £5,000 and seems to meet all the relevant criteria.

 

I have also been following Dizzie's thread. If I do not get the CPR 31.14 info before I need to file my defence (this would be impossible as the claimant needs 7 days' notice) do I need to file an embarassed defence at this stage?

 

Presumbaly the CPR 31.14 goes to the claimaint's solicitors who are dealing with the CCJ.

 

Thanks for any help offered.

[Chipmeister]

OK, I have just got to preparing the CPR 31.14 request. I have a question on the following:

 

"If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence."

Does this mean I can't file my defence before Monday or do I go ahead and file an embarrassed defence?

As it is, I can't send the letter today as I am at work and I do not have the particulars of claim with me.

I'm sorry for all these questions, I'm trying to help myself as much as possible but some guidance would be appreciated.

Thanks!

[wycombe]

CPR requests go to the solicitors who issued the claim.

 

If you have not done so send a SAR request to the original creditor (cost £10) and this should reveal all information they hold on you.

 

Send everything Recorded Delivery and note the dates. It is recommended that you do not sign with your 'normal' signature as it has been rumoured some DCA's are pretty adept at producing documents with a recent signatures upon them. This may be urban myth but it is best to cover all eventualities.

 

It might get you more help if you posted copies of the documentation you already have up here using Photobucket or the like. Edit and remove all identifying features - names, account numbers and reference numbers. But with any Default Notice leave the dates as they may be important.

 

So you will need to post POC (Particulars of Claim) the document issued by the County Court and any docs/letters so far received. It will be important to know which bank is suing you and who the solicitors are acting for them.

 

No doubt others will come along and advise as well.

[wycombe]

OK, I have just got to preparing the CPR 31.14 request. I have a question on the following:

 

"If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence."

 

Does this mean I can't file my defence before Monday or do I go ahead and file an embarrassed defence?

 

As it is, I can't send the letter today as I am at work and I do not have the particulars of claim with me.

 

I'm sorry for all these questions, I'm trying to help myself as much as possible but some guidance would be appreciated.

 

Thanks!

 

First you need to acknowledge service. Have you done that? And have you indicated you are defending all? This then gives you extra time to file a defence and to receive a response to your CPR requests. If and when you get a response to the CPR requests that you have made you will then have an idea of what sort of defence to file. You need to get the CPR requests off sharply.

[Chipmeister]

Wycombe, thank you.

 

Yes, I have acknowleged service and advised that I intend to defend the entire claim. I have until Monday 12 July to file my defence.

 

However, I am not likely to get a response from the CPR request before my defence is due and I am therefore uncertain at this stage what to put in my defence.

 

In respect of your previous post, I will scan the docs you have requested sight of and see if I can post them up here - this should throw more light on my case.

[wycombe]

Good CM - Once cagers can see what you are talking about and exactly who we are dealing with here you are far more likely to get clear and concise advice.

 

If you have already submitted your CPR 31.14 you should get a response in 7 days.

 

If not there are plenty of examples of holding defences about (short and sweet embarassed defences) that you can submit. You have probably already found some examples.

[Chipmeister]

I won't be able to submit the CPR 31.14 until tomorrow as I've not got the relevant documents with me. I'm sure I can put together a short and sweet embarrassed defence that will do the job based on the things I have read here.

 

I have to confess that the reason I've not mentioned the credit card company and their solicitors in my thread to date is simply because I was concerned about jeopardising my claim or indeed anyone else's, as I am aware from posts on here that DCAs do read these forums, but I guess I don't need to worry now that my case has moved onto legal action based on an invalid default notice! :grin:

 

When I get home I will look at how to post up the documents the Cagers need to see to help me with my claim against MBNA and their solicitors Optima Legal!

Edited July 6, 2010 by Chipmeister
more info added...

