CCJ - defence due - please help!

[Chipmeister]

That letter stating they are taking you to Court to get a Charging Order is surely one for a complaint to the OFT.

 

I will send a copy to the OFT. My fight is returning!!!

[wycombe]

Good CM - Fight them with every tool in the shed.

 

They will allow you no leeway whatsoever. Follow the advice of that great strategist Von Clausewitz - Attack is the best form of defence!

[vint1954]

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.

They will basically ignore your CPR31.15 requests to inspect the document. As each deadline passes, write to them reminding them of their failure.

 

They will eventually admit that their client routinely destroys its agreements after scanning. Silly them.

[vint1954]

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...

If they have not obtained judgement, then there can be no CCJ in place.

 

If issued through Northampton, they have issued a Money Claim.

 

They are puting the cart before the horse. They need judgement before they can apply for a charging order and that is only usually granted if you fail to adhere to a court order for payments, or realistically have no chance of paying the judgement off over a period as it is so large.

[vint1954]

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...

If you are at court stage, s78 will not be apprropriate. Use CPR

[Undercover-Elsa]

Morning Vint

TBH I was gobsmacked by this case..putting two Cards on one claim for a start..not seen that before..didn't even know it was allowed, as the combined totals could change the track and therefore presumably potentially increase the costs?

Elsa x

[vint1954]

Morning Vint

TBH I was gobsmacked by this case..putting two Cards on one claim for a start..not seen that before..didn't even know it was allowed, as the combined totals could change the track and therefore presumably potentially increase the costs?

Elsa x

Good Morning Elsa,

 

Yes, you are correct. They cannot put 2 accounts on one claim. The only exception that I could see to that was that if a third party owned 2 of your accounts, then to them it is wrong, but dodgy all the same.

[Chipmeister]

Oh my goodness! The plot thickens! The PoC details the individual card amounts due but the Money Claim does indeed add both together. Is this something to point out to the court as well? What directives / laws are being broken here please??

 

I'm not going near S78 now - I have requested the same info via CPR31.14 and CPR 18 (which they have already said is inappropriate and both deadlines have now passed) and by CPR31.15, the deadline for which expires Monday 19 July. Nothing received in the post today so can I proceed with my N244? If so, may I please ask for some assistance in completing the N244? If I can blow them out of the water at this stage it would be great.

 

Under the S78 request ruling, not only did they miss the deadline from my original letter of 15 June, but they are way over their self imposed deadline for acting on the S78 request (ie 21 days from the date of receiving my letter, being 21 July). Hence I am now following up under CPRs.

 

In respect of my offer made to Optima, one of their letters stated that if I only paid £10 per month it would take me 94 years to clear the debt, so I think they are going for the charging order based on my realistically having little chance of paying the debt off over a period as it's so large. That said, OH could get a job tomorrow and our entire circumstances could change! OH losing his job has been the main reason I've ended up in this stew, as I've single handedly had to take on the mortgage and other priority payments out of my sole salary. Optima don't care about that, doubt the court would either to be honest - courts generally don't do sob stories do they?!

 

If MBNA routinely destroy their agreements after scanning, if I N244'd Optima would they have to 'fess up to the court rather than to me? I wonder how the court would deal with that?

 

Any and all advice gratefully received, and thanks again to all who have reponded so far - I'd never have learnt so much and got so far without you!

 

All the best,

CM

Edited July 24, 2010 by Chipmeister

[gh2008]

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

 

Whether you like the S78 angle or not, whilst they are in default of an S78 request they cannot get a judgement against you - end of.

 

BUT the problem with that is that it may be redeemable therefore you need more than just that (unless you know that they will never be able to comply, in which case that's all you will need)

[gh2008]

Is the POC on the thread?

[Chipmeister]

Is the POC on the thread?

 

Yes, please see post 18 of this thread.

[Chipmeister]

Please see replies in red below:

 

Whether you like the S78 angle or not, whilst they are in default of an S78 request they cannot get a judgement against you - end of.

OK - good to know.

 

BUT the problem with that is that it may be redeemable

sorry, not certain what that means?

 

therefore you need more than just that

such as not acting on my CPR31.14 and CPR31.15 requests?

