CCJ - defence due - please help!

[Chipmeister]

Hi emandcole, responses in red below:

 

Hi,

Not wanting to be pedantic but ideally the 31.15 should be sent just as the 31.15 with no other info or issues amongst it. The 31.15 is clearly a very powerful tool and as such it should be given the space and seperation from other requests/issues etc.

 

If you can perhaps seperate the 31.15 from the rest of the letter that would be great. Certainly feel fre to send the two letters to the claimant in the same envelope but keep the 31.15 seperate from the other bits where you're detailing their failings etc.

Understood - will separate 31.15 from letter.

 

As for the court letter yes, keep them advised as this will be useful in future and documents your efforts nicely. As for content it's short and sweet and as you're wisely enclosing a copy of the letter from wiseguys Optima I'd let that speak for itself. No need to complicate matters at this point.

 

Good job i think .

Thank you, and thanks for all you input - it is much appreciated!

[citizenB]

looking good:D

[Chipmeister]

Excellent!! Letters winging their way by recorded mail as we speak! Thanks again everyone for your help.

[Chipmeister]

Quick questions please folks - I got my credit record printed off last week and noted that on my credit file, the MBNA accounts had defaulted on 31 March 2010. My DN was dated 9 April.

 

I am concerned that I am confusing default on the credit file with a default notice, but when I checked what "8" meant on the credit file it stated that you haven't done enough to sort your arrears and the agreement has ended. Can anyone confirm the correct understanding please?

 

Also hoping someone might be able to advise whether unlawful recission applies in my case from the docs I have uploaded?

 

Thanks all!

[foolishgirl]

Dropping in as requested - late I'm afraid, not in the UK at the moment so, sorry, can't be of more help

 

1. IMO the CPR31.15 is the correct route to go. Watch the dates carefully & get that N244 in if they don't comply spot on.

 

2. You do indeed seem to be getting confused between DN & defaults recorded on your credit file. DN is a statutory notice that has to be issued prior to termination or legal action being taken. A default on your credit file can be recorded at any time after you miss a payment although industry practice usually permits 3 months. They do not have to inform you before marking your file so the fact that the DN was sent after the default appeared on your file is somewhat irrelevant to your case.

 

3. I haven't looked at all your docs yet so can't comment on the recissin angle.

[Chipmeister]

FG, thanks so much for dropping by - your help is much appreciated.

 

The CPR 31.15 went off to Optima yesterday with a cc to the court. Thanks for confirming that I'll need to file an N244 if they don't respond.

 

Thanks also for clarifying the Default and the DN confusion!

 

I don't really understand all the recission part or whether it applies to me- the DN is defective as it didn't allow sufficient time to remedy but the DN did not demand the full balance.

[emandcole]

FG, thanks so much for dropping by - your help is much appreciated.

 

The CPR 31.15 went off to Optima yesterday with a cc to the court. Thanks for confirming that I'll need to file an N244 if they don't respond.

 

Thanks also for clarifying the Default and the DN confusion!

 

I don't really understand all the recission part or whether it applies to me- the DN is defective as it didn't allow sufficient time to remedy but the DN did not demand the full balance.

 

Hi, the unlawful repudiation only really occurs when the creditor uses the invalid default to then demand the full balance, either in a formal manner with a termination notice or by inference (a debt collector demanding the full balance).

 

It is not the issue of the invalid default in itself as this can be replaced with a correct one as long as the account is still live. Its the actual 'we want our money back' bit on the back of the invalid default that creates the unlawful repudiation.

 

[Chipmeister]

Hi, the unlawful repudiation only really occurs when the creditor uses the invalid default to then demand the full balance, either in a formal manner with a termination notice or by inference (a debt collector demanding the full balance).

 

It is not the issue of the invalid default in itself as this can be replaced with a correct one as long as the account is still live. Its the actual 'we want our money back' bit on the back of the invalid default that creates the unlawful repudiation.

 

 

OK. Well, the DN did not demand the full balance, to remedy the breach the arrears were requested so that sorts that out.

 

Presumably the account is now terminated, else they would not have been able to commence legal proceedings against me.

 

However, the DN is defective due to my not having sufficient days to remedy the breach, and my first piece of correspondence from Optima Legal states "we act for MBNA who have instructed us to secure payment from you in the sum of £full amount due", but this was 1 week after the remedy date provided in the DN. I'm assuming this doesn't count as unlawful repudiation?

[vint1954]

Hi Chipmeister,

 

A bit late as I have been away for work.

