Tomlin order - can monthly defaults still be recorded?

[kp278]

Hi

I've been helping a friend with a £16k credit card debt (drawn up by her ex husband)

but I'm quite late to the game and I think there's been a fair amount of letters ignored.

 

We sent a letter to the dca/solicitor - idr finance/Kearns - about a month ago

offering them a repayment and asking for details of how to make payment or set up a standing order.

 

They replied saying they wouldn't agree to a repayment plan without the security of a CCJ.

We have since received (genuine) papers from Northampton bulk centre with an additional £1k in court and solicitor fees.

 

Is it worth partially challenging the amount (the £1k) on the basis that we made an offer/started to mediate before they started a claim?

 

Thanks, Kris

 

PS. We saw a solicitor about the thieving husband but they said even if we sued him,

if he has no money its fruitless and best to draw up a finance settlement as part of a divorce settlement.

 

 

There is equity in their property and he's sent emails accepting responsibility for the debt so my friend will get it back in the next few years.

 

 

One last question -

anyway to stave off this CCJ

ie speaking to credit card fraud department and refuting the purchases on the card (about two years old now).

[AndyOrch]

Thread moved to financial Legal Issues in view of the claim received.

 

KP if you would read the following link and copy and paste your responses here to enable the best advice on how to proceed with the claim.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**

 

Regards

 

Andy

[kp278]

Hi Andy, as per instruction please see details below. We've so far acknowledged the service of the papers via online method.

 

Name of the Claimant? IDR FINANCE UK II LIMITED

 

Date of issue – top right hand corner of the claim form – 15TH JANUARY 2016

 

What is the claim for –

 

1.The claimant claims the whole of the outstanding balance due and payable under an agreement referenced 12345 and opened effective from 16/04/2009.

The agreement is regulated by the consumer credit act 1974, was signed by the defendant and from which credit was extended to the defendant.

2.The defendant failed to make payment as required and by 26/06/2014 a default was recorded.

As at 16/06/2014 the defendant owed Barclaycard PLC the sum of 15000.

3.By an agreement in writing the benefit of the debt as been legally assigned to the claimant effective 16/06/2014

and made regular upon the claimant serving a notice of assignment upon the defendant shortly thereafter.

2.And the claimant claims – 1. 1558023 2. Interest pursuant to section 69 county court act (1984) at a rate of 8% per annum from 16/06/2014 to 14/01/2016 of 184710 and thereafter at a daily rate of 327 to date of judgement or sooner payment. Date 14/01/2016

 

What is the value of the claim? 18200

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Credit card

When did you enter into the original agreement before or after 2007? 16/04/2009

 

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. IDR/LINK

Were you aware the account had been assigned – did you receive a Notice of Assignment? Do not recall

 

Did you receive a Default Notice from the original creditor? yes

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Have received letters but sure they were not headed notice of default sums

 

Why did you cease payments? Debt was drawn up by spouse (now ex) who was paying until june 2014

 

What was the date of your last payment? June 2014

 

Was there a dispute with the original creditor that remains unresolved? no

 

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan?

yes made an offer of payment 16 dec 2015 which was refused,

IDR’s solicitor Kearns cited they would not accept payment offer without security of a CCJ.

[Guest]

acknowledged to defend?

is it a joint liability issue, and they are suing one but not the other (ex)? or is the cred card in her name

[kp278]

Yes I think of top of my head that was the only option to acknowledge service. Card was only in my friends name, spouse used it without her knowledge

[renegadeimp]

For a debt that size to be sold on, theres DEFINITLEY something wrong with it, which is why the DCA is rubbing their greedy little hands and got it in court fast.

[dx100uk]

who was the org creditor please.

 

 

if this involves a none card holder using the card then its fraud

and should poss be defended as such.

[kp278]

Barclaycard

[dx100uk]

sri yes your post said that aready

was on a small screen

 

 

dx

 

known or unknown fraud?

[kp278]

Brief chronology...

Ex spent on credit card.

Friend found out and confronted ex.

Ex apologised and promised to pay back and not do it again.

Ex did it again.

Friend found out.

Both times happened while they were together.

Ultimately both times it was going on my friend didn't know until the statements came through the door.

 

this hasn't been reported as fraud to anyone - should we be reporting this to barclaycard now - will that put a halt on proceedings?

[AndyOrch]

this hasn't been reported as fraud to anyone - should we be reporting this to barclaycard now - will that put a halt on proceedings?

 

Rather pointless...is it actually fraud ? Why did she not report it at the time and have him removed from the card ?

 

I think you are going to struggle to sell the " he used it without her consent "...the arrangement should have been severed the day the relationship hit problems.

After all we could all use that reason.

[kp278]

He was never on the card, it's solely in her name. We have emails from him admitting he ran up the debt. Happy to be led by the greater knowledge here on the best way to proceed

Edited February 2, 2016 by kp278
added info

[AndyOrch]

And she never considered changing the pin number ?

