On a DMP for 9 years - now being taken to court

[sleepless123]

Hi - I am a first time poster here. Hope someone can help.

 

I've been on a DMP for nine years for all my debts. I've never missed a payment.

 

3 weeks ago received a letter from one of the DCAs saying because it would take so long so be repaid they were initiating court action. The letter went on to say they had no intention of forcing the sale of my (jointly owned) property, nor was it a way to make me pay more than I could afford but "they wanted security". (I don't believe them)

 

Last week the court papers arrived. (along with a further £300 of charges)

 

I phoned them and they said if I increased my payments tenfold they would still go for a CCJ but not a charging order.

 

I think its unreasonable because I can't afford to pay more, plus I have show myself to be willing to pay for the past nine years and I want to contest what they are doing.

 

However, there is not a box on the court form which is suitable. Am I contesting the court's jurisdiction, or am I contesting the amount?

 

As further info, the debt is no longer on my credit file.

 

And a final question, can unsecured debt be turned in to secured debt?

 

Has anyone got any ideas on how I should proceed?

 

Thanks

[citizenB]

Can you just pause for a moment.

 

Can you let us know the date of issue on the claim form - top right hand side of the form.

 

You have a timeline to adhere to

 

Issue date + 5 days for service + 14 days to acknowledge + 14 days to defend.

 

If you want to challenge this, defend, then we can help you do this.

 

I find their statement that they will not go for a forced sale to be quite disingenuous if they are receiving their money then why are they going down this route ? It is indeed very rare that a charging order ends in a forced sale. What they are seeking to do is to prioritise their debt above your other creditors and to secure it on your property.

 

You are not contesting the court's jurisdiction - any hearing (if it gets that far) will be held in YOUR local court.

 

In addition to the information requested above can you please let us know a little more about the debt.

 

When did you enter into the agreement (year)

What amount is the claim for (above or below £10,000)

 

Who are the claimants - is it the original creditor or has the debt been assigned and to whom.

 

Whilst you have been maintaining your payment plan via the DMP, have charges and interest ceased or have the continued to add these.

 

Do you know if there have been many default/penalty charges added to the debt - you can in fact reclaim these, they are unlawful.

 

Was there any Payment Protection Insurance on the account - this could have been mis sold.

 

Can you please also let us know exactly what it says on the claim form - The reason they are bringing this claim against you.

 

With the information above, then we will be able to advise further.

[citizenB]

If the debt has been assigned, to whom and when exactly did this happen.

[sleepless123]

Thank you for responding.

 

The date of issue is 8th May.

 

I entered into the agreement in 2000.

 

The claim is for £5500 and debt was originally with MBNA

 

The particulars of the claim are that in " The claim is in respect of a credit card provided at the defendants request in 2000. Failure to meet requests for payment resulted in the account being defaulted. In 2004 all legal and beneficial interest was assigned to XXXXXXXXXX (shall I put details of the company? Do they read these?) The defendant was duly notified in writing of the assignment and that a balance of £7500 was due. the balance of £5500 remains owing from the Defendant."

 

There has been no further charges and interest added and I did not have PPI on the account.

 

Thanks

[citizenB]

Thank you for responding.

 

The date of issue is 8th May.

 

I entered into the agreement in 2000.

 

The claim is for £5500 and debt was originally with MBNA

 

The particulars of the claim are that in " The claim is in respect of a credit card provided at the defendants request in 2000. Failure to meet requests for payment resulted in the account being defaulted. In 2004 all legal and beneficial interest was assigned to XXXXXXXXXX (shall I put details of the company? Do they read these?) The defendant was duly notified in writing of the assignment and that a balance of £7500 was due. the balance of £5500 remains owing from the Defendant."

 

There has been no further charges and interest added and I did not have PPI on the account.

 

Thanks

 

Righto, well they are not telling the truth are they. You have not failed to make payments at all.. tsk, tsk.

 

Yes please if you could let us know the name of the current owner of the account.

 

Your time line is ..

 

Issue date 8th May + 5 days for service = 13 May + 14 days to acknowledge = 27 May + 14 days to submit a defence = 10 June.

 

You can acknowledge on line using the MCOL password on the claim form and you can also submit your defence this way.

