Registered Blind need help...Amex taken me to court

[imik]

Hello

I am registered blind,

 

Amex got a default judgment,

ccj against me,

and a charge against my home,

because I could not read their court claim form as my carer was away and now have a new hearing tomorrow.

Just discovered this forum.

Please help.

 

I have not managed to get access to a scanner yet but will try.

 

But this is the Particulars of Claim they filed in the original claim form.

 

Seems a bit odd to me as no CCA mentioned.

Card ending .... was a charge card and card ending ...... was a credit card.

 

Verbatim - Particulars of Claim

 

Money due for Charge card and Credit card services supplied by the Claimant to the Defendant as detailed in monthly statements rendered to the Defendant as follows:-

02 April 2010, .: £731.42

11 June 2010, .: £14848.08

 

Total Referred Balance: £15579.50

Less credit: £3671.09

Add Statutory Interest in the sum of £2427.88 calculated from each statement due date to today’s date at 8% per annum pursuant to Section 69 of the County Courts Act 1984

 

AND THE CLAIMANT CLAIMS:-

The total sum of £14336.29

Plus continuing Statutory Interest at the rate of 8% per annum pursuant to Section 69 of the County Courts Act 1984 at £2.61 per day until Judgment or sooner payment.

[dx100uk]

hi welcome to cag

 

things will be quiet till the morning

 

your thread has been alerted

 

dx

 

siteteam

[citizenB]

They keep their claims as brief and ambiguous as possible in order to prevent you using civil procedure rules to obtain information.

 

I am not sure I understand the charge card/credit card statement..

 

Was this a charge / store card that was converted to a credit card ?

 

Can you supply a little more information prior to the issue of the claim..

 

Did they send a Default Notice, termination notice, final/formal demand - Letter before Action ?

 

At what point did you default on the payments and why ?

 

Do you know if there are any default / late payment charges added to the account ?

 

I am assuming your request is for assistance to get this judgment set aside ?

 

When was the Judgment obtained.

[imik]

They managed to get a Charging Order against me by default, due to me not having the opportunity to file an acknowledgement of service or file a defense due to not reading the claim form due to my disability.

 

I have not submitted any documents to the court so far.

 

I am posting all the documents I have. I have no copy of a Default Notice and don't believe one was served at all! This seems apparent from the sequence of documents.Is this grounds to have the case set aside?

 

I am not sure if the Charge Card is covered by the CCA but I believe the Credit Card is?

 

I was planning on asking for an adjournment in order to have time to prepare for my case, serving them with a CCA request, SAR and CPR 18 request.

[citizenB]

Can you please clarify for me.. are the charge card and credit card, 2 separate items ?

 

I have sent out some S.O.S's for you..

[imik]

Yes these were 2 separate cards, one a amex charge card and the other a amex credit card.

 

Any help much appreciated, thanks in advance.

[imik]

The pdfs have been scanned in order of date, scan4 is first and scan9 the last.

 

Again thank you for your help.

 

I would like the judgment set aside if possible, or at least get an adjournment to be able to research my options.

 

Scan amended and approved.

 

court docs page 25 onward - dx siteteam

Edited December 3, 2012 by citizenB

[imik]

The figures claimed seem odd to me, I do not know if I am correct.

 

In Scan8:

Letter from Amex dated 27th Oct 2010

Charge Card = £695.72

Credit Card = £13,913.00

Total = £14,608.72 after last payment made, no subsequent payments made

 

In Scan9:

Letter from Amex dated 9th July 2012

Charge Card = £695.72

Credit Card = £11,212.69

Total = £11,908.41

 

In Scan9:

Court Claim dated 6th September 2012

Charge Card = £731.42 (as of 02 April 2010)

Credit Card = £14,848.08 (as of 11 June 2010)

Minus Credit £3,671.09 (Not sure what this is or composed of?) = £11,908.41

Plus Interest £2,427.88 = Total Claimed = £14,336.29

 

Am I correct in thinking this is odd? Any help much appreciated.