 

(unless you know that they will never be able to comply, in which case that's all you will need)

How will I know that though? Or will this be through not responding to an N244 asking the court to make them comply with my CPR31.15 requesting sight of the original document?

 

By the way, assuming nothing lands on my doormat from Optima on Monday 26 (having received CPR31.15 request on Monday 19) if I were to file my N244 with the court by recorded mail on Monday 26, what would happen if I received a letter from Optima on Tuesday dated prior to the expiration of the CPR31.15 deadline?

Edited July 24, 2010 by Chipmeister
extra question addded - sorry!

[gh2008]

Ok, part of your N244 will also include their breaches of CPR16.

 

As they sent the POC separately from the MCOL system they should have included all the documents.

 

Have you checked with the Pre-Action Conduct PD and made sure they have in fact done what they have said?

 

IMHO there is no issue with bundling the 2 into the same claim as long as the details are clear.

Same as issuing a claim against a client for non-payment of several invoices - as long as the details are clear then it will be fine.

 

Obviously in this case it is not clear as they have not complied with the Pre-Action Conduct PD nor Part 16

[gh2008]

If you feel bolshy then ring them and demand to know why they have not complied and then make it very clear that you will seek an order against them together with costs.

 

Redeemable would mean that even on the day, they could turn up with a perfect response for each of the accounts.

If you knew they couldn't e.g. there never was a signed agreement then obviously that changes things.

 

You will not get a Strike Out with your app, if that's what you were thinking of. You *may* get an unless order

 

Unless the Claimant do lots of things by a set date their claim will be struck out without further order

 

Or a similar order without the unless, i.e. just a The claimant must .....

 

There is no reason whatsoever that the Court will refuse the application -

1. they should have been submitted with the POC

2. without the docs the claimant cannot prove their case and the Court cannot make a 'fair' judgement.

[Chipmeister]

Hi GH, answers in red below:

 

Ok, part of your N244 will also include their breaches of CPR16.

As they sent the POC separately from the MCOL system they should have included all the documents.

Which they didn't.

Have you checked with the Pre-Action Conduct PD and made sure they have in fact done what they have said?

I have indeed, and in the covering letter sent to Optima with my CPR31.15 request I have pointed out their failures under CPR16 and the relevant practice directive. A copy of this was also sent to the court.

IMHO there is no issue with bundling the 2 into the same claim as long as the details are clear.

Same as issuing a claim against a client for non-payment of several invoices - as long as the details are clear then it will be fine.

 

Obviously in this case it is not clear as they have not complied with the Pre-Action Conduct PD nor Part 16

Righto!

[Chipmeister]

Replies below in red:

 

If you feel bolshy then ring them and demand to know why they have not complied and then make it very clear that you will seek an order against them together with costs.

I am feeling bolshy but I don't want to ring them, mainly because I specified in my of my earliest letters that I wanted all correspondence between us in writing to avoid any potential misunderstandings by either side. I will write though, I get the feeling my letters are starting to get on their nerves.

 

Redeemable would mean that even on the day, they could turn up with a perfect response for each of the accounts.

If you knew they couldn't e.g. there never was a signed agreement then obviously that changes things.

Thanks for confirming that.

 

You will not get a Strike Out with your app, if that's what you were thinking of.

To be honest, I didn't think I would - I just want to be sure that the £40 I'm going to scrounge in order to file the N244 is going to be used in the best way to obtain the best results.

 

You *may* get an unless order

 

Unless the Claimant do lots of things by a set date their claim will be struck out without further order

 

 

Or a similar order without the unless, i.e. just a The claimant must .....

 

There is no reason whatsoever that the Court will refuse the application -

1. they should have been submitted with the POC

2. without the docs the claimant cannot prove their case and the Court cannot make a 'fair' judgement.

This is clearly the sensible way forward.

[Chipmeister]

Afternoon all.

 

Well, CPR31.15 received Monday 19 July, reply due by Monday 26 July, and the postman has been and gone and no response received from Optima.

 

So, to work on my N244 I guess.

