MBNA/link - Judgement awarded against me - can't pay!

[joan_of_arc]

Oh god...I can't find the template to write a letter to the court asking for the case to be transferred to my local court, also requesting standard disclosure from the claimant to explain how they came to their exhorbitant charges, does anyone have a link to it please I'd be really grateful...

[AndyOrch]

PART 30 - TRANSFER - Ministry of Justice

 

 

CPR 18 to request information or SAR

 

Regards

 

Andy

[joan_of_arc]

Thanks andyorch, looking at it now...

[joan_of_arc]

No, that's not what I need. I need a template letter so that it's worded in the right language, to ask for the case to be transferred from their court to mine. Will keep looking through the templates on here but there's so much information it's hard to find my way around here.

[joan_of_arc]

What does CPR 18 mean?

[AndyOrch]

No, that's not what I need. I need a template letter so that it's worded in the right language, to ask for the case to be transferred from their court to mine. Will keep looking through the templates on here but there's so much information it's hard to find my way around here.

 

There isn't a Template as this does not happen that frequently,All cases are transfered automatically on the completion of the AQ ( Allocation Questionnaire) You will need to speak to the Court dealing with the case but i surmise you will have to make application (N244)

 

CPR 18 (Civil Procedures Act) a request made once litigation has commenced for all information pertaining to a claim

You will find plenty of examples on here just do a search

 

 

Andy

[joan_of_arc]

There isn't a Template as this does not happen that frequently,All cases are transfered automatically on the completion of the AQ ( Allocation Questionnaire)

 

I don't understand Is that the form I filled out online, the acknowledgement of service one? My case hasn't been automatically transferred :S

 

You will need to speak to the Court dealing with the case but i surmise you will have to make application (N244)

 

Do I need to do that as well as asking for the case to be transferred? I am feeling really confused now Maybe I'll wait till my husband gets home to come on here and speak to you all because I'm losing the will to live.

 

Re phoning the court, I phoned the court this morning, they suggested I get the case transferred to my local court. OK if a template letter doesn't exist on here I'll just write it in plain English.

 

I appreciate your help andyorch but 10 minutes ago I thought I knew what I was doing and now I'm back to square one, completely and utterly lost and confused I loathe all this sh*t.

 

 

EDIT...Is the N244 the form I use to get the case transferred? The Charging Order hearing is in 18 days time, but it is over 30 days since I sumbitted my acknowledgement of service. Can I still submit the N244?

Edited September 20, 2010 by joan_of_arc

[AndyOrch]

I don't understand Is that the form I filled out online, the acknowledgment of service one? No the AoS is to a accept service and inform them of your plea You did defend all i presume? My case hasn't been automatically transferred :S Because you didnt defend or you didnt submit a Defence?

 

 

 

Do I need to do that as well as asking for the case to be transferred? I am feeling really confused now Maybe I'll wait till my husband gets home to come on here and speak to you all because I'm losing the will to live.Thats why i posted the link thats the official procedure for requesting a transfer of cases to County Courts and i surmise it will be way of an application.What did the Court say when you requested transfer did they tell you what to do?

Re phoning the court, I phoned the court this morning, they suggested I get the case transferred to my local court. OK if a template letter doesn't exist on here I'll just write it in plain English. See above

 

I appreciate your help andyorch but 10 minutes ago I thought I knew what I was doing and now I'm back to square one, completely and utterly lost and confused I loathe all this sh*t.

 

Procedure when you get a summons:-

You have 33 days (5 deemed served leaves 28) 14 to AoS and submit your plea

A further 14 to submit your defence.The Court will write to confirm your defence received and forwarded to the Claimant.They then have 28 days to respond and proceed.If they dont it will be stayed.If they do you will receive an AQ to complete and the claim is then transfered to your local County Court.

Really thought you were up to speed on the procedure Joan considering all we went through last year.

Andy

 

 

[joan_of_arc]

Really thought you were up to speed on the procedure Joan considering all we went through last year.

 

I'm not, and never was. I find this very confusing and always did. I will attempt to answer your earlier questions as there is no chance I'll get any work done now, I'm far too upset.

