Varde/Brachers claimform - MBNA card

[AndyOrch]

Hi SH responding to your PM.

 

The Claimant is obviously leading the court here and inviting them, yourself to dismiss the application.There is no order for costs so the risk is minimal except you could by continuing p**s the DJ off should this proceed to trial.Do you feel what they have disclosed is adequate? The argument stated by Car re the assignment whilst technically correct the fact the assignee as notified would be accepted by most DJs.Most if not all creditors do not retain a hard copy DN only record of its issue, the fact that they " may " have reconstructed one, again would probably be accepted.What other arguments could you present should the hearing go ahead? The figure claimed is it correct have they disclosed statements? Did you ask for statements?

 

Regards

 

Andy

[Smoothound]

Thanks Andy

 

They sent statements with the DN and supposed NoA going back to Nov 2007

 

Being a layman I am unsure of what is considered adequate and what is not hence my questions

 

I am still unsure whether the CCA nearer the beginning of the thread is good or bad due to the conflicting ideas and the same could be said for the UR

 

Seems to me I am pretty much at the mercy of the DJ involved on any given day. From what I can take out of this thread my account may or may not have an unenforceable CCA, may or may not have been unlawfully rescinded and may or may not have a dodgy NoA

Edited January 22, 2012 by Smoothound

[Smoothound]

So basically what should I do now?

 

Write to the court and give in and let them have a couple of pounds a week or is there something left I can actually do?

 

Obviously I need to do something before my application goes ahead on Wednesday.

[car2403]

Feeling a bit better now, God it's been a bad week. Couldn't stand up on Friday morning and thought I was going to have to call 999 as I couldn't breathe. (Asthma)

 

Anyhoo...

 

SH, the issue here is you need to decide the answers to your questions yourself - no one can judge how a Judge (sic) would see the claim, so you need to come up with the arguments needed to sway him in your favour on the balance of probabilities.

 

Depending on how you see the NoA issues, the next step is to decide if you have sufficient detail in the claim to defend - this isn't about documentation, as what they've sent you is probably sufficient to support what we think they are claiming, but the wording of the claim is insufficient to enable you to defend the claim properly. No mention is made to the agreement, no detail of how the amount has been calculated, etc. The NoA was always in addition to those arguments.

 

If you think the claim is detailed sufficiently and that the documentation given is in order, the next step is to consider your position on defending. Unfortunately, the technical arguments boil down to if you think the debt is enforceable or not. If so, the DN, the NoA and the rest of it are technicalities, all of which can be remedied by the Court granting time to the Claimant and them taking appropriate action. If not, their whole claim fails, as the other arguments are irrelevant on an unenforceable agreement.

 

This is all about opinions - so collect as many viewpoints as you can - but, ultimately, only you can decide what to do next.

 

My view would be that you should reply to that letter to the Court pointing out that the Claimant is being vexatious by responding to the application hearing, but not responding to the content of the application, and if they care to particularise their claim sufficiently, you would happily withdraw the application and continue to the final determination hearing. (include any issues you still have with the documentation) In either case, further directions are required from the Court in terms of how the case should proceed, but that is secondary to any remaining challenges you have with the claim as it stands.

 

This isn't easy, I know, but unless you know your case inside out and can decide how you think you should proceed, there probably isn't much more we can do to assist other than continue to offer some contradictary opinions. (I actually think the NoA issue is huge, as you could be paying the wrong Claimant, but there you go)

 

Not sure why you'd throw the towel in and admit the claim at this late stage - if you do that now, they may claim costs of wasted applications, etc. One thing you need to think about is why they wouldn't come to the hearing? If they don't turn up, the Judge won't be happy, and this will earn you favour with him - saying it isn't disingenious to not turn up doesn't mean the Judge will agree. They should be turning up to further the over riding objective of speedy resolution. I suspect they think they will lose and want to draw this out and continue to keep you under pressure, so they want to minimise their costs (i.e., losses! ) so it doesn't cost them too much when they do lose.

[Smoothound]

I want to make best use of what I have but I really don't fully understand it all! I'm not that bright/clever so much of this even reading and re-reading goes straight over my head

 

Obviously I need to get something in the post tomorrow or Tuesday at the latest as the hearing is set for just after lunch on Wednesday! If the CCA really is unenforceable then surely that is my best defence but is it? If it really boils down to what side of bed the Judge got out of that morning I am a bit worried!

[Smoothound]

Changing tack slightly then and having followed this thread thus far what would each of you do in my situation now regarding response to Brachers letter before the application hearing on Wednesday? Or I should I just do nothing and see what the DJ says?

[car2403]

Two things: I think you're worried about going to Court yourself. Which Court is this? We may have a Court buddy available that could go with you for moral support. Second thing is, the Judge won't understand it either. Remember that in most cases, Counsel assist the Judge with technical arguments - especially in the County Court, as these Judges really are the 'GP's' (someone will slate me for saying that, but there you go) of the Legal System. They deal with so many types of claim that they won't understand your own in depth. (This is the equivilent of expecting a brain surgeon to work at your GP surgery) It's up to you to be able to articulate your claim and why you should win.

 

On the other hand, though, this is going to be invaluble experience for you. This hearing is about the application, though. Nothing else. So, have they provided what you asked for, what is missing, what directions should the Court give, etc.

[Smoothound]

I'm not confident if I do have to go to court in the end but not the issue here really car A buddy would be good should the time come though, currently Brighton but hopefully Worthing should it go that far!