[dx100uk]

all doc done in post 8

 

no need for any more uploads unless they are new doc

 

please upload pdf's only

 

dx

[dx100uk]

thread tidied

 

dx

[AndyOrch]

Hi imik I have been asked to look in on you.

 

This is a bit late considering you have a court hearing tomorrow to make the ICO final.

 

Lets assume that you make application to set a side on the grounds of your disability...what defence will you be offering with regards to the claim (now you are aware of it)?

 

Regards

 

Andy

[imik]

andyorch and citizenB there seems to be:

 

No Default Notice served on me before court action (Section 87(1) CCA 1974)

No Termination Notice served on me before court action (Not sure what it comes under, please help).

No Written Credit Agreement attached to particulars of claim (CPR 16)

No explanation of how they arrived at final amount claimed, I have no understanding what they have applied the credit of £3,671.09 for? (Not sure what it comes under, please help)

No explanation of why credit card figure in Letter from Amex dated 27th Oct 2010 Credit Card = £13,913.00 and why Letter from Amex dated 9th July 2012 states amount for same Credit Card = £11,212.69?

 

Also the court hearing is in Brighton, Amex's local court and not mine, I live in London, i thought that under CPR 13.4 the case should be heard in the defendants local court?

 

The letter (very interesting read) from Brachers at the end of my scan also seems very strange as they seem to say and argue:

 

1. I acknowledged agreement and resulting debt balances by my conduct (they ascertain under common law, is that not a breach of s127 CCA?

2. I never previously denied owing debt, or validity of agreements

3. They fail to see why they should provide signed agreements, given that their clients application to finalise the charging order relies wholly upon an undefended judgment debt (Is this not a breach of s127 CCA 1974?)

 

I did make payments to them, but then got very ill since 2010 when the repayments stopped developing both a serious heart and lung condition, as well as being blind. Was broke and had no earning capacity. Have not claimed Unemployment Benefit as means tested and I have the property which the charge has been placed against under joint names with my brother. This is my only security. The only regular income coming into my account is Disability Living Allowance, £164 per month.

 

I need your help, please as they have given me no chance to request or examine documentation or prepare a decent defense, I cannot afford a solicitor.

 

Please help.

[AndyOrch]

The hearing should be held at your local County Court not the Claimants...but its a bit late now the day before to rectify that matter.

 

I will deal with the salient points in order you have listed:-

 

" No Default Notice served on me before court action (Section 87(1) CCA 1974) Your word against theirs they will have a log that one was issued unless you have done a DSAR to prove otherwise

No Termination Notice served on me before court action (Not sure what it comes under, please help). The DN usually acts as the Termination Notice if not rectified

No Written Credit Agreement attached to particulars of claim (CPR 16) Not required to if issued from Northampton

No explanation of how they arrived at final amount claimed, I have no understanding what they have applied the credit of £3,671.09 for? (Not sure what it comes under, please help)

No explanation of why credit card figure in Letter from Amex dated 27th Oct 2010 Credit Card = £13,913.00 and why Letter from Amex dated 9th July 2012 states amount for same Credit Card = £11,212.69? DSAR ?

 

Also the court hearing is in Brighton, Amex's local court and not mine, I live in London, i thought that under CPR 13.4 the case should be heard in the defendants local court? See above

 

The letter (very interesting read) from Brachers at the end of my scan also seems very strange as they seem to say and argue:

 

1. I acknowledged agreement and resulting debt balances by my conduct (they ascertain under common law, is that not a breach of s127 CCA? The interim payments made ?

