**Urgent** Judgement forthwith today/Chg order looming /Restons/Mbna Help please.

[baggles]

This morning we have received a letter from Land registry. With a notice of application to register a restriction against the land! It states that Restons on behalf of MBNA went to court to apply for this on the 18th August 2010. WE were never informed!!!!!!!

 

The story before is a s follows.

My husband had an MBNA credit card with £9K on it. Due to recession we got in to difficulty paying our creditors. We asked MBNA for reduced payment frozen interest etc which they did for 7 mths. We paid every month a small amount as agreed. Unfortunately with lots of other huge stresses my husband hadn't realised that the 7 mths had passed and the DD had stopped until he got a letter from Restons a month later. He spoke to MBNA tried to come to payment arrangement and or settlement figure to no avail. He had been paying £73 which is what MBNA had said they would want should he go into a debt management plan with them. Restons wanted £250 which we could not afford. We wrote continuosly asking for them to accept the £73. Restons kept saying NO! However they continued to accept the £73 for the last 6mths and continued to threaten court action. He is in a DMP with Payplan and everone else agreed to the lower payments. We also have an email from Payplan saying Restons had agreed to the £12 that they were paying to them on top of the £73 we are fighting to find every month!!

We have had NO letters from any court. No letters saying Restons have applied for a CCJ against my husband, apparently they have to do this before going for a charge against our property. Is this true?

This Credit was in my husbands name solely Not mine, out house is in joint names, we have 1 dependant child aged 5yrs. Our House has a Mortgage on it of £287,000 it is worth £300,000 MAX!!

 

I am terrified, am in tears and in fear of loosing my home. Please can someone advise us what to do? Restons have been SO unreasonable, we have literally dozens of letters we have sent them recorded delivery! Also we have asked Restons for a copy of the 'signed' CCA and they say they don't hold it. We have also requested it from MBNA and heard nothing!!

Thank you in advance for yr help.

[LOVETHEBANKS]

You'll need to apply to the court to have the ccj set aside. I'm in Scotland so the process is different to yours but I would start by contacting the court and asking them for advice. You need to explain the situation and try and show that you never received the necessary documentation.

 

Judges are reluctant to throw people out on the street especially if they have young children but you need to convince them that you were left in the dark about the court case.

 

I wouldn't expect any sympathy from the debt collectors, they'll do anything and say anything in order to get the money. Make sure you keep copies of letters sent/received aswell as any proof of posting as they can help your cause.

[baggles]

My Husband will speak to the court tomorrow and will see what they say. It seems SO unfair that Restons & MBNA won't come to 'any' arrangement with us. What are we to do we simply cannot afford to pay it in one go. We have paid every month, we hope that this will go in favour with the judge??? We have never not wanted to sort it out, it seems so un reasonable.

 

Has MBNA actually sold the debt to restons or do restons just collect on their behalf? Does anyone know?

[baggles]

PLEASE help us!!

This morning we have received a letter from Land registry. With a notice of application to register a restriction against the land! It states that Restons on behalf of MBNA went to court to apply for this on the 18th August 2010. WE were never informed!!!!!!!

 

The story before is a s follows.

My husband had an MBNA credit card with £9K on it. Due to recession we got in to difficulty paying our creditors. We asked MBNA for reduced payment frozen interest etc which they did for 7 mths. We paid every month a small amount as agreed. Unfortunately with lots of other huge stresses my husband hadn't realised that the 7 mths had passed and the DD had stopped until he got a letter from Restons a month later. He spoke to MBNA tried to come to payment arrangement and or settlement figure to no avail. He had been paying £73 which is what MBNA had said they would want should he go into a debt management plan with them. Restons wanted £250 which we could not afford. We wrote continuosly asking for them to accept the £73. Restons kept saying NO! However they continued to accept the £73 for the last 6mths and continued to threaten court action. He is in a dmp with Payplan and everone else agreed to the lower payments. We also have an email from Payplan saying Restons had agreed to the £12 that they were paying to them on top of the £73 we are fighting to find every month!!

We have had NO letters from any court. No letters saying Restons have applied for a CCJ against my husband, apparently they have to do this before going for a charge against our property. Is this true?

This Credit was in my husbands name solely Not mine, out house is in joint names, we have 1 dependant child aged 5yrs. Our House has a Mortgage on it of £287,000 it is worth £300,000 MAX!!

 

I am terrified, am in tears and in fear of loosing my home. Please can someone advise us what to do? Restons have been SO unreasonable, we have literally dozens of letters we have sent them recorded delivery! Also we have asked Restons for a copy of the 'signed' CCA and they say they don't hold it. We have also requested it from MBNA and heard nothing!!

Thank you in advance for yr help.