 

I will flag your thread for some more experienced advice.

 

However, can you please give us some MORE information.

 

What happened to bring you to this point.

 

You have been in a DMP for 9 years, was this started when the account was with MBNA or since the new owner had possession ? Are you with a free or fee paying DMP.

 

BTW, just to let you know that they would only ever be able to obtain a restriction on your share of the property, not on your partner's share

[citizenB]

have put out an S.O.S for others to pop in - this might be later today or tomorrow.

[citizenB]

Is this the larger of your debts - with the DMP ?

[dx100uk]

urm.. seems a bit iffy to me...

 

who's the dmp with?

 

who's shown as the owner if its on your cra file?

 

who is the claimant please?

 

and as with all your debts

never ever discuss them on the phone EVER!

 

dx

 

 

if its not MBNA, then have you ever had a notice of assignment from the claimant?

 

dx

[MDK]

Have you ever asked MBNA for a copy of your agreement? If it was taken out a long time ago they won't have one more than likely

[sleepless123]

urm.. seems a bit iffy to me...

 

who's the dmp with?

 

who's shown as the owner if its on your cra file?

 

who is the claimant please?

 

and as with all your debts

never ever discuss them on the phone EVER!

 

dx

 

 

if its not MBNA, then have you ever had a notice of assignment from the claimant?

 

dx

 

Hi

It is not on my Credit File - I'm not sure when it dropped off.

 

The letter of intention was from DLC, the claimant is Hillesden securities, and Aplins is the company to send correspondence to. So how do I find out who actually owns the debt? How can there be 3 interested parties?

 

Also, I don't recall having a notice of assignment. Everything happened in 2004 when I went on the DMP.

 

thanks

[sleepless123]

Thanks Citizen B - no this is not the largest of my debts

[Ell-enn]

Huh DLC! I might have known, they just love going for charging orders

[dx100uk]

who s the dmp with

 

dx

[citizenB]

Hi

It is not on my Credit File - I'm not sure when it dropped off.

 

The letter of intention was from DLC, the claimant is Hillesden securities, and Aplins is the company to send correspondence to. So how do I find out who actually owns the debt? How can there be 3 interested parties?

 

Also, I don't recall having a notice of assignment. Everything happened in 2004 when I went on the DMP.

 

thanks

 

The Debt will be with Hillsden Securities then.

 

No, the debt will not show on your credit file as it is over 6 years old from the date of default.

 

You say you have not received a Notice of Assignment - What about a Default Notice from MBNA themselves ?

 

Can you please let me know what happened in 2004.. had you stopped payment or did you go directly to the DMP and go from contractual payments to reduced payments. Had you attempted to get MBNA to reduce the payments prior to the DMP involvement.

[citizenB]

Here you go. You need to send this to the Solicitor who is mentioned on the claim form - please read it carefully because there are one or two places where you have to add your name, date and other personal information. Also, I have highlighted one section in Red. If you have never made a request for a copy of the agreement. Then delete that highlighted section. Send the letter via Recorded delivery in order that you obtain a signature of receipt.

 

This is a request for All the information they have mentioned in their Particulars of Claim.

 

 

 

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) county court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1: the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2: the assignment

 

3: the default notice

 

4: a statement of account or statements from inception showing how the sum on the claim being made has accrued.

 

 

 

Although your claim is for a sum which is not more than £10,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise

 

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

 

[citizenB]

I am just popping another summary here so that when the more experienced bodies arrive they can keep up !

 

The claimants claim is that you have stopped making payments when in fact you have been in a DMP with them for 9 years. They have in effect lied on their claim form.

 

They have written to you confirming there is indeed a more sinister plan on their books and that is to prioritise THEIR debt over others that you are also making repayments to, by way of a Charging Order. This I think is wrong and puts the entire plan with your other creditors in jeopardy as they have taken no such action. They are not the largest debt you have.

[dx100uk]

we don't know who the dmp is with

they might have been pocketing the money ?

 

so SB'd..

 

bit it appears the DCa was one being paid thru the DMP

 

something smells here.

 

cca to aplins? [useless lot they'll ignore it, you'll get the case dismissed]

 

SAR to MBNA pronto!