[joan_of_arc]

OK here are answers to your earlier queries. If you think I'm completely stupid regarding all this, you are bang on the money as usual. I hold my hands up, I am completely stupid regarding all this. I look at a court letter and all the writing turns to squiggles and jumbles up in my brain. Maybe it's a form of legal dyslexia; that's what I had to have my husband help me so much last year. I think it's the stress that does it, and I bet I'm not the only one, but I expect very few people are prepared to admit it, being in the company of so many experts on here. Answers...

 

Hi Joan

 

From reading your posts since your initial post I think it would benefit you and other Caggers the sequence of events in this matter, good writing practice ha ha!!!.

lets start with a little history re the initial debt and reasons for the dispute, who was the OC before assigned?

 

MBNA

 

date assigned and was you informed was the amount transfered to Plink correct?

 

According to the SAR I submitted to MBNA, they sold the debt at around £4,700 back in 2005. In May 2010 Link sent me a letter before action claiming the outstanding debt was slightly less than the amount MBNA sold for (a difference of £30, so possibly a typo on their part.)

 

 

Ok litigation, date of the summons pre action protocol from Plink?

Default Notice /Termination Notice did you receive have you a copy?

 

Default notice received June 20120, stating that £102 costs had been incurred. No mention in that letter of the total amount owed.

 

On the same day a claim form was issued by the court for more than £2000 in excess of the amount stated in the May letter.The claimaint is claiming the whole of the outstanding balance. In Particulars of Claim Link claims:-

 

1. # (just over the amount MBNA sold for)

2. Interest pursuant to Section 29 County Court Act (1984) at a rate of 8.000% per annum from (the date in 2005) to (the date in June 2010) of # (over 2 grand more than MBNA sold for)

 

 

Your response, AoS, Plea, did you print off your receipt?

 

I did nothing, as I didn't know what to do and after last year's fiasco was resigned to just being taken to court and losing. I was still trying to find the original SAR report from MBNA to see whether Link's figures were correct.

 

In July 2010 judgement was made against me as I had not replied to the claim form and it was ordered that I pay the full amount asked for by Link.

 

In August 2010 after coming on here, I submitted an N245 making Link a monthly offer. The N245 was returned at the end of August as I had not included details of my husband's income and expenditure. I filled it out and returned it immediately (ie over a week ago) and am still awaiting a response.

 

In the meantime I received notificatino of a hearing for the CO for a charge on the property to be made final, at their court in Cardiff, in just over 2 weeks' time. This is what I am thinking of getting transferred to my court although as the charge on the property effectively means nothing according to the information linked to elsewhere on this thread, I'm now not too worried about that.

 

I filled in an acknowledgement of service online and did no more as I mistakenly was waiting for the court to contact me back. I have done nothing since, except objecting to the charge on the property.

 

Defence did you submit one? ( i am surmising not with the out come) why not?

 

I had no idea what to do. I was upset and confused after the fiasco last year.

 

Requests from OC/Claimant SAR CCA CPR?

 

Got the SAR from the OC (original claimant). As Link have included where this extra 2 grand has come from in their particulars of claim, I presume I actually don't have to SAR them. But it is this figure that I feel is unlawful. Am I wrong about this?

 

 

By the way the figure of over £10,000 stated earlier in the thread was wrong, I was looking at the wrong forms. I told you I'm hopeless at this...

[AndyOrch]

Thank you Joan thats excellent and succinct.Sorry for all the Qs and absolutely no intention to upset you.But when you try to give advise we need all the facts otherwise the advise offered will be wrong and will only lead to further upset.

 

Ok firstly can we set a side the CCJ and redefend? Unlikely but would depend on did you actually AoS and if so what was your Plea? Anything less than Defend All then no.But if you didnt AoS at all then you may claim that no docs were ever received (they dont use any recorded delivery. If you can clarify as you state " I did nothing, as I didn't know what to do and after last year's fiasco was resigned to just being taken to court and losing"

 

Further on you state " I filled in an acknowledgment of service on line and did no more" This is important as its the difference between set a side and not being able to Joan

 

MBNA to Plink will be full of errors and unlawful charges Guaranteed !!!!! as will their NoA (notice of assignment and DN)

 

You state a DN was received last year from Plink (not MBNA) You cant send a DN to reflect costs so thats pants.

