CCJ - defence due - please help!

[citizenB]

You can also check with the Post office to see if Postal Orders have been cashed..

 

Telephone number 01246 542091.

 

I discovered that when mail arrives at Credit card companies.. cheques/postal orders are removed when the letter is opened , and the letter only is sent on (if at all) to the department that would deal with it. The cheque/po then goes to a separate department.

 

They then automatically say, well there was no PO/Cheque attached..

 

Telephone the post office approx 10 days after you posted the letter.

[citizenB]

OH MY GOD!!!! I have just been looking at my credit record. In respect of my MBNA accounts, the defaults are registered on both accounts on 31 March 2010.

 

The default notices are both dated 9 April 2010 - surely this means my accounts were terminated before the default notices were even printed!!

 

What does this mean for my case, can my credit report be used as evidence??

 

It is my understanding that the Default should be advised to CRAs after they have sent you the Default Notice.. if you fail to remedy. Because that is one of the threats used in the DN.. that they will be reporting to the CRAs if you dont remedy

 

I am not sure of the implications of them registering the Default prior to issuing the DN.. diddydicky, vint1954 may be able to shed light on that.

 

Yes, you can use your Credit reference files to prove points (or disprove them)

[Chipmeister]

This is good to know. You see, I phoned MBNA to give them a piece of my mind after the first shirty letter from Optima and asked them to confirm the date the agreements were terminated. MBNA told me 31 March. When I exclaimed surpirse she hurriedly tried to get me off the phone, telling me to speak to Optima. Hmmmmm! I wonder if I'll get that transcript from my SAR?!!

 

I think I was wise enough to keep the name of the person I spoke to at MBNA, as well as the date and time of the call. This could prove invaluable, especially as the evidence registered with the CRAs indicates that the agreement was agreed on 31 March 2010, as MBNA told me!

 

I have pm'd diddy and vint but not heard back yet. Fingers crossed they will be able to visit soon.

[citizenB]

I havent seen either on the forum today, CM.

 

You should receive as part of your SAR, a communications log. By all accounts this has thrown up interesting and valuable snippets of information. It is a diary of your account history so telephone calls, letters etc, should all be logged.

[Chipmeister]

I havent seen either on the forum today, CM.

 

You should receive as part of your SAR, a communications log. By all accounts this has thrown up interesting and valuable snippets of information. It is a diary of your account history so telephone calls, letters etc, should all be logged.

 

I would hope so, even though the telephone conversation I could be relying on about termination on 30 March was in May, after MBNA claim to have passed all their paperwork to Optima! Oh well, it's no use second guessing, hopefully all these calls will be listed.

 

Oh, surely, if I can prove that the account was terminated before the (invalid) default notice was sent!

[wycombe]

I would hope so, even though the telephone conversation I could be relying on about termination on 30 March was in May, after MBNA claim to have passed all their paperwork to Optima! Oh well, it's no use second guessing, hopefully all these calls will be listed.

 

Oh, surely, if I can prove that the account was terminated before the (invalid) default notice was sent!

 

The calls should be listed but their content may not be obvious. But using their logs you can at least prove they have been made. With my log there is a short comment/precis of the calls content. All such entries, at least with me, are one liners.

[Chipmeister]

Right, accordiong to the Royal Mail website my SAR has been delivered. The CPR requests to Optima are still floating out there in Royal Mail space someone. Pretty poor really methinks.

[wycombe]

If you really want to see if your Optima CPR requests have been delivered you could try ringing the nearest sorting office to the address you sent the letters to. I suspect it is the Post Office being tardy in entering the delivery information so it can be accessed online. Maybe a good moan is in order here (they usually try and fob you off with a 'free' book of stamps) but you should find out what the delay is - or what their excuse for a delay is.

[Chipmeister]

I am trying to get through - to make a complaint on line or via the phone is a nightmare! I may as well have just sent the CPRS by first class mail - they'd probably be there by now

[Chipmeister]

Right, just sent Royal Mail a right rant - I was even crosser by the time I'd found their complaints section (took about 15 minutes!) so they've really had it from me. I may well be appeased if they send me a book of the huge first class stamps they put on my Recorded envelopes!

 

I'm really concerned that this Royal Mail delay will look bad in court. I'm moaning at MBNA and Optima about postage dates - I guess at least with me the court will see I've made an effort to try and do things properly.

