NRAM / Marlin / Mortimer Clarke Claim***Settled by Tomlin Order***

[truaguns]

Draft defense below, im not sure if 4,5 & 6 are applicable?

 

1. I requested information pertaining to this claim by way of a CPR 31.14 on 15th March on the 20th March I received a reply containing a copy of the first page of a credit agreement, with no terms and conditions and also a copy of notice of assignment. Also included was a note saying the claimant was taking their clients instructions to the remainder of my request:

 

The default notice

Termination notice

Statement of account

 

I appreciate that a CPR31.14 is a civil request and the claimant is not compelled to reply, but having confirmed they would supply the requested documents they failed to do so.

 

2. On the 27th March a Section 77/78 request was made to the claimant, this was signed for by the claimant on 28th March. The claimant has declined to respond and remains in default of the section 77/78 request.

 

3.The Particulars of Claim are denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement or contract with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show the nature of breach and provide evidence of any Default Notice and Notice of Sums in Arrears

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

5. Furthermore, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 and 196 of the Law of Property Act 1925 and Section 82 (a) of the consumer crediticon Act 1974.

 

6. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[AndyOrch]

As its one of my defences and your claim is subject to the debt being assigned 4/5/6 are very applicable.

 

Regards

 

Andy

[truaguns]

Hi Andy, thanks so much. So i'll submit that defence through MCOL. Sorry to be nit picky but point 5 mentions law of property act 1925. Sorry to sound a bit dumb but does that apply to a secured loan? Mine was unsecured. Just dont want to put in anything that will come back to bite me..

 

Thanks

[AndyOrch]

The Law of Property Act 1925 legislates debt assignments...not secured or unsecured loans truaguns:madgrin:

[truaguns]

Hmmm, i now know how people must feel when they ask me stupid questions about fixing their servers...

 

Thanks Andy, i'll submit the defence now.

[truaguns]

OK submitted defence, last question before the easter break .

 

On post #23, i mentioned that they'd taken the original loan off of my credit report and replaced it with their own version, showing a default for feb with no history, while the previous NRAM entry showed amounts going back to start of loan. There is now an entry for march increasing the balance by £21. Can they just go into people credit reports creating entries and deleting others when a claim is in dispute?

 

Have a happy easter all.

Edited April 17, 2014 by truaguns
typo

[AndyOrch]

In a word ..yes...as they are now the legal owner of the debt.

[mrichard4]

Do we know what outcome of this case was?

[truaguns]

Had a letter from them about a month ago, saying they were going to let the claim be stayed while they take further advice from their clients...

[AndyOrch]

" take further advice from their clients...":lol: my a***

[truaguns]

Well put... Waiting game now.

 

Think i'll have an MKDP (different) one coming up, multiple calls, texts and letters the last month. Latest letter, last one before legal action, but it's not too late to settle before action... We'll see.

[truaguns]

Hi all,

 

Nothing heard from Marling or Northampton in last 3 months, is it best just to leave it as is or should i go for a strike out / set aside?

[AndyOrch]

Well there's nothing to set a side at the moment and a strike out can be very risky and expensive should they fight it....its not doing you any harm why bother?

 

Andy

[truaguns]

Thnaks Andy, i'll leave it to wallow..

[truaguns]

Hi All,

 

Finally had a reply from Mortimer Clarke. See attached.

 

The only new thing they have given me is the terms and conditions, which may or may not be from the original and 2 plain pieces of paper with payments made with the account number as reference along with dates and amounts (I've not scanned this).

 

There is an odd thing on this sheet, the payments start in Sep 2006 and there is a regular payment for the same amount each month, however on the March 2008 payment they have an amount of £0, although it says 'payment made thankyou', this march payment is never taken again elsewhere. I have checked back and know 100% that the payment was taken from my account on the date indicated for the usual monthly amount.

 

They have resupplied the signed agreement, but it still does not seem to be from the original, but rather a print out of a microfiche. It seems to be from the same source as the T&C's so why they didn't send these originally i don't know. Makes me wonder if the are reconstituted from elsewhere.

 

With regards to the default notice, which i am also 100% sure i never had. They claim that this was issued by the original lender in August 2011, but fail to include it.

 

They have supplied a expense sheet, which is nice of them..