 

In the N244 can I request the ORIGINAL agreement, and state categorically that I do not want a reconstituted or reconstructed copy - am I actually allowed to do this? I get the feeling that they will not have such a document as the agreeements date back to 2002 / 2003. Therefore, if the ORIGINAL agreement which I am entitled to ask for isn't produced, (and how could it be, I suspect that all they have is an application form, after all, one account I signed up for was outside a football club and I remember there was only an application form, not an agreement) could the case be thrown out due to lack of original documentation?

 

In the N244, do I need to specify a time limit for them to respond, or will the court do that? If I have to do it, what would be considered a reasonable amount of time (seeing as they've chosen not to respond to my CPR requests?

 

Finally, do I need to send a copy of the N244 to Optima or do I rely on the court to do that?

 

All advice gratefully received - I'm really in the mood to go to town on this today!!

[emandcole]

Afternoon all.

 

Well, CPR31.15 received Monday 19 July, reply due by Monday 26 July, and the postman has been and gone and no response received from Optima.

 

So, to work on my N244 I guess.

 

In the N244 can I request the ORIGINAL agreement, and state categorically that I do not want a reconstituted or reconstructed copy - am I actually allowed to do this? I get the feeling that they will not have such a document as the agreeements date back to 2002 / 2003. Therefore, if the ORIGINAL agreement which I am entitled to ask for isn't produced, (and how could it be, I suspect that all they have is an application form, after all, one account I signed up for was outside a football club and I remember there was only an application form, not an agreement) could the case be thrown out due to lack of original documentation?

 

In the N244, do I need to specify a time limit for them to respond, or will the court do that? If I have to do it, what would be considered a reasonable amount of time (seeing as they've chosen not to respond to my CPR requests?

 

Finally, do I need to send a copy of the N244 to Optima or do I rely on the court to do that?

 

All advice gratefully received - I'm really in the mood to go to town on this today!!

 

Hi, could you re-cap for us what you have been sent?

 

Has a default been recorded with any CRA's?

 

Do you have a complete statement history provided by them?

 

Also, are Optima acting on behalf of MBNA or do they 'own' the debt? I currently believe Optima merely do the dirty work for MBNA and do not own the debt itself. Correct me if I'm wrong.

 

We need to force Optima to produce what you need in order to establish their enforceability and their 'true' nature. Once we know where you stand with each of the documents you'll be able to use the best sort of attack.

 

Ideally Optima will have to admit the agreement no longer exists. If that's the case there is an exhaustive data retention and data keeping process you can put them to strict proof of, they'll hate that.

 

Once you've persuaded the court you've done all you can to obtain the documents yourself there should be no reason for them not granting an order against the claimant. As has been said before though creditors appear to enjoy a favoured position in the courts and as such a strike out is highly unlikely. An unless order would be great.

 

Will wait to hear your response and re-cap

[Chipmeister]

Hi emandcole, please see relevant recaps below in red!

 

Hi, could you re-cap for us what you have been sent?

Absolutely nothing to date. However, MBNA still have up to 21 August to respond to my SAR.

 

Has a default been recorded with any CRA's?

Yes, both cards recorded a default on 31 March 2010.

 

Do you have a complete statement history provided by them?

No.

 

Also, are Optima acting on behalf of MBNA or do they 'own' the debt? I currently believe Optima merely do the dirty work for MBNA and do not own the debt itself. Correct me if I'm wrong.

You are correct - MBNA still own the debt and are getting Optima to do their dirty work.

We need to force Optima to produce what you need in order to establish their enforceability and their 'true' nature. Once we know where you stand with each of the documents you'll be able to use the best sort of attack.

Ideally Optima will have to admit the agreement no longer exists. If that's the case there is an exhaustive data retention and data keeping process you can put them to strict proof of, they'll hate that.

They seem to hate simple CPR requests so I can just imagine how much they'd hate to have to dig out that sort of stuff!

 

Once you've persuaded the court you've done all you can to obtain the documents yourself there should be no reason for them not granting an order against the claimant. As has been said before though creditors appear to enjoy a favoured position in the courts and as such a strike out is highly unlikely. An unless order would be great.

I wasn't in all honesty expecting a strike out - as you say, an unless order would be great. Can I draft the "unless" order and send it with my N244??

Will wait to hear your response and re-cap

 

Incidently, my defence was accepted as filed with the Court on 12 July 2010. Optima obviously still have time out of the 28 days (of which 14 have elapsed) to respond to my defence. Am I still ok to push through with the N244?