[wycombe]

I have to confess that the reason I've not mentioned the credit card company and their solicitors in my thread to date is simply because I was concerned about jeopardising my claim or indeed anyone else's, as I am aware from posts on here that DCAs do read these forums, but I guess I don't need to worry now that my case has moved onto legal action based on an invalid default notice! :grin:

 

Personally I think people worry too much about DCA's reading these forums. Each case on here is part of a large workload these people have - I do not think they have the time to try and work out who is who on here - except occcasionally and probably only then for their amusement. I suspect they read these forums to get some idea of how LIP's like us will generally argue cases and to see if any new angles have come up that they will need to counter. Each one of us that posts on here is probably very a small cog in their overall litigation machine.

[Chipmeister]

Thanks for the reassurance Wycombe.

 

Judging by some of the rubbish I've received from Optima Legal I'm not even sure I count as a cog in their wheel!!

[Chipmeister]

Wycombe, I do have the default notices with me (MBNA have merged the credit cards into one debt) - hopefully they should be attached.

 

Would you agree that they are defective?

mbna.pdf

[wycombe]

From what I understand about DN's yours are short by one day if mailed by Royal Mail 1st class post. Do you still have the envelopes?

 

Usually MBNA send everything by either UK Mail or 2nd Class Royal Mail. If either of these were used they are even further short. IMHO opinion they are both defective in that respect.

 

I'm sure there will be further opinion to back this up. In fact on my thread towards the end I have been wrestling with the status of my own DN depending on what service was used (though I do have the envelope!!).

[Chipmeister]

From what I understand about DN's yours are short by one day if mailed by Royal Mail 1st class post. Do you still have the envelopes?

 

Usually MBNA send everything by either UK Mail or 2nd Class Royal Mail. If either of these were used they are even further short. IMHO opinion they are both defective in that respect.

 

I'm sure there will be further opinion to back this up. In fact on my thread towards the end I have been wrestling with the status of my own DN depending on what service was used (though I do have the envelope!!).

 

Alas, I don't have the envelope and in hindsight I could kick myself. You see, MBNA had told me to expect the default notices so when they arrived I didn't really think anything of it - at that point I had no intention of defending anything because I wasn't aware that I could. MBNA had always been very kind and understanding on the phone, and even offered to wipe 35% of the debt off if I could pay it to avoid it going to default. How ironic - MBNA trying to help me avoid default!!

 

If Optima Legal had not been as agressive in their pursuit of the debt and wanting to obtain a charging order, I would not have got worked up enough to look into the matter and I wouldn't be here denying the debt today. No one threatens the home I've worked so hard to keep and gets away with it!

 

From memory, the letters, like most MBNA correspondence, came via UK Mail because UK Mail has a special "franking" code in the top right hand corner. However, I have no proof of this so will not be relying on it in court. Working on the basis that the default notices were sent first class makes them defective anyway, so if they did come by UK mail they are, as you say, even further short.

 

Rest assured I now keep every single envelope relating to my case!

[Chipmeister]

Hi all,

 

Have had issues and been unable to scan docs, so will take them to work and scan 'em in first thing tomorrow. I have everything ready so see you all then. Night night!

[indebtandharrased]

Wycombe, I do have the default notices with me (MBNA have merged the credit cards into one debt) - hopefully they should be attached.

 

Would you agree that they are defective?

 

Even if your DN was sent Royal Mail First Class, you should have had until the 27th to remedy the breach.

[wycombe]

With the DN you will need to put the Claimant to strict proof as to how and when it was sent.

 

If you make a SAR this will normally reveal a lot of information you can cross reference with what is being claimed by the solicitors. In my opinion usually £10 well spent. If you have not done so get this off as well as the information this may throw up will help you further down the line. For example the Comms Log should show the time the DN was prepared etc.

Edited July 7, 2010 by wycombe
typo

[Chipmeister]

Do I put the claimant to strict proof in my embarrassed defence or is that one for the court room?

 

I will get the SAR out today - I think I have the address to sent it to from Dizzie's thread. Sounds like I can get some interesting information from this.

 

Please find attached the scanned correpondence in respect of my S77-79 CCA request, with the response from Optima who say they need 21 days from receipt of my letter to comply, even though they are already in breach of the 12 + 2 deadline. Is this the part to use in my embarrassed defence please?