 

dx

[sleepless123]

The Debt will be with Hillsden Securities then.

 

No, the debt will not show on your credit file as it is over 6 years old from the date of default.

 

You say you have not received a Notice of Assignment - What about a Default Notice from MBNA themselves ?

 

Can you please let me know what happened in 2004.. had you stopped payment or did you go directly to the DMP and go from contractual payments to reduced payments. Had you attempted to get MBNA to reduce the payments prior to the DMP involvement.

 

It was so long ago that I cannot recall. When I first got into difficulty I contacted all the creditors but they wouldn't begin a dialogue until 3 months non payment had gone by. By this time I had the DMP in place with CCS and they dealt with everyone.

 

Thanks for the copy letter on your other reply. I have done the AOS on the MCOL site so I now have until 10th June to write my defence. So who should I send the letter to? dx100uk mentions SAR to MBNA and CCa to Aplins. Is the letter you've posted a SAR? I'm sorry if I sound dense - I'm a bit baffled by all the acronyms!

 

Thank you

[sleepless123]

Thank you dx. The DMP was with CCCS so all payments were made.

Its so confusing with the 3 companies involved. How do I find out who actually owns the debt?

thanks

[dx100uk]

sent this to the claimants solicitors aplins

 

 

 

The Loan Company

 

Company House,

 

Church Street,

 

Newtown,

 

Kent,

 

R1 7HG

 

 

 

Dear Sir/Madam

 

 

 

Re:- Account/Reference Number 4563210025897412

 

I do not acknowledge any debt with your Company or Associates

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide, including a detailed statement of the account.

 

 

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

 

 

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.

 

 

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection From Unfair Trading Regulations 2008 (CPUTR).

 

 

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

 

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

 

 

We look forward to hearing from you.

 

 

 

Yours faithfully

 

Mr A N Other

 

 

.................

 

click the black underlined sar

 

and send that to MBNA

 

dx

[citizenB]

Thank you dx. The DMP was with CCCS so all payments were made.

Its so confusing with the 3 companies involved. How do I find out who actually owns the debt?

thanks

 

 

The company that owns the debt will be the one who is taking you to court. The claimant.

 

However, if you were never given a Notice of Assignment, then you should be asking them to prove that they have the right to bring this action.

 

We have asked for this Notice within the CPR31.14 request that I posted up for you in an earlier post.

[sleepless123]

Hi there

Thanks for the template. I sent this off and received the following:

"We acknowledge receipt of your request for disclosure filed in accordance with Part 31 of the Civil Procedure Rules. We are awaiting confirmation from the original lender and will forward it to you in due course. We confirm that your account will remain on hold until we have done so. Should you require an extension of time to file your Defence pursuant to Part 15 of the Practice Directions, we will consent to an extension of 28 days."

 

So this was dated 22nd May. I haven't received anything else from them in the meantime. I have until the 10th June to file my defence so what do you think my next step should be?

 

Thankyou

[citizenB]

You need to ask them to confirm in writing that they will agree to an extension of 28 days and a date. So if your original submission date was 10 June you need to ask them to confirm they agree to an extension of say 10 July.

 

I have popped a draft letter for you below. When you receive their written response to this, you then need to contact the court with the 2nd letter I have drafted and posted up for you. It is the defendant's (you) duty to inform the court of the extension.

 

Letter to send to solicitors for their written confirmation of the new filing date.

[ATTACH=CONFIG]44321[/ATTACH]

 

When you receive their confirmation, you will enclose a copy of your original letter and their agreement with the letter below - to the court.

 

Can you please check the Court address - I have is the same one on your particulars of claim and amend if incorrect.

 

Court Manager - new filing date - Draft for Forum.pdf

[sleepless123]

Thanks for this citizen b - but why should i givie them another 28 days to look for the paperwork? Cant i ask for it to be thrown out on the grounds that they can't find the agreements etc?

Thanks

[citizenB]

You don't have to give them the extra time at all. If you wish to submit a defence on the 10th June, then that is your right. However, you can only respond to the claim with the information you have. This will mean if they then provide the information later on, you will be forced to re-evaluate your defence which COULD lead to costs.

 

It is very unlikely that the court will strike out a claim immediately.