 

I know the MBNA letter arrived this morning (the SAR) so I guess it's one of the Bradford sorting offices holding things up now. There were 2 different numbers - I don't know how the postage area divides so I phoned both but couldn't get through on either, hence the generla rant on the Royal Mail website!!

[Chipmeister]

Well, despite what the Royal Mail website says Optima have clearly received my letters, as I received the following, dated 9 July 2010, sent via second class mail, stating the following:

 

"We write in reference to your letters dated 8 July 2010.

 

In reference to your requests for information under CPR 31.14 and CPR 18, we confirm that these regulations come into relevance further into litigation proceedings under a process called "disclosure" and as such the requests are inappropriate at this time.

 

Your letter requesting documentation under section 77-79 of the Consumer Credit Act is being dealt with and the documentation will be forwarded to you on receipt from our client. With regards to the Claim Form we confirm that an extension will be granted to allow you a further 14 days from the date of our letter enclosing documents, to file your response with the court.

 

Please note that if you continue to send unnecessary correspondence this will be brought to the court's attention later in the proceedings."

 

Can anyone please advise the best way for me to respond to this letter?

 

Also, will Optima apply to the court for another 14 days even though I have already filed my defence? I'm not sure that that is in my best interests if they are refusing to provide the info requested under CPR 31.14 and CPR 18.

 

HELP PLEASE!!

 

PS the final paragraph did make me smile...

[Chipmeister]

bump!

[citizenB]

Well, despite what the Royal Mail website says Optima have clearly received my letters, as I received the following, dated 9 July 2010, sent via second class mail, stating the following:

 

"We write in reference to your letters dated 8 July 2010.

 

In reference to your requests for information under CPR 31.14 and CPR 18, we confirm that these regulations come into relevance further into litigation proceedings under a process called "disclosure" and as such the requests are inappropriate at this time.

 

Your letter requesting documentation under section 77-79 of the Consumer Credit Act is being dealt with and the documentation will be forwarded to you on receipt from our client. With regards to the Claim Form we confirm that an extension will be granted to allow you a further 14 days from the date of our letter enclosing documents, to file your response with the court.

 

Please note that if you continue to send unnecessary correspondence this will be brought to the court's attention later in the proceedings."

 

Can anyone please advise the best way for me to respond to this letter?

 

Also, will Optima apply to the court for another 14 days even though I have already filed my defence? I'm not sure that that is in my best interests if they are refusing to provide the info requested under CPR 31.14 and CPR 18.

 

HELP PLEASE!!

 

PS the final paragraph did make me smile...

 

CPR31.14 and CPR18 do not come later under disclosure. These requests for information and further information/clarification are made after proceedings have started and can continue up to the hearing.

 

So we dont go in guns blazing.. what documents did you request on the CPR31.14, just those items referred to in the POC, yes.

 

What did you request on the CPR18.

[citizenB]

CM, I am going to send out a couple of S.O.S's for you. I think you do need to respond to Optima in respect of this, but not sure how.

 

I have just gone back over your thread and see nothing improper in your requests, but Optima have obviously lost the plot.

 

They have brought these proceedings without providing the information required.. regardless of the limitiations of issuing a claim out of the Bulk Processing centre, they are obliged to respond to CPR31.14 and CPR18 requests that have been properly made.. You have been forced to submit an embarrassed defence due to the lack of paperwork and bearing in mind the over riding objectives of the CPR they should provide the information requested.

[Chipmeister]

CPR31.14 and CPR18 do not come later under disclosure. These requests for information and further information/clarification are made after proceedings have started and can continue up to the hearing.

 

So we dont go in guns blazing.. what documents did you request on the CPR31.14, just those items referred to in the POC, yes.

 

What did you request on the CPR18.

 

Hi citizenB,

 

The S77-79 request asked for a true copy of the agreement, "together with any documentation the Act requires you to provide." Not sure what the latter is but I expect I'll only receive a copy of the agreement, if I am lucky. Here I have the backup that Optima defaulted on my request - they returned my cheque and said I had to write to MBNA direct, and I had to quote S175 of the CCA to get them to comply, even then they said they'y need extra time to get the info, as mentioned again in the letter I received from Optima today.

 

The CPR 18 requested a true copy of both of the executed credit agreements and any terms and conditions that applied to the accounts at the time of default and at the time the accounts were opened, true copies of any notice of assignment and / or default notice or enforcement

notice that Optima or MBNA sent me, with a copy of any proof of postage that they hold.