 

Hope this helps - if you need anything else please let me know

[emandcole]

Hi emandcole, please see relevant recaps below in red!

 

 

 

Incidently, my defence was accepted as filed with the Court on 12 July 2010. Optima obviously still have time out of the 28 days (of which 14 have elapsed) to respond to my defence. Am I still ok to push through with the N244?

 

Hope this helps - if you need anything else please let me know

 

As long as no track allocation has been made you are fine to push through with the application. They are the claimant so should not object to the ordering of these documents, if they do it would invite great suspician.

 

The SAR may produce useful info, given the dates you have which are all muddled up I would ensure on your proposed order that you request permission from the court to re-submit your full defence pending delivery of what you need from the claimant. This way you can then revise your original defence including the line of attack most appropriate.

 

In the application request a full statement history in order that you can audit the claimed sums for accuracy. If they cannot provide around 6 years (where relevent) you can report the creditor to the authorities as they have a legal duty to maintain such records. More on that if needed later on.

 

Just make sure you ask the court to get you all that you need, defaults, T&C's as varied, the lot.

 

Was there inappropriate PPI added? Some MBNA customers had PPI added without their consent or knowledge. Look for a tick on the agreement and see if it even matches your style (if appropriate).

 

There is a Thorius v MBNA case you can use if MBNA did add PPI wrongly, Optima were at the centre of that and the fallout for them was pretty spectacular - MBNA were not happy bunnies.

[Chipmeister]

replies in red below:

 

As long as no track allocation has been made you are fine to push through with the application. They are the claimant so should not object to the ordering of these documents, if they do it would invite great suspician.

Brilliant, thanks for confirming that.

The SAR may produce useful info, given the dates you have which are all muddled up I would ensure on your proposed order that you request permission from the court to re-submit your full defence pending delivery of what you need from the claimant. This way you can then revise your original defence including the line of attack most appropriate.

OK.

 

In the application request a full statement history in order that you can audit the claimed sums for accuracy. If they cannot provide around 6 years (where relevent) you can report the creditor to the authorities as they have a legal duty to maintain such records. More on that if needed later on.

That's useful to know!

Just make sure you ask the court to get you all that you need, defaults, T&C's as varied, the lot.

OK, I'll get a list together. Do I need to put all the stuff I asked for in the SAR in my order, such as transcripts of telephone conversations and so on?

Was there inappropriate PPI added? Some MBNA customers had PPI added without their consent or knowledge. Look for a tick on the agreement and see if it even matches your style (if appropriate).

I cancelled my PPI long ago so I don't think there will be any issues with this.

There is a Thorius v MBNA case you can use if MBNA did add PPI wrongly, Optima were at the centre of that and the fallout for them was pretty spectacular - MBNA were not happy bunnies.

Yes, I read about that!!

 

I will put an N244 together with a draft order for review and comment. v Thanks for all your help!

[indebtandharrased]

Finally, do I need to send a copy of the N244 to Optima or do I rely on the court to do that?

 

You need to provide the court with two copies of the N244 and other pages if you extend beyond the form. They will keep one copy themselves and forward the other to the claimant - so the answer is no, you don't have to send a copy to Optima.

[Chipmeister]

You need to provide the court with two copies of the N244 and other pages if you extend beyond the form. They will keep one copy themselves and forward the other to the claimant - so the answer is no, you don't have to send a copy to Optima.

 

Excellent!! That should shake them up!!

[Chipmeister]

Oh, by the way, I'm still not certain about how I should phrase any letter about unlawful recission, and will this need to be mentioned in my N244?

[Chipmeister]

OK folks, here is my draft order for submission with my N244 form. I'm wondering if I've gone into overkill!

 

Is it too lengthy? Have I asked for the right stuff? Have I asked for enough stuff? Is there anything I shouldn't have asked for? Is there anything I've missed that I should have asked for?!!

 

Comments and guidance very welcome please!

 

Here goes:

 

 

MBNA v Chipmeister

Court Ref:

Application for a Special Court Order

 

I refer to my embarrassed defence submitted via MCOL on 9 July 2010 and acknowledged by the Court on 12 July 2010.