2. I never previously denied owing debt, or validity of agreements

3. They fail to see why they should provide signed agreements, given that their clients application to finalise the charging order relies wholly upon an undefended judgment debt (Is this not a breach of s127 CCA 1974?)" Once a Judgment is in place there is no need to provide any agreement the Judgment becomes the agreement

 

I did make payments to them, but then got very ill since 2010 when the repayments stopped developing both a serious heart and lung condition, as well as being blind. Was broke and had no earning capacity. Have not claimed Unemployment Benefit as means tested and I have the property which the charge has been placed against under joint names with my brother.If its joint ownership they will only get a Restriction not a Charging Order on your 50% share of its value This is my only security. The only regular income coming into my account is Disability Living Allowance, £164 per month.

 

Regards

 

Andy

[imik]

Do I have any solid grounds on which to proceed? any advice?

[AndyOrch]

To be absolutely honest imik I personally wouldn't bother....apart from checking the amounts claimed the figures can be quantified by requesting a D.S.A.R.The judgment ..wrong as it appears with your disability I can not see a defence above.

Even if you did set a side (and I am not sure even your disabilty would qualify) you would be required to propose a defence which as said I see no defence.

 

From Oct 1st 2012 all judgments can now be tagged with the option to request a Charge as security irrespective of it being forthwith or with instalments.In your case a Restriction which is only a security on the debt and it will only be on the share you own.It is important tomorrow that you make this known as this is the difference between a Charging Order and a Restriction I would also insist on conditions that no Order for sale ever be requested(not that it would on a Restriction).

 

I'm sorry I cant offer more positive advice in this instance.

 

Regards

 

Andy

[imik]

To be absolutely honest imik I personally wouldn't bother....apart from checking the amounts claimed the figures can be quantified by requesting a D.S.A.R.The judgment ..wrong as it appears with your disability I can not see a defence above.

Even if you did set a side (and I am not sure even your disabilty would qualify) you would be required to propose a defence which as said I see no defence. surely i should be allowed the time to get a d.s.a.r and see if process they used was enforceable?

 

From Oct 1st 2012 all judgments can now be tagged with the option to request a Charge as security irrespective of it being forthwith or with instalments.In your case a Restriction which is only a security on the debt and it will only be on the share you own.It is important tomorrow that you make this known as this is the difference between a Charging Order and a Restriction I would also insist on conditions that no Order for sale ever be requested(not that it would on a Restriction). is there any thing i can reference on this?

 

I'm sorry I cant offer more positive advice in this instance.

 

what about if they aplied ppi and other charges to the account?

 

Regards

 

Andy

..

[citizenB]

Do you know for sure that there was PPI on the account ? It would be obvious from your statements as it would be separately identified. As with charges.

 

I am truly sorry, I do not have the experience to be able to help further.

[AndyOrch]

Imik as I have stated your main priority for tomorrow is to inform them that you are only joint owner.....that stops the full CO and only a Restriction will be recorded.Request conditions attached that ...no Order for Sale to be granted.

Then do your DSAR and quantify your balance indebted to the Claimant.If there was PPI it will be in the SAR response and if so you can then consider a claim against them.

 

Regards

 

Andy

[imik]

Went to the hearing and the Judge was not interested in anything I had to say, as the interim ccj had already been given. He basically said that he was there to finalise the order unless i was not the person mentioned in the interim ccj.

 

I mentioned straight away that only a restriction be placed and the judge said I was mistaken and that a charging order would be placed on the property through a Equitable Charge Charging Order on my share of the joint property. He said he had had this argument with many solicitors who were wrong and that he was placing the order under CPR 73.

 

I said I made my Request for a restriction under following:

 

• According to The Land Registration Act 2002 (LRA) and Land Registration Rules 2003 (LRR) it is not possible to register a charging order as an ‘equitable charge’ on a jointly owned property unless all the owners / registered proprietors are judgment debtors. Where only one of the owners / registered proprietors is the judgment debtor, the order will be registered as a ‘restriction’.

 

• The restriction which is entered on the register where a charging order is made against one of joint proprietors is in the following form :-

 

“No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [name of person with the benefit of the charging order restriction] at [address for service], being the person with the benefit of [an interim] [a final] charging order on the beneficial interest of (name of the judgment debtor) made by the (name of court) on (date) (Court reference)”.