I very much doubt they will also have a copy of your CCA.

 

 

Andy

[joan_of_arc]

Hi Andy,

 

No, you didn't upset me, this case upsets me. I appreciate all your help.

 

Ok firstly can we set a side the CCJ and redefend? Unlikely but would depend on did you actually AoS and if so what was your Plea?

 

I acknowledged the terms of service and have just checked on moneyclaim.gov.uk what exactly I did. Apparently I clicked that I intend to defend all of this claim. Oh god

 

But if you didnt AoS at all then you may claim that no docs were ever received

 

I did AOS, online, but then I did nothing.

 

MBNA to Plink will be full of errors and unlawful charges Guaranteed !!!!! as will their NoA (notice of assignment and DN)

 

But in law, how can this help me? Is this worth my applying to get the case transferred to my court using the N244 (before this Friday, as the case is due to be heard 2 weeks on Friday) and then appearing in court to defend it on the grounds that their charges are unlawful? Bear in mind that I've already made an offer to the court (of £10 a month) so does that imply that I've accepted the amount they're demanding?

 

Also in the N244 which I've half filled in, is the answer to the question "Who should be served with this application?" Link Financial Ltd? I've got no idea to whom it should be served! And why do you call them Plink?

 

And in the N244 there's a box which says "What information will you be relying on to support your application?" - I don't know what on earth to put, I'm just asking for the case to be transferred to my local court! Do I say "I don't think they have a CCA and their charges are unlawful"?

 

Under "What order are you asking the court to make and why?" I've answered "Application by consent for adjournment of hearing and transfer of hearing to (local) County Court as I am awaiting response from Link to a SAR, for which they have 40 days to reply."

 

The SAR I originally sent to MBNA was returned by LINK with all transactions marked leading up to the date MBNA bought the debt.

 

You state a DN was received last year from Plink (not MBNA) You cant send a DN to reflect costs so thats pants.

I very much doubt they will also have a copy of your CCA.

 

They sent me the DN (list of charges? Have forgotton most abbreviations and DA isn't listed in the legal abbreviations dictionary, what does it stand for?) because I was (and am still) intending to claim money back from MBNA for over charging me on over limit charges when I had my MBNA card.

 

I very much doubt they will also have a copy of your CCA.

 

Do I ask them for one now? Is all this too late considering I've made an offer of monthly payment to the court?

 

EDIT: Just checked my filing cabinet. Link did send me a copy of the original CCA with MBNA. Definitely the one with my signature, no question.

 

I have to do something within 14 days of the court hearing, that is right, isn't it? So I have to SAR MBNA today and send off the N244 today, is that right?

 

Still utterly and hopelessly confused, this is like walking through fog blindfolded.

 

btw I thanked you in the acknowledgement sections of one of my novels a couple of years ago, don't know if I ever told you that. It has sold all over the world, not quite a bestseller yet though

Edited September 22, 2010 by joan_of_arc

[AndyOrch]

Hi Andy,

 

No, you didn't upset me, this case upsets me. I appreciate all your help.

 

 

 

I acknowledged the terms of service and have just checked on moneyclaim.gov.uk what exactly I did. Apparently I clicked that I intend to defend all of this claim. Oh god Excellent

 

 

I did AOS, online, but then I did nothing. Why did you not submit a defence?

 

 

But in law, how can this help me? Is this worth my applying to get the case transferred to my court using the N244 (before this Friday, as the case is due to be heard 2 weeks on Friday)Absolutely and then appearing in court to defend it on the grounds that their charges are unlawful? Yes and that you missed submitting your defence (Reason, we will have to think of one) Bear in mind that I've already made an offer to the court (of £10 a month) so does that imply that I've accepted the amount they're demanding? No you wasn't sure what you was doing and panicked and have since sort legal advice.