They are probably looking to claim that I am asking for the same documents in 3 different letters but I have reviewed the forum for nost of the evening and haven't seen any cases as yet where a CPR request has been deemed "inappropriate" at this time.

[Chipmeister]

CM, I am going to send out a couple of S.O.S's for you. I think you do need to respond to Optima in respect of this, but not sure how.

 

I have just gone back over your thread and see nothing improper in your requests, but Optima have obviously lost the plot.

 

They have brought these proceedings without providing the information required.. regardless of the limitiations of issuing a claim out of the Bulk Processing centre, they are obliged to respond to CPR31.14 and CPR18 requests that have been properly made.. You have been forced to submit an embarrassed defence due to the lack of paperwork and bearing in mind the over riding objectives of the CPR they should provide the information requested.

 

It seems to me they are looking for me to file an updated defence based solely on the credit agreements - can I request a halt to further proceedings until I receive the results of the SAR?

 

Thanks for your help as ever citizenB, and for calling SOS for me!

[gh2008]

Ok, as they sent their particularised POC separately they are clearly in breach of Part 16.

PART 16 - STATEMENTS OF CASE - Ministry of Justice

PRACTICE DIRECTION 16 – STATEMENTS OF CASE - Ministry of Justice

 

I also expect they did not send a proper letter before claim either PRACTICE DIRECTION – PRE-ACTION CONDUCT - Ministry of Justice

 

Your Part 31 request is totally appropriate, in fact you could ask for physical inspection of those documents with 7 days.

 

Write to the Court, enclosing a copy of their letter to explain that the claimant has agreed to an extension for your Defence.

 

IMHO if you do not receive at least the 2 agreements and the 2 DNs then I would make an N244 application for their disclosure and costs and/or a strike out (you won't get a strike out though)

 

IMHO you should not submit a defence until you have at least those.

 

Once you have those you can construct a proper defence and then put them to strict proof that the amount claimed is correct.

 

Read up on *exactly* what they should be sending in response to your s.78 request - it is not *just* a copy of the agreement

 

As to your reply - depends how aggressive you want to be, you could just state that if they do not comply with your request you will make an application for disclosure (of the docs they should have served with the POC anyway!!! - Part 16)

If you want to be aggressive make a Part 31 request to them for inspection within 7 days 31.15 check the Practice Direction for further info

 

The documents have already been disclosed by them mentioning them in their POC. Disclosure is not sending copies it is mentioning them.

You are not asking for disclosure, you are asking for copies of documents they have already disclosed themselves and therefore should have to hand.....

[gh2008]

C

They have brought these proceedings without providing the information required.. regardless of the limitiations of issuing a claim out of the Bulk Processing centre,

 

They sent the POC separately so the 'online waiver' allowing them not to serve the docs with the POC does not apply

[citizenB]

They sent the POC separately so the 'online waiver' allowing them not to serve the docs with the POC does not apply

 

 

That was well spotted:) thanks for your input, gh. Much appreciated.

[citizenB]

It seems to me they are looking for me to file an updated defence based solely on the credit agreements - can I request a halt to further proceedings until I receive the results of the SAR?

 

Thanks for your help as ever citizenB, and for calling SOS for me!

 

I doubt you will manage to obtain an extension for non compliance of your SAR.

 

Have a read of the advice that gh2008 has posted for you and see how you want to proceed.

[Chipmeister]

GH - thanks for coming to visit my thread and provide some valuable information. I will read and digest, then, as citizenB says, will consider my next moves.

[Chipmeister]

Hi GH, a few questions in red below please:

 

 

Write to the Court, enclosing a copy of their letter to explain that the claimant has agreed to an extension for your Defence.

I have already filed an embarrassed defence - the final day for filing was today and I filed on line on Friday 9 July. Should I write to the court enclosing their letter anyway?

 

IMHO if you do not receive at least the 2 agreements and the 2 DNs then I would make an N244 application for their disclosure and costs and/or a strike out (you won't get a strike out though)

I would hope to get the 2 agreements, I have the 2 DNs.

 

IMHO you should not submit a defence until you have at least those.