 

• I also request conditions that No Order for Sale ever be requested by Claimant taking into account personal circumstances.

 

Personal Circumstances

 

Payments made to Claimant, but then I got progressively very ill since 2010 when the repayments stopped developing both a serious heart and lung condition, a back problem as well as being blind. Lost capacity to earn and had no regular earning capacity.

Have not claimed Unemployment Benefit as not eligible, as the property which the charge has been placed against is registered under joint names with my brother. This is our family home. My elderly disabled parents, my wife who is my carer, my two dependant children aged 4 and 5 and my brother all reside in this property, and any forced sale would not be equitable to them.

 

The only regular income coming into my bank account is Disability Living Allowance, £164 per month and Child Benefit. These sums are used in their entirety to support my dependants and ensure my mobility and care.

 

I then asked for a No Order for Sale condition be attached, he denied this also saying that the creditor if they ever applied for sale would be unlikely to be granted it because the threshold to satisfy was very high and EU law also applied.

 

I then asked for adjourment and charge order not to be finalised as this case was being in a court that was not my home court. He again denied and said now that you are here I will finalise.

 

He then turned to the claimants solicitor who had not uttered one word throughout and said shall i finalise the order, the solicitor said yes and the judge said how much for? the solicitor said the amount in the interim order plus costs of about £250 pounds.

 

Then that was it, we left.

 

I am now really confused! What was actually ordered? was a Charging Order placed or a Restriction?

 

After doing some more research after being kindly pointed in the right direction by andyorch and citizenB and looking at MSE website, was a Charging Order placed that can only be registered by the Creditor through a Form K at Land Registry as a Restriction, or could the creditor based on the Equitable Charge Charging Order place a Charging Order on the Register?

 

Can I appeal the 8% Statutory Interest Charge?

Should I appeal at all or wait to see the Charging Order and see how it is registered at Land Registry? and how long will it take to show up?

 

Should I now serve a SAR and chase them for PPI?

 

Finally curiously up till only a couple of weeks ago i was still getting statements from AMEX, would they still send out statements if they had sent both a default notice and terminated the account?

 

Thanks for all the help in advance.

[Ganymede]

Hi,

 

Sorry but the District Judge was right, he was not there to go behind the original CCJ and set it aside, it was a hearing to make the Interim Charging Order final.

 

There seems to be a lot of confusion around regarding Charging Order terminology.

 

The Court Ordered a Final Charging Order against your property. It is nothing to so with the Court how that Charging Order is then registered and there was no point you arguing with the DJ over Restrictions -v- Equitable Charges.

 

Once an FCO is granted by the Court the Claimant then applies to the Land Registry to register the FCO against the property in one of two ways:

 

1) Equitable Charge. This is where the FCO is in the name of the sole owner of the property or in both names in the case of joint owners.

 

2) Restriction. This is where the FCO is in one name only and the property is owned by two or more people. The CO is then registered against the beneficial interst of the Defendant only.

 

In both cases a full Charging Order is granted, the only difference is how it is registered with the Land Registry, but this is nothing to do with the Courts.

 

I would also point out that a Court is highly unlikely to ever make it a term of the FCO that the Claimant have a complete ban on ever applying for a Order For Sale. The best you will get is an Order that no application for an OFS be made whilst payments are maintained.

 

Finally, not sure why you asked for an adjournment and transfer to you local Court, as the DJ said you were there! In any event that's not an important issue and not worth focusing your time on.

Edited December 6, 2012 by Ganymede

[citizenB]

Imik, I am dreadfully sorry to hear the outcome of this.

 

I really think you need to act swiftly now and send the Subject Access request in order to obtain the information you require to reclaim the PPI and any charges at least you will be able to reduce any liability.

 

I would think that you will be advised in writing, confirming any decisions made today.