Virgin/MBNA passed to Optima - claim forms received - help! ***ICO dismissed****

[AndyOrch]

Just google Mercantile Credit Co Ltd v Ellis in 1987.

 

Andy

[gem77]

ok will do andy thank you. And i take this along to the court?

[cymruambyth]

The court should be aware of this case, however you need to take a copy of the instalment order and proof of your payments and the fact that they are up to date. It needs to be mentioned in your defence.

[AndyOrch]

Well not quite you will arm yourself with the case but your main contention is that its already been discharged and you have not defaulted on a installment order and nothing as changed since it was discharged.The Claimant as no right to reapply or been given leave to.

 

Regards

 

Andy

[cymruambyth]

9. According to 'Section 86(1) The County Courts Act 1984:

‘Where the court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order.’

 

10. This point was further considered in the case of Mercantile Credit V Ellis in The Court of Appeal 1987, where it was found that the wording of the Charging Orders Act states quite clearly that no further action could be taken without a default in payment.

 

‘For my part, I would hold that where the circumstances established that an order for payment by instalments has been made and has been observed, then in any event it would be impossible to attack an exercise of discretion where that discretion was exercised in favour of a debtor (now a judgment debtor) faithfully discharging the terms of the judgment order itself.

So far as the jurisdiction point is concerned I have only one matter to add. Reliance was placed on the fact that under Section 1(1) of the Charging Orders Act 1979 the charge may be imposed in order to secure "the payment of any money due or to become due under the judgment or order." Those words appear to me to be wholly without significance for present purposes, when one observes that Section 86 of the County Courts Act 1984, having first imposed an embargo on the execution of the order until after default in payment of some instalment according to the order, goes on to provide by subsection (3) as follows: "Except so far as may be otherwise provided by county court rules made for those purposes, execution or successive executions may issue if there is any such default for the whole of the said sum of money and costs then remaining unpaid or for such part as the court may order either at the time of the original order or at any subsequent time; but except so far as may be otherwise provided by such rules, no execution shall issue unless at the time when it issues the whole or some part of an instalment which has already become due remains unpaid."

11. Following a review of charging orders by the Office of Fair Trading in 2010, it was stated in their press release on 22 November 2010:

‘2. A charging order is one of a number of enforcement methods available to creditors to ensure that judgment debts are satisfied. A charging order can only be applied for where a court judgment has already determined that a debtor owes money to the creditor, and payment under that judgment is not forthcoming.’

[gem77]

Thank you Andy and cymruambyth. I will Make a note of that. But you are right Andy I am mainly going to rely on the fact that they have put in a false claim for a second time and the first time it was thrown out. Surly if a judge lets them get away with it its like giving the creditors an open door to do whatever they want they might as well give them all baseball bats and say its ok to beat the money out of your debtors like an illegal loan shark would.

 

Sorry I get a bit het up over this as thought it was all over and done with only for it to jump up and bite me again.

 

So glad I got you guys for guidance and understanding. Dont know where i'd be without you.

 

x

[gem77]

Got a letter back from the land registry today saying after considering my objection they are satisfied it is groundless because the CO in question has not been cancelled by the court.

 

Just seems very unfair to me that they can put in a faulse application and get the intrim CO without question. Obviously the judge who agreed to it only looked at the application and not the whole case. so surely these **** bags can get the interim CO's on anyone they wish. Doesnt really seem like fair justice to me

 

So off to court again we go in March.

[AndyOrch]

In all fairness Gem the LR are not in a position to either accept or reject your objections, there is no CO to be canceled at the court it still remains an ICO and your objections will be considered in March.

 

Regards

 

Andy

[gem77]

yeah they said that in the letter. just makes me mad that the judge didnt even look at the true facts just the application so they can put whatever they like on it.

[AndyOrch]

Very true but all will become clear when you state you case and fight it vigorously in March:wink:

 

Andy

[gem77]

Hi all so sorry I have not been on here for so long for one my laptop decided to go puff and i have only just got back on line with my old pc which is slow

and a complete nightmare also at the CO case in march they kind of put the wind up me so wanted to lie low for a bit. But here is what happened

 

I was a bit stupid and when the solicitor (yes they turned up this time) approached me asking if he could have a quick word

I was stupid enough to tell him the situation of being here before and that the application was completely incorrect.

 

He was totally unaware of any of the facts and quickly hurried away to ring MBNA

I then relised what did I do that for .

 

I got flustered when he approached me and when he started going on about no payment plan was accepted I just saw red and blurted it all out. me and my big mouth.

 

the judge was a nightmare and seemed to be one that was on the banks side great

It looked like he was going to award them the CO for a while.

 

Their excuse for not turning up last time was that they thought it had been adjourned due to my pregnancy issues

that is what put the wind up me that they have obviously been closely monitering this thread as there would be no other way they knew

unless they have access to my medical records and social networking site .

 

They also said they didnt relise the paperwork was incorrect or it would never have been submitted

the judge believed all of it and stated he doesnt think any of this was done intentionally.

I only wish my brain had been working but I was so dumb founded about the pregnancy statement

i didnt know what to say until afterwards it occured to me if they had read this thread and found out i was pregnant

then surely they knew the paperwork was all wrong as well as it is all down here in black and white .