 

Also attached is the extract from the CCJ in respect of particulars of claim. It would seem that as far as my CPR 31.14 request goes, I only have one document to ask for and that is the same document that they are relying on to bring me to court!

 

The particulars of claim on the Court document are mininal to say the least, but you will see that Optima provided more "details" in a separate letter to me which presumably would not have been sent to the Court. Can someone please review these documents and advise if there is anything more to put into my embarrased defence?

 

Also, the particulars of claim do not seem to contain any instruction as to how they wish the Court to proceed - there is no mention of "we want this CCJ so we can put a charge on the property" - do they have to do this?

 

Many thanks for all help to date and to come.

 

CM

Request for CCA & response (2 pages).pdf

Particulars of claim (3 pages).pdf

Edited July 7, 2010 by Chipmeister
Additional info added

[Chipmeister]

Incidently, the claim form was issued on 10 June 2010 and received by me on 15 June 2010. I acknowledged service on 23 June 2010 and have disputed the full amount. I have until 13 July 2010 to file my defence.

[wycombe]

IMHO your defence should counter and point out the flaws in the documents you have already been supplied and if you have been frustrated by the Claimants in your requests for any documents asked for under CPR or S78 requests (the one you pay the £1 for) - point these out. But remember with the latter they only have to provide a copy of what they believe is the agreement.

 

Have a look at Post 81 here:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/254011-wycombe-restons-mbna-5.html

 

You can probably use this as a guide and adapt to your circumstances.

[Chipmeister]

Thanks for this Wycombe.

[Chipmeister]

Hello again,

 

I have attached the Subject Access Request that I intend to send to MBNA by recorded delivery. As I have followed the standard template provided here I am pretty certain that it is fine, though I did add that I wanted transcriptions of all telephone conversations recorded and any notes made in relation thereto by MBNA, as I have had many telephone conversations with MBNA leading up to this during which they were actually very pleasant and understanding! Is it ok to specifically request this, and if so, is the wording I have used ok? Feedback would be gratefully appreciated.

Subject Access Request 07July10.pdf

[Chipmeister]

Attached to this post is my CPR 31.14 request to Optima, which should be read in conjunction with the Particulars of Claim documents scanned in under post 18 of this thread.

 

As they have only referred to to credit card agreements in their particulars of claim, presumably these are the only documents I can claim under CPR 31.14?

 

Also, do the parts in bold in my letter need to be removed as I need to file my defence by 13 July and the timescale I have given is insufficient to allow them to provide the information before 13 July.

 

Clarification prior to my sending the letter would be great!

CPT 31.14 Request 07July10.pdf

Edited July 7, 2010 by Chipmeister
additional info

[Chipmeister]

Finally, based on the information, default notice and particulars of claim documents I have posted here, do I need to send a letter to MBNA in respect of unlawful recission?

 

I note the template provided by vint1954 in Dizzie's thread (post 40) states:

 

"I refer to your Default Notice dated x, posted second class and received by me on y"

 

As I do not have the envelope I can't prove how the default notice was posted, and I simply can't remember what date I received it, as MBNA had verbally advised me to expect it. (This is another part of the reason I added the bit about transcripts of phone conversations in my SAR as it may help me in court.)

 

However, as things are at the moment, am I in a position to send MBNA the unlawful recission letter, based purely on 9 April 2010 being a Friday, 10 and 11 being the weekend and 12 and 13 being the two required posting days? I don't want to commit myself to something I cannot substantiate in court if required.

 

From what I have provided, is there anything else I can base an unlawful recission letter on?

[wycombe]

The SAR should provide you with the Comms log for your account and this should reveal calls made and received with a brief note as to the calls content - but it is not a transcript in any way or form. It is a chronological account of the events up to the time they print off the details - loads of abbreviations many which will be meaningless even with the key they provide. Even so a valuable document for cross referencing everything.

 

Your SAR request seems OK to me. CPR 31.14 seems OK as well.

 

It may be to your advantage to send a CPR 18 as well. Post 10 here:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/254011-wycombe-restons-mbna.html

 

I am sure if their are any flaws in any of this someone will be around to point them out.