MCE Portfolio Fabricating Documents - Help Needed***Claim withdrawn by Consent***

[kenzo5]

Hi

 

Looking for advice.

 

Brief history:

 

1. 6/2003 Took out Marbles credit card from HFC

 

2. 9/2012 Received Claim for £6700 and Statuary Interest (SI) £3450 from Mortimer Clarke Sols acting for MCE Portfolio Ltd

 

3. 10/2012 Combined CPR31 asking for agreement plus T&C, deed of assignment, default notice

 

4. 10/2012 Filed statute barred and embarassed defence due to lack of detail.in POC

 

5. 11/2012 Claimant sends

a. reconstituted statements 6/2005 - 8/2007

b. application form with separate T&Cs

c. Deed and Notice of Assignment

d. Default Notice

 

6. 11/2012 Case stayed as claimant didn't reply within time period to defence

 

7. 3/2013 Application to lift stay granted

 

8. 3/2013 Allocation Questionnaire returned

 

9. 4/2013 Stayed until 21 May 2013, by 7 May must file a completed directions questionnaire

 

10. Claimant sends letter asking for complete income expenditure and request for payment proposals and indication of defense.

 

 

From the statements received it appears I made reduced payments until May 2007 so the debt is not statute barred. I plan to defend claim on unenforceable agreement and also dispute the amounts claimed if that fails. To enable to finalise my postion I would

appreciate help on the following:

 

 

 

Total amount of claim is over £10k so not eligible for small claims track. However the balance claimed contains charges and SI appears too high. If these figures can be recalculated to below £10k is there any way I can get this allocated to SCT.I assume they want Fast Track so they can pile on the legal expenses if they win, therefore, if I win can I claim my research expenses for which time reading through the forum is racking up. Are there any other advantages/disadvantages between the tracks.

 

 

The balance claimed contains contain late payment review charges can you please point me to the relevant legislation I can research. Do I dispute amounts claimed or counter sue for the charges and compound interest on them?

 

 

They're asking for over £3000 for 8% statuary interest(SI). On their claimed outstanding balance this is over 6yrs of interest. SI can be claimed from cause of action, for credit card debt is cause of action date the date of first missed payment? Because I made last reduced payment 3 May 2007

the claim is not statute barred as the is the cause of action date is reset. Now is the cause of action date for SI different if so how can this be? If not they have over charged SI. Further they have claimed SI for over 6 years yet they didn't take over the debt until 2012 so how are they entitled to interest previous to then?

 

 

The main thrust of my defence is unenforceable agreement. In response to CPR31 they have provided a copy of my applcation form from 2003 with a stapled separate T&Cs. Now the T&Cs contain as far I can tell all the prescribed terms I can make out the headings but the actual text is too small to read.

However I am certain that these are not the original T&Cs. Also they have also forwarded reconstituted statements and a perfectly formed default notice. However these are word processed files not on headed paper so can have been created at anytime, there is nothing to indicate these were actually sent to me.

In fact the statements refer to $ amounts and the DN is dated 25th Oct 2007 but states remedy by 12th Nov 2008 (not my date typo). From a copy of my credit file the actual DN was in 2006. Also the deed of assignment and notice of assignment are for Pheonix Recoveries to MCE Portfolio how do I know the debt was assigned from HFC to Phoenix. Any suggestions to best proceed in proving that these are made up documents with the prime reason to unlawfully obtain money. Anyone else any experience of this? Also is reporting MCE portfolio to FSA/OFT appropriate at this time if I had my way I would report to police for falsifying documents to extort money, a substantial amount as well.

 

 

In response to the stay the claimant has requested I complete an income & expenditure form, give proposals for payment and details of my defence. Does completion of said form and reply constitute as admitting the debt in writing to the creditor so starting the 6 years

statute of limitations once again? I am wary as the six years from my last payment ends in a couple of weeks and I have already had default on credit record for over 7 years and don't want to add a further 6 years. Further to this the claim is stayed so we can mediate to try to achieve

settlement so if I write alleged and without prejudice does this mean I accept the debt? As I am on benefits and have no savings I do not believe they will accept any offer I can afford so likely to end up in court anyway.

