Disneyman scenario??

[Pere Ubu]

I read with interest Disneyman's story. I am in court the end of April with Asset Link who bought my debt off First National. Charges/penalties were applied when First National had the debt.

 

Asset Link got a CCJ last August and have since been trying to get a charging order. I have been to court twice now and have manged to get it adjourned becuase of Asset Link's paper work not being in order. I have since the CCJ been educated re charges and know that the debt is now in dispute. I did write to the District Judge at Northampton County Court about the CCJ but never received a responce. The debt is being serviced through Payplan whom I feel have let my husband and I down badly (joint debt).

 

Is it too late for me to follow Disneyman's scenario i.e. ask for adjournment etc. Can I argue that with regards the original CCJ yes we agreed we owed the debt but have since realised re the charges issue? It is not a great amount we are claiming back in charges but the fact is it's something. We are being charged interest on the total amount. The judge last December Stayed costs but Asset Link still put them on statements and charge interest on that as well. Two amounts have appeared on our statements that they cannot/will not explain. They say because they are there they must be right.

 

Where/whom do I claim back these charges from First National applied them but Asset Link have bought the debt.

 

Thanks for any guidance/advice.

[BankFodder]

Writing to a judge is useless. not because theyare not interested but because the judge is in an impossible position and wold not be permited to reply.

 

Your problem is that the CCJ was obtained a long time ago. Did you admit it? Was it merely given in default?

Disneyman had a difficulty in that he had admitted the debt. However, quite rightly he said that he had done this because the Nationwide had breached their fiduciary duty towards him and had mislead him and the court as to the lawfulness of the charges.

 

If the judgment against you was a default judgment because you did not respond then the matter will be easier.

Let us know.

 

If you want to try and eal with this you would need to start with an application to set the judgment aside. You do this by filing an application notice. It costs £60. If you win you will get it back. If you fail then it is lost money.

 

If you do decide to make this application then it will have to be made against First National as they were the orginal claimant. It is their judgment.

If you try this, it will certainly cause some excitement. very sporty.

 

Let's more info. £.s.d would be interesting too.

[Pere Ubu]

We defaulted because the CCJ was for the full amount we couldn't repay te full amount so therefore we defaulted. We did admit to the debt because we didn't know about the charges etc. The CCJ was obtained by Asset Link not First National does that make a difference? First National have nothing to do with us now.

 

If the action lies with First National how do we deal with the fact that Asset Link apply interest to the debt which includes the charges? How do we claim back the interest they charge on part of a debt made up of charges that were applied by another compan(First National).

[BankFodder]

When is the next hearing?

If Asset link are the country court claimant - the judgment creditor then you continue the action against them.

 

How much is the judgment for and how much are the charges?

[Pere Ubu]

The charges are small compared to the debt. Charges of £200 and the debt is about 6k. Will this make a difference. They are applying interest as well. We want to stop them from getting a charging order as we feel they will then go for sale of property.

 

Payplan have ignored our pleas for help and advice (letters, telephone messages left, email, guaranteed delivery letters). Eventually we got through only to be told they no longer respond to letters etc as they have too much work. They did say to get a variation order. So we applied to vary the CCJ and have just opened the post this morning to read we have a hearing 18 April (variation order) and the Charging Order hearing is on 23 April. Shall I argue at the variation hearing re charges?

 

Just to clarify - is my action re the charges against Asset Link now?

[BankFodder]

If Asset link are the country court claimant - the judgment creditor then you continue the action against them

 

Also, in Disneyman's case, his charges were more than the amont cliamed by the bank.

 

As yours are only £200, I am afraid that the judgment is substantially correct and you won't be able to affect it.

 

On the charges, begin a claim against who ever owns the debt now for the £200 but I'm afraid that I don't think that there are many grounds for doing much else.

 

You could begin your claim right now and then on the 23rd of April yuo will probably be able to get them to agree to reduce the debt by £200 plus whatever interst has been charged on it. Probably not much else to be done.

[Pere Ubu]

Below is the statement submitted with the Variation Form:

 

 

Witness Statement of Mr xxx and Mrs xxx.