[kp278]

it was used online and via paypal so no pin needed.

ultimately she forgave her husband and believed him when he said he wouldn't do it again

and at the time of the default believed he was paying the debt.

 

 

there has been a certain level of neglect here in that a closer eye on statements and letters

would have prevented this but we are where we are and now how best to deal with it from here.

 

 

my friend makes no excuses and she has regrets but can only learn from those mistakes she can't change them.

Edited February 2, 2016 by kp278
added info

[AndyOrch]

Appreciate that kp ...Im just playing devils advocate as this is the kind of questions that will arise as the claim progresses.

[kp278]

hi, following on from my comment a few posts above, is there any value-add in reporting the fraud at this stage?

[theoldrouge]

I take it that you have sent the s78 request to the claimant, and the cpr31.14 to the claimants solicitors?

[AndyOrch]

hi, following on from my comment a few posts above, is there any value-add in reporting the fraud at this stage?

 

The problem is proving its fraud and getting that accepted as a credible defence?

[kp278]

yes but only sent them yesterday

 

The problem is proving its fraud and getting that accepted as a credible defence?

 

Would it be more of a credible defence if we reported it to barclays as such? Once we dispute the charges on the card would the dca have to temporarily cease action on the debt?

 

Would it be of any help if I posted up some of the email conversations between my friend and her ex where he supports the card usage was him? edit: if better to garner opinion from the forum on the credibility of arguing fraud as a defence?

 

If there's a considerable risk that we would lose and be lumped with costs I think my friend would rather accept the CCJ on the premise that she will get her money back when their house is sold.

 

personally i'd like to see him investigated for fraud, but that's neither here nor there...

[AndyOrch]

Well..as the debt has now been assigned to Plink...I doubt you would have much joy in dealing with BC...they have assigned a disputed debt (assuming they were aware ?)

 

I personally don't see any risk in continuing to defend....at the least you are entitled to challenge and query that the claimant is legally entitled to enforce the debt and has the paperwork dotted and crossed and in order.

 

Costs as you state are a risk as this will be Fast Track...so that must be taken into consideration also.

[kp278]

Well..as the debt has now been assigned to Plink...I doubt you would have much joy in dealing with BC...they have assigned a disputed debt (assuming they were aware ?)

 

I personally don't see any risk in continuing to defend....at the least you are entitled to challenge and query that the claimant is legally entitled to enforce the debt and has the paperwork dotted and crossed and in order.

 

Costs as you state are a risk as this will be Fast Track...so that must be taken into consideration also.

 

Nobody is aware of the fraud. Initially BC were not told because they were very much a couple and friend didn't want to land her husband in trouble. Then when we saw solicitor they said no point as if he has no money it won't achieve anything.

 

This paperwork - am I likely to be fighting for it until I receive it in a defence pack and if it was all in order could we change our mind at the 11th hour to admit said claim or would we still get hammered for costs once a date is set?

 

There's also the decision to make on whether we challenge the whole claim on fraud or challenge the additional solicitor and court fees given this ccj came after we attempted to negotiate.

 

I'm mindful of the fact this isn't my fight and don't want to end up with my friend getting stiffed for costs because I thought we had a shot at defending it. I'll brief her and she can make her own decision as the thread grows. Thanks

[dx100uk]

post 19?

 

 

id be treating it as a std claim then

AOS

defend

all get CCA and CPR running now

[kp278]

Hi, we have received responses to CPR and CCA request.

 

CCA response advises IDR need to request CCA from Barclaycard - will confirm where we are on the 12 day timeframe shortly.

 

CPR response attached.

It mentions they would agree a repayment plan but only with the security of a court order, which grinds a little. If we can get them to agree to a repayment plan without a CCJ we'll take it - as I said earlier we can get the money back one way or another - the big win for us is to get past this without a CCJ.

 

added cca response. it mentions may be 30 days to respond

[dx100uk]

and did you admit the debt to them after consulting legal advise?

I sincerely hope you didn't write that in either the CCA nor the CPR??

[kp278]

potentially...

 

this is what I sent them prior to receiving any court papers. (cca and cpr request were standard templates from cag)

 

"Following my meeting with the solicitor I understand I currently remain liable for the outstanding debt.

To fill you in briefly the debt was run up by my ex-husband without my knowledge and I am exploring other options I have to resolve this issue including speaking to CIFAS regarding the fraudulent activity on my card.

 

 

My solicitor also advised once I am able to re-mortgage our jointly owned property

they can draw up a consent order to use a share of the equity to settle the monies owed to me from my ex-husband

which I will use to settle this debt.

 

 

Until such time as another resolution is in place I accept my responsibility to the debt and am willing to agree a payment plan.

 

I am not in a financial position to pay the full amount owed and I can offer a sum of £150/month.

I am happy to review this at a future date.

 

 

Please advise the methods of repayment open to me.

I would prefer to set up a standing order if you could confirm a sort code,

account number and the reference number to use."

 

to which they replied they still wanted to proceed with the court order