 

 

I know I have asked a lot of questions but I believe that they know I cannot afford to pay and want a charging order, therefore, I intend to fight to the best of my ability and any advice gratefully received.

 

 

 

-K

[AndyOrch]

Hi ken and welcome to CAG legal forum.

 

Just one point you state that the total claimed includes Sec 69 Interest ? The claim should have it in the particulars but not included in the total claimed ...its at the discretion of the Court to allow the interest.

 

Regards

 

Andy

[kenzo5]

Hi Andy

 

Thanks for the welcome. POC

 

The Claimant therefore claims 1. 6732.65 2. Interest pursuant to section 69 of the CCA 1984, namely 3444.05 & continuing until Judgement or sooner payment at the rate of 1.48

 

Amount Claimed 10176.70

Court fee 190

Solicitor's costs 100

Total amount 10466.70

 

so have they added it to Amount claimed to push over £10k

 

regards

 

-K

[Ganymede]

Hi kenzo5,

 

In relation to your query regarding the debt being statute barred, once a claim is issued the SB clock stops so it doesn't matter that May is the 6 year anniversary of your last payment.

[kenzo5]

hi Ganymede

 

Thanks for the information. I am concerned that if for whatever reason the current case was withdrawn I don't want to inadvertently do something stupid to restart the clock for another 6 years. However in the spirit of mediation I assume putting forward an outline of my defence, namely, disputing charges under S??? and S69 interest amount and for pre 2007 agreement I will require true and signed copies of the relevant documents not obvious fakes. I also let them know after the court hearing I will be reporting them to the relevant bodies (that OFT/FSA?) as they are not fit and proper to conduct their business. I assume that I am not the only person they have used faked documents to obtain money they are not entitled to, so would it be appropriate to refer this version of the 'Nigerian' [problem] to the police or I am completely wide of the mark here?

 

further advice gratefully received

 

 

-K

[AndyOrch]

Hi Andy

 

Thanks for the welcome. POC

 

The Claimant therefore claims 1. 6732.65 2. Interest pursuant to section 69 of the CCA 1984, namely 3444.05 & continuing until Judgement or sooner payment at the rate of 1.48

 

Amount Claimed 10176.70

Court fee 190

Solicitor's costs 100

Total amount 10466.70

 

so have they added it to Amount claimed to push over £10k

 

regards

 

-K

 

Not sure from your post ken you need to type out the PoC verbatim less any identifiable data...is the debt stated as £6732.65?

 

Regards

 

Andy

[kenzo5]

hi Andy

 

yes, debt is stated as £6732.65 and S69 Interest claimed £3444.05 giving Amount claimed £10176.70. Verbatim as follows:

 

By an agreement in writing between HFC Bank PLC ("HFC") & the Defendant dated 03/06/2003("the Agreement") HFC agreed to issue Defendant with credit card upon terms & conditions set out therein. In breach of the Agreement the Defendant failed to make payments of not less than the minimum payment shown on the monthly statement. HFC served a Default Notice on the Defendant stating the amount due & requiring the Defendant to pay same. The Defendant failed to pay & the Agreement was terminated. The Agreement was assigned to the Claimant on 12/04/2011. The Complainant has complied with Sections III and IV of Practice Direction - Pre-Action Conduct.

THE CLAIMANT THEREFORE CLAIMS.

1. 6732.65

2. interest pursuant to section 69 of the CCA 1984, namely 3444.05 & continuing until Judgement or sooner payment at the rate of 1.48

 

Then in the box bottom right of N1

Amount Claimed 10176.70

Court fee 190

Solicitor's costs 100

Total amount 10466.70

 

 

Hope this is of assistance

 

-K

[kenzo5]

Hi all,

 

Been reading a few threads and it seems that 'falsifying' of documents is standard practice by some claimants and I should accept that's how things are.