 

I think you have all the advice that you need now.

 

The DN is clearly defective even if sent first class post, which MBNA never use. They always use UKMAIL, which is a second class service. When they or their agents go on to demand the ballance in full, or terminate the contract, this is an unlawful rescission of contract.

 

I am sure that you have been told, but you have 5 + 14 days to acknowledge the claim then a further 14 days to submit a defence.

 

Your defence may be that you are embarassed as Optima have failed to comply with your CPR 31.14 requirements. Optima then have 28 + 5 days to respond to your defence of the claim is stayed.

 

You must push all of the way for them to disclose documents under CPR.

 

You have used CPR 31.15, I assume to demand physical inspection of the agreement. Keep pushing this and don't give up until they admit they don't have it.

 

Do watch the dates closely. If you miss the defence submission date, they can win by default. You can also apply for extra time through the court, or by agreement with Optima.

 

The last caution is, do understand every argument that you make. You may have to trot this out with conviction, if it comes to court.

 

Vint

[vint1954]

OK. Well, the DN did not demand the full balance, to remedy the breach the arrears were requested so that sorts that out.

 

Presumably the account is now terminated, else they would not have been able to commence legal proceedings against me.

 

However, the DN is defective due to my not having sufficient days to remedy the breach, and my first piece of correspondence from Optima Legal states "we act for MBNA who have instructed us to secure payment from you in the sum of £full amount due", but this was 1 week after the remedy date provided in the DN. I'm assuming this doesn't count as unlawful repudiation?

With the DN being faulty, Optima's letter is indeed the point of repudiation.

[Chipmeister]

Hi Vint, thank you so much for taking the time to visit my thread, and comfirm that unlawful repudiation has in fact occured in my case.

 

I have filed my embarrassed defence and have sent my CPR 31.15 off - hopefully it will be received by Optima tomorrow.

 

One of the great things about this site is that, besides the guidance provided, people post links to CPRs, practice directives etc so from day one I have been able to do my own research and I can certainly say that at this stage, I understand everything I have requested, the reasons why I have requested it and how my requests and the responses will affect my case should it come to court.

 

Now I understand that unlawful repudiation exists in my case, please can someone confirm at which stage of proceedings should I write to MBNA to accept it?

 

If that time is now, is the letter below ok, do I send it by recorded mail and how long should I give MBNA respond to my request?

 

I refer to your Default Notice dated xx 2010, posted second class (this is likely to be true, although I can't actually prove this as I don't have the envelope, should I keep this sentence in regardless? I don't want to harm my case in any way by stating anything that I do not have absolute proof of, unless my SAR (when I receive it) will confirm?) and received by me on xx 2010 (again, I don't know the actual date I received it) and your subsequent termination of the agreement on xx 2010.

 

The default notice failed to give me the required statutory time limit in which to seek legal advice and / or remedy any alleged defect as laid down in the Consumer Credit Act 1974. Your actions resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. The actions that you have taken have resulted in you unlawfully rescinding the alleged agreement.

 

I accept your unlawful rescission of the agreement and, as your solicitors have demanded the full balance due on the back of this defective default notice (is this part overkill or should I play my cards closer to my chest?) I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges) and I would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission.

 

As ever, all advice gratefully received.

Edited July 18, 2010 by Chipmeister
for some reason text was in bold!

[foolishgirl]

Make sure you enter a defence to the court before you write to them or they could just discontinue & then start the process all over again. Once the defence is issued they can't discontinue without a costs issue & they can't reinstate the case without the court's permission.

 

This rehash is what I would then send to MBNA providing that the agreement they have sent is enforceable. (I haven't looked again at your upload) If not, IMO you should not be making any offer to settle:

 

I refer to your Default Notice dated xx 2010 which I note does not comply with the provisons of S87 of the CCA 1974 & the associated Regulations known as the Consumer Credit (Enforcement, Default & Termination Notices) Regulations 1983.

 

The actions that you have taken have subsequent to the issue of thie default notice have amounted to an unlawful rescission of the alleged agreement between us.

 

Please note that I accept this termination & your unlawful rescission of the agreement.

 

You will be aware that in the circumstances you are therefore only legally entitled to claim the balance of the arrears as of the date of the default notice.

 

In order to settle this matter expeditiously, I am therefore prepared to offer you the sum of those arrears as full & final settlement of this matter. Please inform me within 7 days if you wish to accept such an offer but also note that any refusal to do so will be brought to the attention of the court in a vigourous defence of your claim.