I'm afraid I was a bit late in cottoning on to the whole CPR request stuff. In my embarrassed defence I mentioned that I had submitted CPR 31.14 and CPR 18 and that the legal time limits had not yet expired. I also mentioned that Optima had defaulted on my S77-S79 (and that I had to remind them of S175) and had even asked for an extra 21 days to provide the info (as mentioned in my letter from Optima rec today).

Once you have those you can construct a proper defence and then put them to strict proof that the amount claimed is correct.

Understood. As mentioned previously my embarrassed defence has been submitted - will I hear from the court in respect of what I should do next?

Read up on *exactly* what they should be sending in response to your s.78 request - it is not *just* a copy of the agreement

Yes, I thought that was the case. I will review S78 and see what I should expect from Optima.

 

As to your reply - depends how aggressive you want to be, you could just state that if they do not comply with your request you will make an application for disclosure (of the docs they should have served with the POC anyway!!! - Part 16)

I don't want to be aggressive, certainly at this stage. The contents of their letter suggests to me that I am getting on their nerves - they may consider my requests unecessary but reading between the lines I get the impression that they simply can't be bothered. Let's let the court decide who is filing unnecessary paperwork!

I think that writing and quoting Part 16 may be the way forward for now. Presumably I have to give them 14 days to respond to the chaser to the CPR 31.14 request?

Would I have to pay for an application for disclosure? If so, how much please?

 

If you want to be aggressive make a Part 31 request to them for inspection within 7 days 31.15 check the Practice Direction for further info

 

 

The documents have already been disclosed by them mentioning them in their POC. Disclosure is not sending copies it is mentioning them.

You are not asking for disclosure, you are asking for copies of documents they have already disclosed themselves and therefore should have to hand.....

I will note this in my letter.

 

In my letter to Optima I will state that "as you sent the POC separately the 'online waiver' allowing you not to serve the documents with the POC does not apply."

 

I'll try and get a letter put together over the next day or so and post it up for comments.

 

Thanks again for all the help provided so far - it really is appreciated.

[emandcole]

Well, despite what the Royal Mail website says Optima have clearly received my letters, as I received the following, dated 9 July 2010, sent via second class mail, stating the following:

 

"We write in reference to your letters dated 8 July 2010.

 

In reference to your requests for information under CPR 31.14 and CPR 18, we confirm that these regulations come into relevance further into litigation proceedings under a process called "disclosure" and as such the requests are inappropriate at this time.

 

Your letter requesting documentation under section 77-79 of the Consumer Credit Act is being dealt with and the documentation will be forwarded to you on receipt from our client. With regards to the Claim Form we confirm that an extension will be granted to allow you a further 14 days from the date of our letter enclosing documents, to file your response with the court.

 

Please note that if you continue to send unnecessary correspondence this will be brought to the court's attention later in the proceedings."

 

Can anyone please advise the best way for me to respond to this letter?

 

Also, will Optima apply to the court for another 14 days even though I have already filed my defence? I'm not sure that that is in my best interests if they are refusing to provide the info requested under CPR 31.14 and CPR 18.

 

HELP PLEASE!!

 

PS the final paragraph did make me smile...

 

Typical Optima games. Keep that letter won't you, show it to the judge, think they'll be quite interested in that .

 

As you've used CPR 31.14 I presume the claim has been started against you but has not yet been allocated to a track? This would make sense given what you've added above.

 

You have every right to ask for copies of documents. Send them the 31.15 now (ask if you need it or can't find it) and if they fail to respond follow it up quickly with an application to the court for an order forcing them to respond.

 

Include a copy of their snotty letter in support of your application so the judge can see what you're having to deal with, sure it will give the judge a great deal of pleasure approving your application :grin:.

 

If they want to play games with the court use it to your advantage. With your application also submit a draft order that basically says unless the claimant provides the documentation needed the claim should be struck out and wasted costs awarded against the claimant.

 

That should wake Optima up a little.

[citizenB]

I would think yes, you would need to pay for an application to force them to disclose. You would apply on form N244.. I think, I will check that.

 

The letter from them should form part of any defence or complaint you may make to the court.

 

I think that 14 days would be too long.. you are working to a strict time scale. So 7 days is long enough IMHO.

 

Other comments would be appreciated.

[citizenB]

Not an MBNA claim, but some of the things you may encounter have been well deflected in this thread.. More toward the end of thread over the last 4 days.. but read the whole thread to see how it panned out.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/244988-fluffystuffs-oh-hfc-22.html#post3033923