Also in the N244 which I've half filled in, is the answer to the question "Who should be served with this application?" Link Financial Ltd? Yes I've got no idea to whom it should be served! And why do you call them Plink? Plink and Plonk

And in the N244 there's a box which says "What information will you be relying on to support your application?" - I don't know what on earth to put, I'm just asking for the case to be transferred to my local court! Do I say "I don't think they have a CCA and their charges are unlawful"? No we now need to make application to Set a side also within the N244 leave blank for now

Under "What order are you asking the court to make and why?" I've answered "Application by consent for adjournment of hearing and transfer of hearing to (local) County Court as I am awaiting response from Link to a SAR, for which they have 40 days to reply." add and to set a side the CCJ as I never had chance to submit any defence.

The SAR I originally sent to MBNA was returned by LINK with all transactions marked leading up to the date MBNA bought the debt.Plink bought the debt ?

 

 

They sent me the DN (list of charges? Default Notice Have forgotten most abbreviations and DA isn't listed in the legal abbreviations dictionary, what does it stand for?) because I was (and am still) intending to claim money back from MBNA for over charging me on over limit charges when I had my MBNA card.

So the account was really in dispute (even though you did not inform MBNA before they sold it to Plink)

 

Do I ask them for one now? Is all this too late considering I've made an offer of monthly payment to the court?

EDIT: Just checked my filing cabinet. Link did send me a copy of the original CCA with MBNA. Definitely the one with my signature, no question.You need to post that up less any identifiable details

I have to do something within 14 days of the court hearing, that is right, isn't it? So I have to SAR MBNA today and send off the N244 today, is that right? Well yes when we have the details correct

 

Still utterly and hopelessly confused, this is like walking through fog blindfolded.

 

btw I thanked you in the acknowledgment sections of one of my novels a couple of years ago, don't know if I ever told you that. It has sold all over the world, not quite a bestseller yet though

You did Joan I was very honored if we get this one right you make even tell me the title?8)

Regards

Andy

 

[claymorejohn]

if it was me mate i would cut the red tape bull, send them at link what U can afford monthly, but DO KEEP ALL THE RECIEPTS together and if bailiffs etc. come knocking u can tell em where to go, good luck, i hate red tape

[AndyOrch]

if it was me mate i would cut the red tape bull, send them at link what U can afford monthly, but DO KEEP ALL THE RECIEPTS together and if bailiffs etc. come knocking u can tell em where to go, good luck, i hate red tape

 

And how is that going to set a side an undefended claim, unnecessary CCJ with extortionate interest added and and now looking to convert this into a secured debt vis a vis a Charging Order????

 

Prey tell Claymore

 

 

Andy

[joan_of_arc]

Hello Andy, I'm Joan's husband. I think the beating she took at the hands of Lloyds TSB last year took its toll, and she's blanked it all out of her head, so she's having to kind of pick it all up again from scratch. And this case isn't quite the same as that one, which seemed more straightforward.

 

Anyway, to give a resume on Joan's behalf:

 

 

• MBNA sold the credit card debt of £4771 to Link in March 2006.
  
• In March 2007, Link sent a letter stating the balance was £4756. This despite no payments having been made.
  
• In July 2007, Joan sent a CCA s78 request. Link replied with a delaying tactics letter "may take some time blah blah blah"
  
• In December 2007 Link provided MBNA statements, from Nov 2004 to July 2005 only, and a copy of the alleged CA, which is a copy of the tear-off slip from the bottom of an apllication form, bearing Joan's signature, and the T&C from the reverse side.
  
• Nothing else until August 08 when Joan sent an SAR request to Link, using a template from CAG.
  
• Within days of the SAR, Link relied with a threatening letter, and provided none of the requested documents.
  
• In September 08 they sent a Default Notice, giving the balance as £4741. DN was dated 25th Sept. Date by which breach to be remedied was 9th Oct 2008.
  
• June 2009 - Link send a letter suggesting they may seek a Final Charging Order, and adding: "Although we have not added interest to the outstanding balance, once placed with our legal department we will seek to impose our full legal rights" (presumably backdated interest payments?)
  
• July 2009 - Statement of Account showing balance as £4741, no interest shown.
  

