MBNA/Optima Legal Services debt going for CO.

[Ellison50]

I realise that my situation may be a beyond what advice can be offered by this forum and I will need to take legal advice, but any help on the initial steps would be greatly appreciated.

 

I have been away from home for just over a year, and having just come back this weekend have discovered a letter that was received about 5 days ago from the Land Registry. It is a ‘B132 Notice to a registered proprietor of an application to enter a agreed notice’. It is an equitable charge created by an interim charging order.

 

This is not related to the mortgage or any secured loan. I have not heard of the lender (a bank/lender), and I have no knowledge of having had services with them or failing to pay anything. However, it looks like there has been a court case.

 

I have not got a court case reference or papers, and have not has any contact with anyone before. This letter tells me that a court has been involved. The letter says I should contact XXXX Legal Services if I require more information about why this application has been made.

 

I did update all my known banks etc. to a communication address while I was away from home and kept up payments on these, but this must be one I have missed out (if it is owed and valid). I have not had any letters while away.

 

A friend of the family came into the house once a week to throw out junk mail, free newspapers etc., and they have returned anything else to the sender on my behalf as I was not expecting anything. This is where I fear things have gone wrong. Nothing has sent by Recorded or Special Delivery Mail, and there have not been any visits or cards from lenders or bailiffs through the door.

 

I am no illusion that this is serious, but I wanted to establish what steps I should take to deal with this.

 

I was going to contact the Court and the XXXX above, but I am unsure as to what I should say in addition to the above. I am assuming for now that the debt will be above what I can pay outright if it is owed by me, but I also believe the stage of challenging that may be past.

 

It seems unfair that a court can make a decision if I have not had input of even had the chance to fail on an agreed payment plan.

 

Can anyone help/suggest/advise with a place to start? I do not want to lose the house etc.

 

Thank you very much.

 

I should add that I intend to contact XXXX Legal Services anyway as per the letter, but was wondering what else I should do. Thank you.

[dx100uk]

moved to the legal forum

 

dx

[Ellison50]

BTW - The lender is MBNA if that is relevant.

[Ellison50]

I have been reading through the forums some more, and my plan is to write to the XXXX Legal Services people explaining what has happened and to make sure communcations are open. I will also write to the Court with the same and tell them that I have written to the XXXX Legals Service people. I will send these letters securely.

 

Any other advice is appreciated.

[nicklea]

Sorry, can I just confirm my understanding.

 

You have never had a credit card or loan with MBNA and neither has anyone else who was a joint owner of the property?

 

EDIT

 

Just to add, where you say:-

 

This is not related to the mortgage or any secured loan. I have not heard of the lender (a bank/lender), and I have no knowledge of having had services with them or failing to pay anything. However, it looks like there has been a court case.

 

The lender you're referring to above is MBNA I take it?

[Ellison50]

Hello nicklea - thank you for your reply. Yes, the lender is MBNA Europe Bank Ltd. I am the only resident/owner of the property and there were no other loans or lending on it, except for my mortgage. I presume this is to clear the chance that this could be a housemate, family member etc. I was not sure whether to put this before, but it is Optima Legal Services (the bit I put before as XXXX Legal Services).

 

I do not believe that I have or had any services or relationship with MBNA. I was very careful to update everyone and keep everything up to date while I was away. However, if the courts have found in the lender's favour, which is what it looks like, I have to assume for now that they have seen something that satisfied their decision.

 

If this is something where I have made a mistake, I am concerned that things have moved forward in my absence. In other words, I have not had the opportunity to query anything, agree to anything or fail to meet any subsequent agreement if that was what was put in place before further action was taken.

 

Thank you for any suggestions, pointers etc.

Edited May 7, 2011 by Ellison50

[dx100uk]

a good pointer would be to view your cra file

 

dx

[justace]

In your circumstances I would apply immediately to the court for judgement to be set aside, it's an easy process usually dealt with by letter after you've submitted the form.

You will need to give reasons why you think it should be set aside on the form, backed with evidence if you have it, to prove you were away.

 

Include the fact that you were unaware of the debt claimed and have been given no opportunity to defend against the action.

Keep it simple and don't try to use legal jargon, clueless Joe Public will get more sympathy and help at this stage. Court staff are often happy to advise on the necessary procedures.

You are appealing for natural justice, if you are honest and genuine there shouldn't be a problem.

 

When the application is granted, everything stops and the claimant will have to start the whole process again.

 

Good luck.

[Ellison50]

Thank you dx100 uk and justace.

 

Justace - I have researched the form etc. by using the National Debtline information leaflet. I think I understand the process for setting aside and see that I will have to pay £75 fee.

 

Do you think I should still write to Optima to get details of the debt etc.?

 

Thank you for your suggestions.

Edited May 8, 2011 by Ellison50

[nicklea]

If you are succesful in getting it set aside this will put things back to the begining - as though they had just issued the court claim. This will give you the chance to defend yourself properly.

 

I would suggest that you do contact everybody to find out the situation. However it is generally best to contact Optima only in writing as they will try very hard to get you to pay them some money in they talk to you on the phone.

 

Just one final point, MBNA also do a lot of branded credit cards for other people - like the Cats Protection League for example. So there is a remote possibility that if you had a credit card with some organisation like that then it would actually be recorded as MBNA.