 

As the claim has been stayed for mediation I need to contact the Claimant with my proposals. I believe that the claim is for an unenforceable agreement, furthermore I am on benefits and can't pay nor do I have any savings, advice appreciated on what I propose.

 

- K

[AndyOrch]

8. 3/2013 allocation questionnaire returned

 

9. 4/2013 Stayed until 21 May 2013, by 7 May must file a completed directions questionnaire

 

10. Claimant sends letter asking for complete income expenditure and request for payment proposals and indication of defence.

 

You have already submitted your defence...so its now time to see if they wish to submit a further DQ and proceed...then you will be able to attack them on the inclusion of the sec69 interest.

 

Regards

 

Andy

[kenzo5]

Hi Andy

 

This whole experience is like Alice in Wonderland. Can I just clarify

 

1. Standard Order for stay for settlement with consent of all the parties. On or before 7 May 2013 one of the following steps must be taken:

 

either the claimant must notify the court that the whole of the claim has been settled

 

or claimant or defendant must write to the court requesting an extension of the stay period......................................

 

or all parties must file a completed directions questionnaire at court.........................

 

So I also have to file DQ? Would this be the placed to attack re S69 interest? What would I be attempting to achieve? Would a strike out of claim due to inclusion of SI incorrectly putting claim in fast track so putting me in a financial perilous position re legal expenses be a realistic outcome?

 

In the meantime it's Ok to negotiate? and since my original statute barred and embarrassed defense I have had no further opportunity to refine my defense when does that take place?

 

Sorry for all the questions but this process is utter bewilding and there doesn't seem to be an easy handbook to follow.

 

regards

 

-K

[AndyOrch]

Yes both parties must file a further DQ in the event that directions 1 & 2 do not apply.In your opening post you state that the claim is not SB are you 100% sure of this? Judging from the title of your thread its not uncommon for phatom payments to appear when SB is approaching the debt.

 

When you filled your last DQ did you propose any Directions? Did the Claimant?

 

Regards

 

Andy

[kenzo5]

Hi Andy

 

Thanks for your reply. Made reduced payments, last payment was 3rd May 2007 not phantoms, was getting over illness and pressurised into agreeing to make said payments then savings ran out. I'd forgot I'd made them hence SB defence but the amounts on supplied statements verified against current account. So SB 3rd of next month - is that correct? Before that date is it true that I cannot even negotiate or send income expenditure form as this will start clock running again. I know that this claim stops clock but if for whatever reason they don't proceed at DQ then sell debt I don't want to mistakenly incur another 6 years.

 

I didn't propose any Directions, only just found out what they are CPR28 correct? I have never had a copy of Claimants AQ should I have?

 

-K

[AndyOrch]

So SB 3rd of next month - is that correct?

 

Only if the claim is struck out or discontinued...litigation halts the clock.Of course you can negotiate... don't disclose your I&E...its not necessary.If they fail to submit their DQ the claim will be stayed until either party make application to proceed.

 

You need to submit Directions with your next DQ to request disclosure of the documents they will be relying on.You can make reference to the included sec69 within the DQ. Request a copy of their previous and current DQ once submitted.

 

Regards

 

Andy

[citizenB]

You say from your file that the DN was originally issued in 2006 and did not allow sufficient time for the remedy. However, you are also saying that you made reduced payments to the account until 2007 - in which case they will be allowed to issue another DN. If they had terminated the account in between the first DN and the 2nd, that might have been a different ball game. I am sure others will point out anything wrong in my thoughts above.

[kenzo5]

Andy

 

I will only be financially able to offer a nominal F&F settlement figure so I was going to send IE just to indicate this was a realistic offer and I am not taking the mickey. Sorry to repeat myself but this negotiation wills not count as acknowledgement of debt for SB purposes?