[Chipmeister]

Thanks for your input FG. Please see responses in red below:

 

Make sure you enter a defence to the court before you write to them or they could just discontinue & then start the process all over again. Once the defence is issued they can't discontinue without a costs issue & they can't reinstate the case without the court's permission.

I have already submitted an embarrassed defence to the court mentioning that I wish to put the claimant to strict proof in respect of the DN.

 

This rehash is what I would then send to MBNA providing that the agreement they have sent is enforceable. (I haven't looked again at your upload) If not, IMO you should not be making any offer to settle:

I refer to your Default Notice dated xx 2010 which I note does not comply with the provisons of S87 of the CCA 1974 & the associated Regulations known as the Consumer Credit (Enforcement, Default & Termination Notices) Regulations 1983.

 

The actions that you have taken have subsequent to the issue of thie default notice have amounted to an unlawful rescission of the alleged agreement between us.

 

Please note that I accept this termination & your unlawful rescission of the agreement.

 

You will be aware that in the circumstances you are therefore only legally entitled to claim the balance of the arrears as of the date of the default notice.

 

In order to settle this matter expeditiously, I am therefore prepared to offer you the sum of those arrears as full & final settlement of this matter. Please inform me within 7 days if you wish to accept such an offer but also note that any refusal to do so will be brought to the attention of the court in a vigourous defence of your claim.

they haven't yet sent me a copy of my agreement! Should I hold fire on the whole letter?

[Chipmeister]

me again - if my CPR 18 request has also been brushed aside, is there a chaser or does this also go on the N244?

[Chipmeister]

Been reading up on N244 and having a panic - £75 for the N244 application is a lot, particularly when I suspect the court won't accept my request for the set aside I don't qualify for the fee remissions either. I'm guessing the court won't set it aside??

Edited July 19, 2010 by Chipmeister

[foolishgirl]

Been reading up on N244 and having a panic - £75 for the N244 application is a lot, particularly when I suspect the court won't accept my request for the set aside I don't qualify for the fee remissions either. I'm guessing the court won't set it aside??

 

Set aside?? They've not got judgment yet! I thought you would need to be applying for an order for them to comply with your CPR31.15 request? If so, if you apply without hearing, the cost is £40.00.

 

BTW on re-reading your thread Chips, I did notice that they have still not complied with your S78 request. Is that correct? If so & if you applied for this before the claim was issued, they have no entitlement to take legal action to enforce the debt - S78 (3). I don't know if you pointed this out in your defence?

[Chipmeister]

Hi FG, replies in red below:

 

Set aside?? They've not got judgment yet! I thought you would need to be applying for an order for them to comply with your CPR31.15 request? If so, if you apply without hearing, the cost is £40.00.

Sorry, I'm clearly a bit confused. I thought that if they didn't respond to my CPR31.15 request I had to file an N244 asking the court to set the case aside? Have I got this wrong?

BTW on re-reading your thread Chips, I did notice that they have still not complied with your S78 request. Is that correct?

That is correct and to date, I have still not received anything.

My original request was sent on 15 June 2010, when I wrote to them on 30 June and helped them realise that they did actually have to comply, they wrote to me on 1 July saying they would need another 21 days from the date of my letter (being 30 June) in order to comply. As tomorrow is 22 July I will be expecting something in the post, otherwise they've not even kept to their own self-imposed deadlines!

 

If so & if you applied for this before the claim was issued, they have no entitlement to take legal action to enforce the debt - S78 (3). I don't know if you pointed this out in your defence?

Alas, the claim was issued on 10 June and received by myself on 15 June so presumably I've dipped out on S78 (3).

 

[Chipmeister]

Just for information, Optima have now defaulted on the deadline they set themselves for complying with my section 78 request. Unbelievable.

 

I am, however, expecting something through my door either tomorrow or Saturday in respect of my CPR31.15. Can I please clarify the dates - received by Optima on Monday 19 July, should have received response in post no later that Monday 26 July, N244 in post to Court on Monday 26 July via recorded mail.

 

May I please have some advice on how to word my N244 (just in case!) as while I know I am asking the Court to ask Optima for an original copy of my credit agreement I am not sure of the proper way to word it. Also, the N244 asks if I am attaching a draft of the order I am applying for - I am not certain what that means.

 

Any advice gratefully received - many thanks as ever to you all.

[Undercover-Elsa]

Not sure on that score without further checking, but skimming through the thread I would have thought that you were entitled to aplpy for a strike out on the basis that they have no right of action because:

1. The Claim was issued whilst in default of a s.78 request, which is still outstanding.

2. A compliant default notice was not issued, without which they may not terminate the agreement / demand full balance /enforce through the Courts.