 

We realised we were in financial difficulty in January 2005. We immediately contacted First National on 30/01/05. In this letter we informed First National of our difficulties and also advised them that we were seeking help and advice from PAYPLAN, a free debt management company, to address the situation. In this letter we asked First National to bear with us whilst we awaited PAYPLAN’s advice. We also asked for First National to freeze the interest being charged on the account;

 

PAYPLAN took details of all our creditors and assessed our income and expenditure. As a result of this monthly payments of £37.34 were made to Asset Link in respect of this account. This payment was arrived at by PAYPLAN by dividing our disposable income between our creditors and arriving at a pro rata figure. This is a banking industry formula which is standard procedure in cases such as this. First National and subsequently Asset Link would be aware of this formula. Payments were commenced by PAYPLAN early in 2005 and have continued;

 

Asset Link have been made aware of the other creditors by PAYPLAN and ourselves.

 

We received County Court Judgements for this account in August 2005 that stated that “apart from a charging order all other execution is stayed as long as the defendants pay £18.67 per month“ (District Judge Elliott). Payments have been regularly made by PAYPLAN on our behalf. In fact we have been paying £37.34, which is over and above the CCJ amount, for nearly a year. We wish apply for a variation order to pay £37.34 per month. Attached is an income and expenditure sheet.

 

Furthermore, since the issuing of the CCJ my husband and I have been advised that the total amount it is claimed we owe is incorrect as it includes charges applied to our account by First National before they sold the debt to Asset Link. My husband and I believe these charges are illegal. We are of the view that the charges represented a penalty and are therefore irrecoverable at common law. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. The charges do not reflect any actual or real loss, instead they appear to represent a lucrative profit-making scheme.

 

On a separate note, the charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). Our account fell within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we are consumers. The charges constituted an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:

 

‘Indicative and non-exhaustive list of terms which may be regarded as unfair - 1. Terms which have the object of effect of - (e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.

 

0n 26 July 2005 the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the cardholder for breach of contract'. Because the charges included a lucrative profit margin, in addition to actual loss, they are irrecoverable as an unfair term in contract.

 

We believe that the charges required us to pay a disproportionately high sum in compensation without mutual agreement.

 

We have written to both First National and Asset Link requesting a list of all charges applied to our account. This request was made under the Data Protection Act (1998). This information is personal data and therefore covered by the Act as ruled in Durant vs. Lloyds TSB case, where the judge ruled that bank statement information is indeed personal data. It is only when we have this information that we will have a more accurate figure that should be reflected on the CCJ.

 

Asset Link have applied for a Charging Order based on these figures and therefore we believe, if successful, they would be securing a debt against our property that may be larger than the actual debt.

 

We respectfully ask the court to make an order for payments to be made at the current level of £37.34.

 

 

We, Mr xxx and Mrs xxx, certify that the facts stated in this witness statement are true.

[disneyman]

Hi all, Who made the charges against you and when?

 

If First National made the charges then they have the funds which were taken from you

 

If Asset link then they have them.

 

I would therefore ask who ever took them from you to give them back. If First National has them then great as they won't be able to hurt you anylonger i.e. by increasing there interest rates.

 

If I were you I would also be constantly trying to contact Payplan too get them on the case of Asset Link. I too am with Payplan and I must admit that at times it is quite difficult to get hold of them. Which team are you with ?as I know that they have recently changed there phone No and I have it if you want it just PM me if you want it.

 

I also find it difficult to understand why Asset Link are charging interest. Most of the Debt collection agencies who my debts have been sold to are not charging interest :?

 

I will also be in a similar situation as yourself with Nationwide (again) this time with a credit card debt of £6000 and charges on it of £375. I also let this one slip through the net as the judgement came through last October. I havn't pursued it yet as I know this one may be quite difficult to resolve due the time period between the judgement and our response I will be pursueing it though (one way or another). Iv'e nothing to lose by doing so.

 

Another aspect to our case was the fact that we filed a reconsideration notice within the 7 day time frame (which was free) to the court manager not the judge, this assisted us in the fact that the judgement was kind of put on hold. If Id have known then what I know now I would have applied to have it set it aside. This is also free and would have had a better effect than the reconsideration notice. The case would then be transfered to your local county court to enable you to make your representations.

 

For some reason Payplan only seem to know about the variation order and are unaware of either challenging the judgement or requesting a reconsideration order. This baffles me as the variation application costs money, money which they are trying to save you!!!.

 

Only after you have explored all avenues and the judgement is set in stone (this is after the 7 day period after the judgement is made) should you submit the variation application.

 

You could also consider speaking to Payplan reference going onto an IVA plan. This would stop all interest on all debts. Or maybe your in the same boat as me who can't afford to go on IVA (as daft as it sounds).

 

Please get in touch with me if you need any further advice. Hope this has shon a little light on the situation.

 

Disneyman

[Pere Ubu]

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