[debt4get]

the first thing is you will not lose your home..the reason restons only managed to get a 'restriction' is because they could not get a charging order as the home is jointly held..all this means is when/or if you sell your solicitor should write to restons two weeks after sale and inform them that the house has been sold and they can bu**er off

i hope this explains it a bit better

http://www.bllaw.co.uk/pdf/financeandrecoveries_0806_charging%20orders%20on%20property.pdf

[debt4get]

i would also check and see if restons have somehow obtained a ccj against your husband...if not we should apply to have this restriction set aside....if you find that there is no ccj then it is defo worth a go

[LOVETHEBANKS]

I think restons just collect on their behalf but dont take my word for it.

 

Judges tend to look unfaviourably on people who use the courts as a means of enforcement without taking adequate steps to resolve the issue (with the other party) and the fact that you have maintained payments will work in your favour.

 

The courts may refer you to a consumer debt service for advice who may be able to go over the process of getting the judgement set aside. It is also worth you trying to get hold of some books on County Court procedures as they should help you to understand the process and give you more confidence.

 

I think that if you can get the case before a judge you'll probably get a fair bit of sympathy but your focus at the moment should be on getting that judgement 'set aside'.

[baggles]

We will speak to the courts tomorrow to find out if they have got a CCJ on my hubby and also to get it 'set aside'.

 

Surely we would of heard from the courts, no? Doesn't the creditor have to get an interim order that we have so many days to pay and if we do nothing then they can go for the restriction order? We have not received any paper work from courts or restons, other than the restons standard letters threatening court action!

 

Is it worth us trying to spk to MBNA about a settlement? Or will they no longer deal with us?

Also with a 'Restriction' in place (if they got it) would they then be able to get an order to force us to sell? What is worrying is, the others we have on a DMP may well follow suit? I have never been so scared. We had NO idea that a un-secured loan can be turned into secured one.

 

Also can someone explain the whole CCA thing, as we haven't received ours we can only assume my hubby never signed one? What does this then mean and what do we say in court, surely you can't say you never spent the money, as they would have ways of proving this? No?

Thank you ...................so much

[baggles]

We will speak to the courts tomorrow to find out if they have got a CCJ on my hubby and also to get it 'set aside'.

 

Surely we would of heard from the courts, no? Doesn't the creditor have to get an interim order that we have so many days to pay and if we do nothing then they can go for the restriction order? We have not received any paper work from courts or restons, other than the restons standard letters threatening court action!

 

Is it worth us trying to spk to MBNA about a settlement? Or will they no longer deal with us?

Also with a 'Restriction' in place (if they got it) would they then be able to get an order to force us to sell? What is worrying is, the others we have on a DMP may well follow suit? I have never been so scared. We had NO idea that a un-secured loan can be turned into secured one.

 

Also can someone explain the whole CCA thing, as we haven't received ours we can only assume my hubby never signed one? What does this then mean and what do we say in court, surely you can't say you never spent the money, as they would have ways of proving this? No?

Thank you ...................so much

[debt4get]

a lot of questions so will try to deal with each..you should most definitely have heard from the courts both for a ccj and a restriction order....never speak to any of these people on the phone..make sure it is by letter only and make sure you send letters that are 'signed for' so you have proof of receipt..that way you have a paper trail...can they get an order to sell? no..a restriction is simply that..a restriction..and if you read the link i gave it aint worth anything anyway..it is easy to circumvent....the whole cca thing? if the dca has no cca then they theoretically cannot enforce the debt in court...they must have the correct paperwork in order to do so...somehow they again have circumvented this..i will be interested to see tomorrow whether or not they have ccj registered against your husband..if they do and have not complied with your request for the cca then it should be fairly easy to get the ccj set aside which will make the restriction also null and void...whether you have spent the money or not is neither here nor there....they must have the correct paperwork end of...their are lots of precedents that this is the case....try not too worry..i can absolutely guarantee they cannnot force you to sell the property...

[debt4get]

i would also like you to send this to restons

ACCOUNT IN DISPUTE

 

Date:

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. This was signed for as delivered on the **DATE**

You have failed to comply with my request, and as such the account entered default on **DATE** (12+2 days after you made the initial request).

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you/your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8

 

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

 

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

[baggles]

I will get this organised today. Thank you. Also I have just been reading on here that Bailiffs can take yr car off yr drive when they can not get entry. I need to check with hubby if they have threatened Bailiffs but that has really freaked me out. We have a 7yr old X5 which is worth 11K and is financed for as much too! It is in my husbands name, Should I change it into my name? What are the chances they will come and take it?

 

Thank you

[debt4get]

they all threaten bailliffs...but unless they have a ccj and a court order they cannot remove anything.....you need to find out first whether or not their is a ccj before you start worrying about bailliffs...

