got 2011 MBNA CCJ/CO [ignored] - now restons/marlins have issued an SD - help

[johnnyboyrevel]

Hi Guys

 

Looking for some advice re the problem I`m having with Stat Demand from Restons & MFS Portfolios Ltd.

 

I had a creditcard with MBNA which I took out in 2008 and

 

 

all was well until I was out of employment in 2011 and couldnt afford the repayments

 

 

defaulted in April 2011 when the balance was £5798.66.

 

 

MBNA then took it to Nottingham county court in Jul 2011.

 

 

Looking back now I should have attended but as was unemployed couldt afford to.

 

 

They got a judgement for me to pay £300 per month which I have never done.

I also believe they have got a charging order against my property.

I`ve had a few phonecalls from Restons over the years but ignored them.

 

 

Earlier this year I got a letter to say debt had been assigned to MFS Portfolio Ltd and they threatened legal action.

 

 

ignored it and got a stat demand for £6706.68 from MFS portfolio with Reston Solicitors acting on there behalf.

 

I sent a CCA letter to MFS Portfolio and a SAR to MBNA and submitted a set-a-side

saying I disputed the amount and that MFS Portfolio had failed to provide a copy of the credit agreement.

 

The Judge has allowed a hearing at the beginning of November.

 

Following that Marlin Financial Services Ltd (Not Even MFS Portfolio the people who raised the stat demand)

sent a letter saynig they didnt have copy of loan agreement or statement of account, but would request from mbna.

 

MBna have since sent a rack of papers that includes a Credit agreement but doesnt have my signature and is ticked as representing my consent.

 

Also since Restons have sent a letter saying that as the liability has already been determined by a county court

there is no requirement for a S.78 request to be compiled.

 

My questions are

1) is the statement from restons correct or is there a obligation for MFS Portfolio to provide a credit agreement to substantiate the debt.

 

2)Even though the County court judgement was for MBNA.

Are MFS Portfolio legally allowed to claim the benefit of the judgement.

I havent had any legal documents from MFS or the court to say they are. Just a letter of assignment.

3)Any tips for preparing for court.

 

Also although I`m working now and could pay a monthly sum

i am no where near in a position to make a lump sum payment towards the balance.

 

Any advice gratefully accepted.

[dx100uk]

MFS are marlins in all their differing guises

 

if pestons say they don't need the agreement

and can rely on the CCJ

then why dont they enforce it then?

 

urm..could it be they were not the claimant

and have not been back to court to get their name substituted...

 

very unlike pestons to pull a dodge like that..not!

[johnnyboyrevel]

Yeah think the letters from Restons are threats to make me come to some sort of agreement. Happy to go to court, but am unsure how it will go and would like some advice to see if im doing the right thing.

[AndyOrch]

Are MFS Portfolio Ltd aware that there is already a judgment for the debt?

 

Regards

 

Andy

[johnnyboyrevel]

I guess they must do as they are using Restons Solicitors who were used by MBMA to get the county court judgement and the letter I received from Restons today refers to there being a county court judgement.

[AndyOrch]

Okay so they are using the Statuary Demand as a basis of executing the judgment...a judgment that was forthwith and which you have not made any payments on?

[johnnyboyrevel]

The judgement was made by MBMA, but it is now MFS portfolio who have brought the debt and issued the statutory demand, but

 

 

I havent had any paperwork from the court to say that I should be paying MFS Portfolio.

 

 

As far as I can make out there was a judgement for me to pay £xxx per month which I havent paid. and

 

 

at some point mbma must have gone back to court and got a charging order against my property.

 

 

I know I should have dealt with this a log time ago, but the legal process is very foreign to me

and I just want some advice to what my options are now.

 

 

Sorry for late reply i didnt see the reply in my inbox

[AndyOrch]

You have had a judgment which stated you pay £300 per month back in 2011...you should have then made application to vary it to a more affordable amount then using the N244 (redetermination).

 

Since no payment was ever made the claimant then secured the judgment by way of a Charging Order on your property so the judgment is now secured.

 

You have 18 days to set a side the SD and your reasons will be that the petitioner already holds security by way of a Charging Order linked to Judgment xxxxxx dated.

 

Go to the legal library download the relevant forms required

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?406102-LEGAL-Form-6.4-amp-6.5-Application-to-set-a-side-a-Statutory-Demand

 

Complete the forms and submit them at the court nominated within the SD.

 

Regards

 

Andy

[johnnyboyrevel]

Thanks Andy

 

Just a few questions:

 

1, I have submitted a set-a-side to the court already saying that MFS didnt respond to my CCA within timelimit

and havent been able to provide statement to balance which I dispute.

 

 

Can I now submit another set a side based on your last answer or should I prepare to take to court with me for the hearing in November.

 

2, Also do MFS hold the legal right to the charging order as they brought the debt from MBMA who the charge order was issued to?

 

3, Can MFS force me to sell my house or into bankruptcy?

Or does the Charge Order just stay attached to the property until it is sold then they would get the money.

 

 

Could I reduce the charge order by making payments?

 

Cheers John

[AndyOrch]

Thanks Andy

 

Just a few questions:

 

1, I have submitted a set-a-side to the court already saying that MFS didnt respond to my CCA within timelimit and havent been able to provide statement to balance which I dispute. Can I now submit another set a side based on your last answer or should I prepare to take to court with me for the hearing in November.You cant make a further application just keep that up your sleeve if needed.

 

2, Also do MFS hold the legal right to the charging order as they brought the debt from MBMA who the charge order was issued to? You would have to check the Land Registry to see if they have been substituted as claimant

 

3, Can MFS force me to sell my house or into bankruptcy? Or does the Charge Order just stay attached to the property until it is sold then they would get the money. OFS order for sale are as rare as chickens teeth Could I reduce the charge order by making payments? Absolutely but if you intend to do that why not just ring MFS and agree a payment plan and ask them to bin the Stat demand?