 

On Thursday 8 July 2010, I requested information under Civil Procedure Rules 31.14 and 18 from the Claimant’s solicitors, Optima Legal (“Optima”), to assist me in preparing a full defence.

 

Optima provided a response to my requests dated 9 July 2010 (which was received on 13 July 2010) advising me that “these regulations comes into relevance further into litigation proceedings under a process called, “disclosure” and as such the requests are inappropriate at this time.”

 

As I advised Optima in my letter of 17 July, these are requests for information which may be made after proceedings have started, and can continue up until any court hearing. I further advised that the documents requested in my CPR 31.14 request have already been disclosed by Optima by virtue of their mentioning them in their Particulars of Claim, and therefore I was not asking for disclosure but requesting copies of documents that they have already disclosed and should therefore have to hand. On the same date, I exercised my rights under CPR 31.15 and advised Optima that I required sight of the original executed document.

 

As further background to my case, I confirm that I did not receive a proper letter before action from Optima before they instigated legal proceedings against me, which is in violation of the Practice Direction relating to Pre-Action Conduct. Furthermore, Optima sent their Particulars of Claim separately without copies of the documents asked for in my CPR 31.14, putting them in breach of CPR Practice Directive 16, paragraph 7.3.

 

Copies of Optima’s letter, my response and CPR 31.15 request were sent to the Court by recorded delivery on 17 July 2010.

 

The seven days in which Optima had to respond to my CPR 31.15 request have now expired, and I have not received their response.

 

I feel that I am being frustrated in my attempts to file a full defence as the Claimant has made no effort to comply with my reasonable requests, and without the documents listed below the Claimant cannot prove their case and the Court cannot make a fair judgement.

 

I therefore wish to make an application to the Court requesting that the Claimant provide me with the following documentation by Thursday 26 August 2010 to allow me to prepare my defence:

 

1) Legible photocopies of the original, signed, executed consumer credit agreements in respect of the two seperate credit card accounts which have been combined in this claim

 

2) Any terms and conditions that applied to the accounts at the time of default and at the time the accounts were opened

 

3) All terms and conditions, as varied, that applied throughout the duration of both accounts

 

4) True copies of any notice of assignment that Optima Legal or the Claimant sent me, with a copy of any proof of postage that they hold

 

5) True copies of any default notices and enforcement notices that Optima Legal or the Claimant sent me, with a copy of any proof of postage that they hold

 

If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of Proposal to adduce hearsay evidence is required under s2(1) of the Civil Evidence Act 1995, together with proof of the authenticity of the documents as required under s8(1)(b) of the Act, including, but not limited to:

 

a) A copy of the procedure(s) used for copying, storing and retrieving documents

b) A copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original documents

c) Copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

d) Copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedures and audit processes comply with the appropriate quality standards

 

6) Copies of statements from the date of inception to the termination of the agreements for both accounts so that I may audit the claimed sums for accuracy

 

7) Transcriptions of all telephone conversations, records and any notes made in relation to telephone conversations by Optima Legal or the Claimant

 

8) Where there has been any event in the history of the accounts over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my accounts. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response

 

9) Documents relating to any insurance added to the accounts, including the insurance contract terms and conditions, date it was added and deleted (if applicable)

 

10) Details of any collection charge added to the accounts, specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers

 

11) Specific details of the fees / charges levied by any other agency in respect of these accounts and a detailed breakdown of said fees / charges and what each charge relates to and on what date said fees / charges were levied

 

12) A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

13) Termination notices in respect of both accounts

 

14) A True copy of the consumer credit agreement section 77-79 of the Consumer Credit Act of 1974 (to be removed??)

 

15) A list of third party agencies to whom Optima Legal or the Claimant have disclosed my personal data and a summary of the nature of the information that has been disclosed

 

16) Any other documents that the Claimant seeks to rely on in court.

 

Finally, I request permission from the Court to re-submit my full defence pending delivery of the above mentioned documentation from the Claimant.

 

Unless the Claimant provides this information by Thursday 26 August 2010 I would respectfully request that the claim be struck out without further order.

Edited July 27, 2010 by Chipmeister
Bits in blue have been changed / amended / updated