 

• May 2010 - Letter Before Action received, giving balance as 4741 and stating: "You should be aware that contractual interest will continue to be charged on the outstanding balance until the debt has been fully repaid although we will not ask you to pay any more than the amount you would have paid if you had continued to pay your account as per the original terms of the Agreement. You may be liable for the costs of any action we take and statutory interest will accrue on your account at 8% for the full period. We will also impose a maximum fee of £130 which you will be liable for." (the stuff about interest made our heads spin trying to decipher what they are saying, and there's no indication of what the "fee" is for)
  
• June 2010 - letter telling Joan that a "litigation charge" of £102 has been added, and that this is now a "default sum".
  
• 10th June 2010 - County Court Claim received for the sum of £4843 plus interest, totalling £6696.67, plus court fees of £190. POC below:
  

POC: The Claimant claims the whole of the outstanding balance due and payable under an agreement and/or associated agreements made with the Defendant in writing and dates 07/05/2002 and assigned to the Claimant. The agreement and/or associated agreements are regulated by the Consumer Credit Act 1974. The Defendant has failed to make payment as required by the agreement and/or associated agreements and to comply with a default notice or notices served by the Claimant and/or assignor.

and the Claimant claims:

1. £4843.24

2. Interest pursuant to section 69 County Court Act (1984) at a rate of 8% per annum from 23/08/05 to 04/06/10 of £1853.43 and thereafter at a daily rate of #1.060 to date of judgment or sooner payment.

Dated 07/06/10

 

• Joan filed her AOS online on the last day before the 14 days was up, requesting the extra 14 days to submit a defence, and stating that she would be contesting the claim. Nothing more was heard until...
  
• 21st july - Judgement received, stating: "You have not replied to the claim form, it is therefore ordered that you must pay the claimant £6742.32 for debt (and interest to date of judgement) plus £190 for costs.
  
• Shortly after this, Link sent a letter telling Joan to contact them.
  
• A week later, they applied for an interim charging order.
  
• Joan submitted an N245 making an offer of monthly payment as we have no means to pay the full amount. This is still with the court.
  
• September - interim CO obtained by Link. Final CO hearing at Cardiff County Court to be heard on 8th October.
  
• To date there has been no response or acknowledgement of her N245 submission.
  

Joan failed to submit a defence in time, so judgement was awarded. She was unwilling to go through the humiliation of 'fighting' a barrister again and being torn to pieces by someone who knows the law inside out, in a court where judgements are made 'on balance of probability' and 'in all likelihood', rather than on absolute proof (as was the case last year). If I'd been more on the ball, I would probably have tried to support her case more and get her to at least put a defence in, but I've been so busy and had my own battles to fight too.

Although neither of us can understand the interest application, so late and so retrospectively applied, it is nevertheless there in the judgement. We assumed judgement was final. Is this not so?

 

The only thing yet to be decided by the court is the Final Charging Order. As we have been informed (by Land Registry) that we have no reasonable grounds for objection, we felt it wasn't worth atending the hearing and therefore not worth having it transferred to Sheffield.

 

I can post up the copy CCA if you like, but is there really anything we can do?

[AndyOrch]

Get back to you shortly JoA OH:-)

 

 

Andy

[AndyOrch]

Absolutely there is, you can set a side the judgment and redefend.If you make application via the N244 this will be considered along with the application N245 at the hearing of Oct 8th.But you will have to get it in sharp and confirm with the courts.

 

To answer your query re pre judgment interest, because tha Claimant included in their P.o.C 1. £4843.24

2. Interest pursuant to section 69 county court Act (1984) at a rate of 8% per annum from 23/08/05 to 04/06/10 of £1853.43 and thereafter at a daily rate of #1.060 to date of judgment or sooner payment.

Dated 07/06/10

This was allowed because Joan never submitted a Defence even though she did submit an AoS.Default Judgment was granted and the Claimant exercised their right to add it ie it was never refuted.

However it is the Courts discretion to allow the full amount or part subject to the terms of the agreement.

With the introduction of amendments to the CCA1974 CCA 2006 in Oct 08 All creditors must inform debtors of interest accruing on any breach at regular intervals.

 

Now lets look at CPR PT 12 Default Judgments

 

Interest

 

12.6

 

(1) A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment if –

(a) the particulars of claim include the details required by rule 16.4;

 

(b) where interest is claimed under section 35A of the Supreme Court Act 19812 or section 69 of the County Courts Act 19843, the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and

 

© the claimant’s request for judgment includes a calculation of the interest claimed for the period from the date up to which interest was stated to be calculated in the claim form to the date of the request for judgment.