 

Cheers John

 

Regards

 

Andy

[kayeebee]

I was bankrupted by these this year and am now seeking an annulment.

 

They will quite likely have targeted you as being someone who has equity in their property

and who tends not to deal with important financial matters,

just hoping that they will go away.

That's why I was targeted.

 

Carefully check the statutory demand.

Does it say 'The creditor is willing, in the event of a bankruptcy order being made,

to give up its security for the benefit of all of the bankrupt's creditors.' ?

If it does, they mean business.

 

Normally, a creditor can't bankrupt you if the debt is secured on your property.

However, if they are certain that you have enough equity in your property to cover the debt

and all the other costs of the bankruptcy, they will be willing to remove the security of the charging order

in the event of a successful bankruptcy,

and will include this clause on the statutory demand and on the bankruptcy petition.

 

Insolvency Act 1986

269 Creditor with security.

(1)A debt which is the debt, or one of the debts, in respect of which a creditor’s petition is presented need not be unsecured if either—

(a)the petition contains a statement by the person having the right to enforce the security that he is willing, in the event of a bankruptcy order being made, to give up his security for the benefit of all the bankrupt’s creditors, or

 

Also, the county court judgment supersedes Section 78 Consumer Credit Act 1974, so they will be able to plead that they don't have to provide documentation in response to your request.

 

I strongly recommend you quickly come to some agreement with them before the 18 days are up.

 

At the same time,

if you have any inkling that there could be any problems with their paperwork,

and if you are up for a bloody battle,

I also suggest that you send a Subject Access Request (SAR) to both MBNA and MFS Portfolio

to find out what documentation they actually have.

 

 

I have found out lots of interesting things, such as a forged Notice of Default, no credit agreement,

and question marks over who the debt was actually assigned to.

 

Good luck

[kayeebee]

Regarding who owns the debt,

they will presumably have applied to the court for an order substituting MFS Portfolio as the claimant.

 

 

They will have done this at a 'without notice' hearing (used to be called 'ex parte' hearing),

so you wouldn't have been informed that it was taking place.

 

 

However, the order from the court may well have said that you were to be informed once the substitution had taken place,

but Restons and MFS Portfolio will have ignored that.

 

It looks like they have waited for three years to pass since the granting of the charging order before taking any further action against you.

I believe they are doing this because the courts have a three-year file destruction policy.

Therefore you probably won't be able to check what documents they produced to the court when seeking a CCJ and charging order.

 

You really need to be sure on what legal basis you are seeking a set aside of the CCJ and charging order.

The credit agreement does not require your signature.

Did you apply online?

[johnnyboyrevel]

Thanks for the comments Kayeebee/Andy

 

I`ve checked the stat demand and it does include the phrase "The creditor is willing , in the event of bankcruptcy order being made, to give up its security for the benefit of all of the bankcrupt`s creditors"

 

I`ve also called the land registry and they confirm that it is still MBMA`s name on the charge order and they havent had any documents from the court asking for it to be changed. So how can MFS porfolio give up there security if they are not named on it. Presumably this doesnt stop them applying to be changed and re stat demanding me?

 

Also there is a court case ongoing with the developers for building defects meaning that the propertys havent sold in the last two years or at a grately reduced value.

 

I was going to argue the set a side with the non CCA/Statement of account, but you now say that the court order trumps it and now saying that the is a charge order is in place isnt enough as they are willing to withdraw, so I`m at a loss as how to argue in court.

 

If i was to contact MFS is it best to make an offer in writing or speak by phone. As the debt is £7K what sort of monthly payment would they likely except?

[AndyOrch]

Its matter of what you can afford to pay...give them a ring and try to thrash out an amicable agreement.

[kayeebee]

Hi johnnyboyrevel

 

Sorry to have given you such bad news, but I didn't want you to turn up at court and have to pay for the privilege of being thrashed by their counsel.

 

From my personal experience with MBNA, Restons, and MFS Portfolio, who have been happy to provide false documentation to the court in my bankruptcy case (hence my application for annulment), I would not phone them, but rather make sure any communication is in writing.

 

If they were to make you bankrupt, and give up the security, they will have to fight along with any other unsecured creditors for any equity in your home. Do you have any other charging orders on your property? - I believe they will have to be paid off, together with your mortgage, before unsecured creditors get a look in. There will also be the costs involved in the court case and the costs of the Official Receiver and the trustee. If you don't have much equity on your home and no other possessions of any value, and if you share the ownership of the property with any one else, there won't be anything for MFS Portfolio and pals to get their mucky little paws on. You could let them know that (if that is the case), which will give you a lot of negotiating power.

 

I would also do a SAR on MFS Portfolio. Go carefully through all the info sent to you by MBNA and check if it is correct against the documents you have in your possession, such as the notice of default, and the notice of assignment. Be warned, it appears that MBNA can change their case management system retrospectively to suit themselves. This happened in my case but, fortunately, I have the original documentation. Given that MBNA has sold on the debt, even though they had security, you may find that there is something dodgy in their paperwork.

 

Good luck

[kayeebee]

Forgot to say, you can phone up the court which has the county court judgement and ask if MFS Portfolio have been substituted for MBNA.

[kayeebee]

Another thing, if you come to an agreement, make sure you have it in writing, that you keep any records of payments you make, and that you keep to the agreement. Otherwise, they will re-start the process of bankrupting you.

[kayeebee]

The justicegap dot com guide is very helpful.