Quote the sections of the CCA they have contravened on each point (I'm not on my main PC but could dig them out later if you need help)

 

Just my thoughts..see what the others think...

 

Elsa x

[Chipmeister]

Hi Elsa, thanks for your visit to my thread and for your help. Please see my replies below in red:

 

Not sure on that score without further checking, but skimming through the thread I would have thought that you were entitled to aplpy for a strike out on the basis that they have no right of action because:

1. The Claim was issued whilst in default of a s.78 request, which is still outstanding.

I made the S78 request on 15 June, and the court papers were issued on 10 June (received by me on 15 June) so presumably this point does not count in my case.

2. A compliant default notice was not issued, without which they may not terminate the agreement / demand full balance /enforce through the Courts.

That is certainly true.

Quote the sections of the CCA they have contravened on each point (I'm not on my main PC but could dig them out later if you need help)

I would really appreciate that Elsa, many thanks.

 

Just my thoughts..see what the others think...

 

Elsa x

 

Finally Elsa, your signature did make me smile. I'm trying to be brave and push on with things as logically, it's all I can do, but I have been struggling with the stress of this and life in general over the last couple of days and things have just got on top of me and I want to burst into tears Thanks for the support - I'm feeling a little better now

[foolishgirl]

The Claim was issued whilst in default of a s.78 request, which is still outstanding.

 

Think the claim was issued before the S78 request was submitted - see Post 142.

 

I would wait for the 21 days in which they have stated they will supply CCA to expire before attempting a SO app. although I think Chips may have more chance getting a compliance order under S31.15 than a SO but it's up to Chips which to go for.

 

BTW Chips, did you send a reminder re. supplying info under S31.14? If so, together with the non-CCA production an SO app might win the day.

 

Post back with what you decide on & I'll try & help with the app. details.

[Chipmeister]

Hello again FG, responses in red below:

 

Think the claim was issued before the S78 request was submitted - see Post 142.

 

I would wait for the 21 days in which they have stated they will supply CCA to expire before attempting a SO app.

This time limit expired yesterday! I have not written to them again as my CPR31.15 gives them until Monday 26 July to respond (I know from my recorded delivery that they received my request on Monday 19 July).

 

although I think Chips may have more chance getting a compliance order under S31.15 than a SO but it's up to Chips which to go for.

 

 

BTW Chips, did you send a reminder re. supplying info under S31.14? If so, together with the non-CCA production an SO app might win the day.

I wrote and told them that as they had not complied with my request under CPR 31.14 I was exercising my rights under CPR31.15. I also copied the Court in on this letter and my CPR31.15 request.

 

Post back with what you decide on & I'll try & help with the app. details.

I think the above would be enough to apply for a strike out?

 

 

If I go for the strike out at this stage, is it likely that I will win???

 

Having been looking at Carey v HSBC I suddenly don't feel very confident, although perhaps my CPR requests overide my S78 request? I'm so confused and feeling a bit wibbly right now...

Edited July 23, 2010 by Chipmeister
added info

[Chipmeister]

Further update - OH has just texted to advise that there's nothing in the post for me from Optima. This presumably means that I'll either get something tomorrow or Monday....????? Monday 26 July - CPR31.15 deadline up as they received request by recorded mail on Monday 19 July.

[Undercover-Elsa]

Have just read all through this thread and I'm apalled at the way you've been treated. You have a great team helping you, thankfully

Sorry, I misread about the CCA request.

The DNs are faulty but not sure it's a strong enough argument on its own for a strike out, due to judicial ignorance on the subject.

They are just bulldozing through this regardless. That letter stating they are taking you to Court to get a Charging Order is surely one for a complaint to the OFT. Blatantly ignoring the fact that they have to get a CCJ first, and then you have to fail to maintain payments before they can apply to the Court seperately.

I fervently hope you put these monsters in their place..back at the bottom of the swamp!

All the very best,

Elsa x

[Chipmeister]

Elsa - thanks for the support. The CCJ doesn't even specify what Optima are looking to acheive - they seem to think they can put a charging order on the property regardless.

 

Maybe copies of this correspondence, the fact that they did not send a proper letter before action plus the refusal to comply with CPR31.14 and CPR18 (plus the fact that if I receive nothing by Monday they will not have complied with my CPR31.15) may be enough to move forward with a strike out?

 

I'm not keen to push forward under S78 with Carey lurking under the surface...