[baggles]

So I am assuming that when this goes to court hubby will get a ccj as a matter of course and then they can send in the bailiffs. If you have a payment arrangement set up by the court and you pay it can they still send in bailiffs?

 

Can they take the car if its in my name. Sorry I know I am panicking but I am at home in the day with my Son and am terrified they may turn up and I will open the door and thats it they will push their way in. Should I open it with chain or what, I have never been in this situation and am really freaking out! Sorry!!

[cerberusalert]

So I am assuming that when this goes to court hubby will get a ccj as a matter of course and then they can send in the bailiffs

No, if it went to court and it's a big if, they would have to produce evidence that a debt exists and that includes an enforceable CCA. Even if they did obtain a CCJ your husband would have needed to have defaulted on the payment of that before they could apply to a court to take enforcement action.

Can they take the car if its in my name.

No.

I am at home in the day with my Son and am terrified they may turn up and I will open the door and thats it they will push their way in.

They cannot force entry. You do not have to open your door to anyone.

[twoman]

Hi All,

One of the questions raised by baggles in post 4 is "We had NO idea that a un-secured loan can be turned into secured one". Can they do this.?

[Seminole]

Hi All,

One of the questions raised by baggles in post 4 is "We had NO idea that a un-secured loan can be turned into secured one". Can they do this.?

 

Yes, if they obtain a charging order.

[debt4get]

they can and do...it has been pointed out before and to various governments that all unsecured loans should come with the proviso...if you cannot keep up payments you could be in danger of losing your home..or words to that effect..however it is better to head this off before you get to that situation...what i do not understand is that in order to get a charge order....the dca must first obtain a ccj then that has to be defaulted on....the poster has so far said that they have had no court papers sent in...so we await to find out what has actually happened

[baggles]

HI There,

It seems it can, if you have something for them to secure it on, property wise. The only saving grace is its my husbands debt so the best they can get is a restriction on our property as its jointly owned but if it was in his name only they could get a Charging order and then go for forcing you to sell yr home, so its essentially a secured debt. Seems UNREAL to me, what exactly is the point of an UN secured debt?????

 

However that's my understanding of it but maybe someone will tell me i'm wrong?!

[twoman]

So once again the banks can change the rules to suit even though you took out an un-secured loan.As you have a choice of secured or unsecured loan surely it is tough on the banks if they took the risk of giving you an un-secured loan.

[baggles]

Waiting for husband to return with news after speaking to the court. He has said tho (as he has before in buisness taken others to court) That the courts have and continue to make mistakes of which he has had first hand experience hence things get set aside. We will fight this. I feel they are so un fair we are in a recession, my husband is an estate agent, we have had to majorly downsize his office, make several redundancies in order to survive and even then we fight each and every day. There is no understanding with the DCA they are nasty pieces of work, I don't know how they sleep at night with the misery and stress they cause and get away with it, its WRONG!! ;-(

[baggles]

Hubby says the only difference is if it were secured you'd of lost yr home A LOT sooner, with un secured it takes longer to get to the force of sale. FABULOUS I say!!

[debt4get]

HI There,

It seems it can, if you have something for them to secure it on, property wise. The only saving grace is its my husbands debt so the best they can get is a restriction on our property as its jointly owned but if it was in his name only they could get a Charging order and then go for forcing you to sell yr home, so its essentially a secured debt. Seems UNREAL to me, what exactly is the point of an UN secured debt?????

 

However that's my understanding of it but maybe someone will tell me i'm wrong?!

 

nope you have got it spot on...a restriction is actually a waste of time for them...as i said before you only have to tell them you have sold 2 weeks after sale is completed..so in effect it gets them nothing....

[baggles]

Right spoken to hubby and spoken to court and they have said that as he has been continuing to pay the £73 per month AND that Payplan have paid the extra £12 that that is an automatic admittance of monies owed so its irrelevant whether there is a signed CCA or not. They sent the paperwork out whilst were were away at my parents, which amazingly never arrived!! They have no proof they sent it!!!!!! He has now sent in paperwork to have it set aside and has also asked for it to he heard at our local court.

 

So what in the hell do we do now! Is this correct regarding the CCA, surely if this were the case the fact that we all 'used' to pay these credit cards in full admits they are ours?? God its a minefield!!!!!

He paid Restons £10 to get the CCA then they said they didn't hold it, they cashed the cheque anyway! MBNA haven't responded to the CCA request. HELP!!!!!!!!

[cerberusalert]

It doesn't matter whether he paid anything, that only applies in the case of it being Statute Barred. If a CCA does not comply to CCA 1974 then it would be deemed unenforceable and it would matter not whether any payments had been made.

 

Once he gets the CCJ set aside it puts it back to square one and everything will revolve around the CCA.