 

regards

 

-K

[kenzo5]

hi CitizernB

 

DN was issued 2006 per credit file but AFAIK I never received it, therefore, I cannot ascertain that it complied with the prescribed format. The 2007 DN was also never sent but MCE's reconstruction obviously has all the terms but this is a clear word processed fake as the default date and remedy date are dated for different years.

 

regards

 

-K

[citizenB]

hi CitizernB

 

DN was issued 2006 per credit file but AFAIK I never received it, therefore, I cannot ascertain that it complied with the prescribed format. The 2007 DN was also never sent but MCE's reconstruction obviously has all the terms but this is a clear word processed fake as the default date and remedy date are dated for different years.

 

regards

 

-K

 

I would think this could be useful if they haven't even bothered to reconstruct correctly - it could throw doubt on other paperwork they are producing. However, andy would need to comment on that.

[kenzo5]

Hi

 

Brief Update. We have entered period of negotiation which goes as follows:

 

1. Claimant ("C") writes you owe us £11k whqat are your proposals

2. Write back with no savings and on benefits and so offer nominal amount F&F

3. Unsurprisingly F&F refused and they will kindly accept a voluntary charge

4. I decline CO, tell them that F&F was all I can afford and was a nuisance payment. Told them I was making a Part 20 counterclaim for unfair charges, compound interest thereon and SI. Also requested under CPUTR 2008 whether they the solicitors and/or C currently hold or have ever held a properly executed Consumer Credit Agreement in your/their possession pertaining to myself and if not, to kindly confirm so in writing.

5 C will reduce charges from £25 each to £13 no mention of interest. Also they will accept the claim amount less the SI included within total amount. In response to CPUTR request instead of a simple yes/no answer sent another barely readable copy of application form which they state together with illegible T&Cs already sent constitutes the agreement

6 Me yet to counter

 

 

Fed up with reconstituted illegible agreement if I make a CPR31.15 request do I have to travel to their premises to view?

 

Also want to DSAR the original lender but the notice of assignment states the C is data controller. However all relevant details are prior to alleged purchase date and I wouldn't trust what they sent anyway so am I OK to DSAR original lender?

 

thanks

 

K

[AndyOrch]

" Fed up with reconstituted illegible agreement if I make a CPR31.15 request do I have to travel to their premises to view? Yes

 

Also want to DSAR the original lender but the notice of assignment states the C is data controller. However all relevant details are prior to alleged purchase date and I wouldn't trust what they sent anyway so am I OK to DSAR original lender?" Yes you can

Regards

 

Andy

[kenzo5]

Hi

 

Consent order received

 

1 The Claimant's claim against the Defendant to be withdrawn

2 There be no order as to costs

 

 

On reading other threads I should add

 

3. The claimant will not litigate further regarding this account

4. The claimant will not at any time assign this account to a third party

 

but as alleged debt now statute barred since 3rd May I will sign the above unless

anyone sees a problem.

 

Although I think I have a good defence as documents supplied are forgeries (for

everbody else other than DCAs who call them reconstituted) the risk of a few

hundred pounds costs against a claim plus costs of £20k plus time and stress

makes signing a no brainer for me.

 

 

Thanks to Andy and all others for their advice and taking the time to help.

 

regards

 

K

[AndyOrch]

Hi Kenzo

 

Excellent result I will amend your thread title to reflect the result.

 

I would add that it is pointless adding 3/4 above...that would be unacceptable by the claimant which could jeopardise the consent.

With regards to the debt being SB ..the clock stopped when the claim was issued.

 

Regards

 

Andy

[citizenB]

Excellent news - I am pleased to hear this is now approaching a conclusion for you.

[kenzo5]

Hi Andy

 

Final question (at least on this thread) - re SB the clocked stopped on issue of claim but if the claim is now discontinued if there is a new claim in future SB date will run from last payment made not issue of last claim?

 

regards

K

[AndyOrch]

Correct kenzo

[Guest]

andyorch. quick general q - when a ccj is set aside, is it correct that sb clock is still then to the original claim date and not the set aside date? thanks. well done kenzo.