 

 

(2) In any case where paragraph (1) does not apply, judgment will be for an amount of interest to be decided by the court.

(Rule 12.7 sets out the procedure for deciding the amount of interest)

 

 

With regards to the FCO as i have stated earlier in your thread.The first thing to do is to check to see whether the correct process has been followed. At this point we will assume that any potential challenge to the legality of the Judgment has been carried out (CCA request, Challenging default notices etc).Except Links DN I will come back to that It is worth checking to ensure that the judgment has been entered correctly, did the N30 form outline the determination process correctly? If it didn’t you could consider a set aside. It is worth checking the day the Interim order was applied for to see if the CCJ was actually in default on that day.(within the 28 days time frame) If an application to vary the terms of the CCJ has been sent to the court prior to the Interim Order request ensure that the court considers the variation before considering the Interim Order. The creditor must send a copy of the Interim Charging Order and Affidavit to all those with a legal and/or beneficial interest in the property, for example the mortgage lender. If this doesn’t occur the hearing will be adjourned.

 

 

So there is lots to argue, no you dont have to accept it but there will be a lot of work involved.I can only advise but you will have to fight it.

 

 

Regards

 

Andy

[middenmess]

Hi Andy

 

I was under the impression that interest under section 69 of the County Courts Act 1984 couldn't be added [let alone backdated by 5 years] to a regulated credit agreement--have I got it wrong?

[AndyOrch]

It was a default Judgment Midden and can be allowed if the Defendant does not submit a defence, albeit at the Courts discretion.

 

Regards

 

Andy

[middenmess]

Thanks for that Andy.

[AndyOrch]

Procedure for deciding an amount or value

 

12.7

 

(1) This rule applies where the claimant obtains a default judgment on the filing of a request under rule 12.4(1) and judgment is for –

(a) an amount of money to be decided by the court;

 

(b) the value of goods to be decided by the court; or

 

© an amount of interest to be decided by the court.

 

 

(2) Where the court enters judgment it will –

(a) give any directions it considers appropriate; and

 

(b) if it considers it appropriate, allocate the case.

[joan_of_arc]

Hi Andy 'Mr Joan' here again. I'm at work so can't consult the documentation. However, the N30 (Judgment for Claimant from the court) simply says what I quoted in my post above. It doesn't say how it was worked out (which is what you mean by 'determination, isn't it?).

 

Are you saying that the N30 default judgment is not final?

 

We do want the court to consider Joan's N245 form before the FCO hearing, but how do we ensure that happens?

 

As far as I know, Link have not sent a copy of the interim order to our mortgage provider (Capstone/London Mortgage Co.). Nor did Lloyds TSB for that matter, unless everyone's kept very quiet about it. Not sure how the mortgage company might react actually.

 

The problem is, that Joan won't go to fight it in court. Not after last time. So unless this can be fought without attending court, then there's no point.

[joan_of_arc]

Hi Andy, thanks for all that. I think the problem boils down to the fact that whatever I do, as I can't afford legal representation it will be me in court confused and not talking the lingo, vs a confident solicitor who is fluent in the lingo. I will end up stuttering and stammering and looking like an idiot whilst he runs rings round me and the costs will get added on to the already extortionate bill, just like last year with TSB. I can see a 4,700 debt escalating to 13 grand. In a way I'd rather just leave it as it is, and make Link a cash offer of a grand in a couple of years when I'll be in a position to pay some of the DCAs off. Link won't have bought that debt for a grand in the first place anyway. The other problem I have is that this is the last day to send off the N244, and your para beginning With regards to the FCO is complete gobbledegook and will take me hours to decipher and act on. I just don't think I've got it in me to fight this, it's affecting my work, this week's writing schedule is totally messed up, I just don't think I can do it. I'll see what Mr Joan says, he's reading this right now in his lunch hour at work

[joan_of_arc]

Ah, he's posted. Yes that sums it up really. I too thought that judgement had been made and that was that. The only thing being determined two weeks tomorrow is making the CO official.