[Ellison50]

Thank you nicklea. The branding issue does not ring any bells...

 

I have the form completed and it alls seems straight forward.

 

Thank you again.

Edited May 8, 2011 by Ellison50

[justace]

I didn't mention the fee because it was some time ago I did it and as expected it has changed. If it gets them off your back it's worth it.

Mine was decided within a week, it was granted (I was away from home too) and I went on to win the case .......... against HMRC no less.

 

If there is no immediate threat of enforcement, I'd ignore them but you'll know more about the urgency of the current situation. They will only be arguing for payment.

Should there be a need to buy some time then you may have to contact them by mail and use some delaying tactic.

 

I'd concentrate on the set aside which will nullify their claim.

If they do re-start the process, there are many knowledgable people on here who will assist with your defence, if needed.

[Ellison50]

Thank you Justace. I will wait and see what happens with the set aside process and go from there.

[Ellison50]

I have applied for this case to be set aside, and while that is going through the system I have received a hearing date for a Charging Order to be made final. I think it would be wise to still submit a defence against the charging order just in case the Set Aside process fails or in case the hearing date occurs before the set aside has been looked at?

 

The Set Aside has been received but not responded or acknowledged by the court yet, but the request was included for it to be stopped/stayed until the hearing, although that does not gurantee anything. Should the court contact you with the hearing date as well as the claimant? And should you submit a copy of your defence to the claimant or just the court, because the claimant seems to be expecting a copy prior to the hearing?

 

If all else fails, and if I am unsuccesful with a defence, would it be a N245 form to try and make the payments reasonable? I do not believe the debt is owed by me, but I suppose you need to stay strong. Interestingly, I never knew that a court does not check the paperwork for a case before issuing papers. For example, they do not check the case is valid, they only act as requested. That seems crazy to me, if true.

Edited May 20, 2011 by Ellison50

[justace]

It is difficult to advise without knowing the timescales involved.

If the hearing is fast approaching and no decision has been given on the set aside, you'll need to apply for an adjournment.

I believe there are a few ways to do this, the first and easiest depends on how reasonable the other side is going to be. If both sides agree to an adjournment, it's usually granted automatically on application.

Otherwise, if they refuse, you'll need to apply directly to the court but Optima may challenge it. Where time allows, it can be done by letter and is preferable, else you'll need to apply at the hearing.

 

I very much doubt that any court would grant a final order when they are aware of a pending set aside motion against the original interim order, they don't like to be overturned.

This will be the grounds of your adjournment request, should it be needed.

 

As to mounting a defence, others on here are much more clued up than I'll ever be on the subject, there are court protocols to be followed that they'll be able to advise on.

I do hope it doesn't get to that stage but if it does and no suitable advice is offered, press the triangle at the bottom to alert the site team who'll get you the right help.

 

Please note - the above is to the best of my current knowledge and other options may be available or advisable.

[Ellison50]

Thank you Justace.

 

I have based my actions on advice here, from the CAB and the National Debtline. It is a little frustrating that even when one has done what they have been advised and believe they should, nothing seems to get resolved quickly. There is always that nagging doubt that despite best efforts things could still blow up in one's face.

 

I suppose I will just have to wait and see now.

[Ellison50]

This case is starting to get a little strange, but that is maybe what cases do. My Charge Order hearing was adjourned when the case was transferred to my preferred court.

 

I have received a copy of the credit agreement, as requested, but it does not look complete to me. Logic says that I should challenge this, but I do not want the court to think I am wasting their time. What should it include on the copy?

 

My set aside application has not assessed yet. I have not heard whether it has been accepted or dismissed, and it has been about a month. I have chased it up with the court, because I know they have it, but as yet they have not replied. I did ask for the case to be stopped or stayed until the hearing within that application, so the court system seems to have failed either in getting the application assessed or maybe all the papers are together when it was transferred to my preferred court and things may change in the days before the hearing when the Judge reads everything?

 

A date for the Charge Order hearing has been set. All I really want to try and sort out with this case is whether the credit agreement is actually correct and enforceable (in the court's opinion) and if it is, arrange a payment plan. Equally, I do not want to aggravate the Judge. My proposed payment plan will pay off the sum within the life of the CCJ. As the interim charge notice had already been applied for before I knew about the case (one reason for the set aside application), I could not submit the form to vary and of course I had not had the N9A or court papers. The original judgement (in my absence) was forthwith.

 

I have already submitted my evidence for the charge order hearing, making an initial reference to the set aside case being in the system with copies attached, but I was going to submit the repayment offer in addition to that so that the court has all my cards on the table for the charge order hearing. I was also going to ask that if the court still rules for the charge order, which I have objected to, that no further action can be taken if the payments are met. I have considered that the set aside application could kick in between now and then.

 

Am I missing a vital step or process, or an official piece of paperwork I need to submit? This was also my logic in getting all my cards on the table with the court as soon as possible. Regarding forms or applications, the CAB and ND Helpline do not seem to be able to give me a definitive answer, although they all agree the cards on the table method is probably wise so I do not miss an opportunity to try and get this sorted. I thought I should also request the Charge Order hearing is adjourned, but i am not sure that my voice counts for much in the bigger picture.

 

Thank you for any help or suggestions.

Edited June 23, 2011 by Ellison50