 

I really did think this is it the judge is going to award it to them

he was thinking long and hard for a while

 

then he said they could not have it has they had had 2 chances and got it wrong both times

and to teach them to take more care over their paperwork they could not have their CO.

 

The solicitor then asked if they altered the paperwork and resubmitted it could they appeal,

Oh great I thought here we go again,

 

But thankfully again he said no you have had 2 chances to get it right so i do not give you permission to appeal

 

as long as I keep up payments they were not allowed to try again.

 

PHEW! I didnt even go there again with charges as like I said the judge was so on their side not like the last one.

I just counted myself lucky it went how it did.

 

So I thought it was over

 

but got a letter the otherday from MBNA that they are selling my debt to Marlin Europe II ltd.

 

Can they do this if I have a ccj on the debt and what does this mean for me

 

am I going to start getting hasselled again by this new company

 

can they take me to court to try to get a charging order or change the judgement.

 

Sorry once again for the long abscence. and thankyou for your replies.

[DonkeyB]

Yes, they can sell it.

 

But the CCJ is now the agreement – no more interest can be charged on it, and the CCA bit is redundant.

 

Marlin may or may not know there is a CCJ in place. From your point of view, simply keep making the payments to MBNA.

 

Marlin will have to have themselves replaced as the claimant in the case,

and they will have to apply to the court to do this (if they know about it),

if they want to collect any money.

 

DO NOT change your payment in favour of Marlin unless you are furnished with a court order replacing them as the claimant in the case.

 

There is a court-agreed payment in place, and Marlin cannot change this without applying to the court

(and I doubt your circumstances have changed, so they’d get nowhere).

And of course, before they could even do this, they have to take the steps described above.

 

For now, best thing is to keep paying MBNA and see what transpires from Marlin.

 

Judging by their recent performances, they won’t have a clue...

and if they start making ridiculous demands in ignorance of the facts, then we can go to town on them.

[gem77]

Thankyou DonkeyB I will just continue as normal then and see what Marlin sends me. I have a standing order set up at the moment MBNA can't cancel this can they?

[DonkeyB]

They shouldn’t. In other cases like yours MBNA have said they will pass payments on.

[gem77]

Ok thankyou for your advice DonkeyB I shall just sit on it for now and see what drops through the door in the coming weeks.

[DonkeyB]

Others further down the timeline with MBNA/Marlin should be able to add more. There a couple of threads like yours, so have a dig around the forums.

[gem77]

Will do thanks again DonkeyB

[gem77]

Bit more development.

 

I have never had any other paperwork to state Marlin have put their name on the ccj r

 

eceived a letter offering a reduced settlement figure from optima legal as it would appear marlin are keeping it with optima

(it is them my standing order is set up to)

I just ignored this as I didnt have the funds obviously.

 

Today I receive a letter from optima ( headed without Prejudice) stating the agreement is now due for review and ordering me to complete

the enclosed income , asset and expenditure form, provide proof of income, significant expenses such as rent or mortgage and other debts and to return it within the next 7 days.

 

Oh and to top it all off they've added over £1000 extra on top of the original outstanding balance.

 

Can they demand this of me as I have a ccj?

or am I right in thinking that the amount the court ordered me to pay can not be changed without going through the court again and that it stands for the remainder of the dept?

 

Many thanks

[dx100uk]

correct

 

it worries me they are offering a discount

 

this means there is something wrong with the debt.

 

dx

[gem77]

Thanks for reply DX. Not sure how much the discount was for will have to dig out the letter and not sure where it is as I just dismissed it. Could have been for the £1000 they have decided to add on and trying to make themselves look good and understanding for offering to reduce it.

 

Should I write a stern letter asking them how they got to the outstanding liability figure which is what they are calling it and they I am not legally obliged to give them all my financial details?

 

Gona try to find that letter.

[DonkeyB]

...or they are just stupid.

 

Can you remind us what the terms of the judgment order were?

 

From memory, I’m pretty sure you had an application dismissed because your payments were up to date?

 

Unless the original judgment order allows for interest, then no charges can be added, and unless the judgment allowed for a regular review, then they cannot change your payments without making a further application to the court.

 

So dig out the original judgment and tell us what it says.

[GeoffreyAlby]

I would imagine the original court order allowed for interest to be added to the amount.

[AndyOrch]

I would imagine the original court order allowed for interest to be added to the amount.

 

Only if its in the T&Cs of the agreement (PJI) and the judgment was above 5K.

 

Regards

 

Andy

[gem77]

Yep got it all and found the reduced settlement letter. Is it ok to put exact amounts on the forum?

[DonkeyB]

Well finally got the order through from the court. It states as follows:

 

It is ordered that:

 

1. There be summery judgement for the claimant in the some of £5***.** + £575.00 Costs and fees payable at £18.00 per month, 1st Payment on 1st March 2011.

 

2. Permission to claimant to apply for a charging order notwithstanding payment of instalments under the judgement.

 

So does that mean that they can only apply for a charging order if I do not keep up the repayments?

 

Here we are.

 

No interest allowed by the judge.

 

So they can whistle, and the judge set the payment level too.

 

Complain to the OFT about this too. They have absolutely no right to demand an I&E form from you.