 

I'm just trying to get an idea of what I should write to the court now the claimant have sent their letter in or even if I should! I'm told the CCA could be dodgy as is the NoA possibly but none of it is for sure! Then there is the possible UR etc. etc. Just don't want the court to agree with the claimant but I also don't want to look a pratt writing the wrong thing

[car2403]

I think it's too late to reply by post. Fax maybe, but the Court won't see it before the hearing. I'd prepare a statement so you can provide it when you arrive and the Judge will probably look at it before calling you in.

[Smoothound]

It's a non appearance hearing so I won't be there!

[car2403]

Not aware of those. Does the Notice of Hearing say that?

[Smoothound]

It's on the n244 form when you apply whether you want a hearing or not as far as I'm aware. Cheaper if you don''t I think. ie. it's without a hearing unless I've got it badly wrong! I've already asked it to be moved to my local court and this is being looked at in the original court so assume I am not expected!

Edited January 22, 2012 by Smoothound

[Smoothound]

Am I expected to be there? More confusion now Hopefully not as no way I can be Especially as in an earlier letter I asker for the case to be moved to my local court!!!

Edited January 23, 2012 by Smoothound

[car2403]

You can request a hearing, or not, but the Court will decide if one is needed - again, what does this Notice of Hearing order state? I'm surprised if they aren't expecting you to be there, so we must respond to the Court around the contents of that letter and tell them you won't appear in person. (Which should have been done 5 days in advance, really)

 

This should be easier, for you, though, as you can prepare your statement in advance, but it needs to be with the Court in time to be added to the file before the hearing takes place to be considered.

[Smoothound]

You can request a hearing, or not, but the Court will decide if one is needed - again, what does this Notice of Hearing order state? I'm surprised if they aren't expecting you to be there, so we must respond to the Court around the contents of that letter and tell them you won't appear in person. (Which should have been done 5 days in advance, really)

 

This should be easier, for you, though, as you can prepare your statement in advance, but it needs to be with the Court in time to be added to the file before the hearing takes place to be considered.

 

 

I ticked without a hearing and paid the smaller fee.

 

I also asked weeks ago for the case to be moved to my local court which I was informed would occur automatically but this application hearing is at Brighton

 

There is nothing on the court document that tells me I should be there so assumed that was why it was still at Brighton and not local

 

Obviously if I'm to submit something in the meantime I need to get it posted today which is now going to be impossible as i'm at work now till 5-30pm so it will have to be faxed I guess I will be phoning the court at 9am to just check whether or not i'm expected and also to moan that they have not moved this to my local court as I requested!!

Edited January 23, 2012 by Smoothound

[Smoothound]

The hearing notice below

 

[Ganymede]

Am I expected to be there? More confusion now Hopefully not as no way I can be Especially as in an earlier letter I asker for the case to be moved to my local court!!!

 

 

Apologies for jumping in but do you have a Notice of Hearing? If so what does it say?

[Smoothound]

Apologies for jumping in but do you have a Notice of Hearing? If so what does it say?

 

Above

[Ganymede]

Sorry ignore that, the NoH wasn't showing up on my phone for some reason.

[Ganymede]

The Order isn't clear but doesn't state you should attend.

 

Just make sure in your letter you apologise to the Court for your non attendance and the no disrespect is intended etc etc.

[citizenB]

You could of course always telephone the court. Explain that you are confused.. that whilst you did actually tick - no hearing - and your presence hasnt actually been requested on the General order.. but could they please advise if you ARE supposed to be there.

[car2403]

Cases are automatically transferred when they are allocated to track - this one hasn't been allocated yet, but should have been transferred when you requested it. Something else to discuss with the Court. It looks like they need to vacate the hearing, transfer the claim and have it relisted at your local Court. If you're agreeable to the delay, that is.

[Smoothound]

I'm lost now really!

 

I'm going to phone the court in a moment just to find out whether I am expected or not.

 

I have received an application from Brachers/Varde today from the court regarding the PPI that was paid to me and they've adjusted the figure they are claiming down by the same amount. I'm not complaining but surely this is wrong?

 

Just spoke to the court and they sort of inferred it was close enough to me to not warrant transferring plus that I really needed to be there I wish the paperwork made this clear! She advised me that I could possibly email or fax to ask the Judge to transfer/vacate the hearing but it would be up to the judge

 

Obviously I still need to write a letter/fax of some kind to say why I still feel I'm not provided with the correct info I'm of a mind to go the CCA invalid and NoA not from the OC route but not sure how this should all be worded in court speak

[Smoothound]

Cases are automatically transferred when they are allocated to track - this one hasn't been allocated yet, but should have been transferred when you requested it. Something else to discuss with the Court. It looks like they need to vacate the hearing, transfer the claim and have it relisted at your local Court. If you're agreeable to the delay, that is.

 

Hi car2403,

 

I'm hoping to email the court later to get hearing vacated and moved to my local court. I'm not bothered about the delay really as I need more time to try and decide what to do via letter or when I go to the hearing. I'm starting to wish I'd just defended the case in the first place with regard to MBNA owing me more than I owe supposedly on this account. Seems I've spent £45 and got nowhere but more headaches

 

Could you advise on the wording for an email for this purpose or will the basics do? Obviously it will ultimately be up to the judge whether it's granted or not but I feel it's better for me as there is no way I can make the hearing on Wednesday.

 

Also I'm curious as to what the court will make of the PoC change of amount by Brachers? I'm starting to think I'm going to be rolled over even though they don't seem to know their back end from their elbow

[Smoothound]

Anyone?

 

Is a straight forward email ok or do I need to write a letter, sign and scan it and attach it to an email?

Edited January 23, 2012 by Smoothound