 

Not that this has much bearing on it but i have moved since the original correspondance, probably why the letter is dated 4th Sep and i didn't receive it until the 15th. they've also kindly given me 7 days to reply, despite the fact they've kept me hanging on for almost 6 months.

 

Anyone have any thoughts on a response, I'm not really to sure what to go back with.

 

Thanks all, round 2!

[AndyOrch]

So it looks as if they have all that is required to proceed ...it your call now if you wish to call their bluff or offer a proposal.

 

Regards

 

Andy

[truaguns]

So, they have no default notice, which they mention in the particulars of the claim, a payment schedule that's has errors and a scan of an agreement. Do they not have to show an original at some point?

[AndyOrch]

No creditor keeps a hard copy of Default Notice....they just have to show from their data that one was served.

The agreement appears to be the original to me...errors on a statement does not determine that you are not liable for the alleged debt.

[truaguns]

Thanks Andy, I was going to send a letter to them:

 

*******************************

 

You mentioned in the particulars of claim, a default notice which was alleged to have been issued by the original creditor on **/**/2011. I have never received this, as you have made mention of said default notice in your claim it is your responsibility to provide a copy on request or make available at some time during the proceedings.

 

You have provided a copy of an account statement, this has errors on.

 

Further to the above, could you please provide the correct statement of account and a copy of the default notice?

 

Although you have taken almost 5 months to respond to my defence, you now expect me to reply in 7 days, despite me not receiving your letter until 15/09/2014. I feel it is unreasonable for you to expect such a quick response. ********************************

 

But from what you say this is pointless, what do you mean by call their bluff? Just ignore them and wait for the directions questionnaire etc?

 

At what point do these compaines usually end negotiations and go straight for the CCJ. What i mean is, before judgement is issued can you still negotiate right up until then. I have read about Tomlin orders etc.

 

Thanks again.

Edited September 17, 2014 by truaguns

[AndyOrch]

This is the position...they have made a claim you have submitted a defence...that is your final response for now.They had no need to disclose the above at this stage ...that comes further into proceedings just before trial date.

 

They are testing the water and trying to get a response from you (from the above you are about to fall for it) and in a way trying to mediate.

 

They have a couple of options now at their disposal...they can either;-

 

Mediate and try to settle or they can make application for Summary Judgment if they think your defence has no merit and what they have disclosed is good enough to support their claim.

 

Or they can inform the court to allocate the claim and proceed to trial.

 

You can respond...but dont argue the merits of what they have done or not done....but signal that there could be away to settle this by way of a Consent or Tomlin Order but considering their deficiencies within their claim you are only prepared to offer £x and only over a monthly payment plan...no order for costs and no CCJ.

 

Or you could disregard it and sit tight and await any allocation and proceed to trial.

 

Settlement by Consent is not a failure it puts you back to pre litigation...on a firm footing with regards to repayments...no judgment and no costs....unless of course you consider that you are not liable for the alleged debt...partially or at all.

 

Andy

[truaguns]

Hmmm ok Andy Thanks.

 

You've made my options clear and given me something to think about. I'll give it some thought and let you know what I decide, assuming other caggers are interested.

 

Thanks again much appreciated.

[truaguns]

So I've had a think and I'm not prepared to just go ahead and offer a settlement, when in effect they haven't given me anything they hadn't already supplied 5 months ago, other than an incorrect statement of account and a note saying the default notice was sent, with no proof, seeing as they state in the particulars the DN, shouldn't they have a copy?

 

The question is do i go back to them saying these things and see what they say or just ignore them and see what happens. I assume they will go ahead with the CCJ, in which case i'll go from there. I've also moved from the address they're sending correspondance to. I guess i should inform them of my new address?

 

Also what's the difference them going for summary judgement and them getting the court to allocate. I thought (naively) they were the same thing..?

[AndyOrch]

Summary judgment is in effect judgment without full trial...the case is determined on their application and WS.

[citizenB]

Yes, you must inform the court and the claimant/solicitor of your new address as both are likely to be sending you correspondence.

[truaguns]

Hi All,

 

Just a quick update, i settled this with a Tomlin order payable monthly over 3 years, total to be paid back a lot less than that which was claimed.

 

So in a way it could be deemed a success, but who knows if i had been willing to stay the course.... Anyway settled now.

 

Huge thanks to Andyorch and citizenB, without your help I would have been lost.

 

Thanks again.