Spinney100 vMBNA/Optima - Abridged Version

[Spinney100]

After burying my head in the sand for a very long time, the precursor to which was a year out of work and the break-up of my marriage, I received a wake-up call in the form of a POC from Northampton County Court.

Preceeding this I had had the following correspondence from Optima Legal on the 4th Feb 2010

 

 

And another letter on 1st July.

 

 

Seems like a long time between letters, but can’t find anything else. I’m not sure which of these is the termination notice, probably the second.

The POC came on 19 July, and was dated 16th July

 

 

On 29th July I moved house from X to new address Y. On 10th August I told Optima of the house move.

I completed the acknowledgement of service on day 13 of 14 from date of service indicating that I would be defending the whole claim. A week after this I phoned Optima and asked for an extension so that I could submit a defence and submit CPR31.14. They sent back the following email;

Dear Mr A,

 

As agreed by our telephone conversation today, we agree to an extension of 28 days to file a defence on the basis that you will be making requests for further information. The date for filing your defence is now 14 September 2010.

 

Yours Sincerely,

On 14th August I sent a letter covering CPR31.14 for disclosure of all documents (standard letter from this website). The letter expressly stated that if they were going to take longer than 7 days to deliver required docs then they had to tell me when I could expect them, and then allow me 14 days after delivery to submit defence.

I got a letter back dated 18th August, sent to address Y saying they needed 21 days to provide docs.

 

On 16th Sept a letter, dated 13 Sept, and other documents arrived at my old address X.

 

I didn’t actually get given the documents until 19th Sept ( I don’t communicate with the resident at address X .....ex-wife !!)

 

when I picked up my kids. In the package was;

 

Letter

 

continued on next thread due to restriction on attachments

 

CC Agreement

 

Default Notice

 

 

Three sets of terms and conditions and Statements of account (not attached as they are pages long !!)

The letter says I have till 27th Sept to submit defence, ie, 7 days after actual receipt. I spent a few days on CAG and going through the documents and realised I don’t have enough time.

I sent them an email on 24th Sept asking for more time, under CPR15.5, to submit my defence and they replied with another letter, attached to an email which was addressed to X.

 

The letter says that they didnt do anything wrong as they replied to address which is on the Acknowledge of Service.

I particularly love the statement that they don’t think I have a chance. Standard bullsh*t Im sure, but still ......not nice

Ive drafted a letter tonight asking the court for an extension, under CPR 15.5, which I maybe won’t get. Im posting it in the morning ,so it will arrive first thing Monday morning and will also fax it Monday as well, if I can.

If someone has the chance to comment on my new abbreviated history and read the attachments I would be most grateful.

[Spinney100]

I have a quick question about proof of posting.

In a case I am defending I never received a Default Notice before I received court papers. The claimant is quite adamant that one was sent. Do they have to provide proof of receipt, ie that I signed for it, or merely a statement saying they sent it ? Clearly the claimant could say I was lying about not receivng a document. Im curious as to whom a judge would side with, if thats the right phrase, as Im sure all judges are impartial !!

Thanks

[barracad]

Section 7 of the Interpretation Act 1978 legislates where an Act of Parliament requires a document to be delivered by post then service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document - unless the contrary is proved.

 

Whilst I doubt you can prove that this did not take place, you could submit evidence (i.e. a witness statement) to state that you never received the document.

[cerberusalert]

I've removed all the attachments.

[Spinney100]

A question which may have a quick answer, hopefully. I have a hearing on 15th April 2011 at court where the claimant will apply for summary judgement on the basis that I have no hope of successfully defending at the real court. I wish to actually defend the case, but I also wish to make an offer of payment, on the off chance they will accept a significantly reduced payment offer.

Is there a template that I can copy from somewhere ?

 

Many thanks

[rebel11]

Hi spinney

 

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=24_full_and_final_settlement_offers

[Spinney100]

I have a hearing on Fri 15th Apr at which the claimant (MBNA / Optima) is trying to get summary judgement prior to a full court hearing on the basis that I have no prospect of defending the claim. First of all do I have to attend the hearing ? What happens if I dont turn up ?

Also, Im going to send Optima a letter making them an offer of a lump sum payment tomorrow. If they accept (which Im sure they wont as the amount is about a third of the claimed amount) will they stop proceedings? Will I still get a CCJ against me ?

Thanks in advance

[cymruambyth]

It is always best to attend court as you can put forward your own arguments (sometimes the claimants are so confident of success that they don't turn up and lose!)

You will only get a CCJ if judgement is awarded against you.

[Spinney100]

Thanks for the response. My defence is weak to say the least so dont expect to win. I suppose what Im trying to ask is, whats the best way to avoid a CCJ at this stage. Im skint and out of work, but I could make a one off payment from money I can lend. If I get a CCJ I still only have the same amount of money.

[The Mould]

Thanks for the response. My defence is weak to say the least so dont expect to win. I suppose what Im trying to ask is, whats the best way to avoid a CCJ at this stage. Im skint and out of work, but I could make a one off payment from money I can lend. If I get a CCJ I still only have the same amount of money.

 

Why did you defend in the first place if your defence is a weak one? This will only increase your liability!

 

Did you file a response to the claimant's SJ application? You should attend the hearing. How much is the claim for and do you own property? If a CCJ is awarded against you and you fail (cannot) pay, the claimant will seek to enforce the Judgment Debt by way of charge on your home.

 

If the CCJ is awarded forthwith, you can either try and pay the full amount within 28 days or you can make an application for redetermination and offer to pay the debt at a rate that is within your means.

 

Before Friday you can still make an offer to pay and ask the claimant to discontinue if he agrees to your offer of repayment.

 

In my opinion, if you knew that your defence was weak or that you did not have a defence available strong enough to defeat the action, then you should not of filed a defence, who advised you on your defence?

 

Kind regards

 

The Mould

[Spinney100]

I filed a defence because what were my options ? Dont file a defence and get a CCJ anyway or file a defence and, worst case, add a bit more to a debt that I cant afford to pay anyway. It was worth filing a defence, I just got a little demoralised toward the end and failed to put in a good enough effort. I had every intention of putting up a big fight because MBNA have been utter swines. Ive been unemployed for ages, lost my home and my marriage broke up. I kind of lost the will to do anything much. Most of my other debtors have accepted token payments, but MBNA went for the throat.

No one in particular advised me. I did have a thread running on this site that drew very little attention.

I didnt respond to the SJ application. I owe 8k and I dont own a home. I dont claim benefits and am surviving on handouts, good will and occasional work.

I have already made an offer to pay £2500 lump sum (which would be borrowed) by letter. Optima on behalf of MBNA) refused and said they would accept £7000. I would obviously preferr to avoid the CCJ, but if I get one they still cant have any money off me on account I dont have any. I believe they are using the CCJ punitively, not to recover money, but then maybe thats the general idea of these things.

[Spinney100]

Quick question ; If I get a CCJ against me, how soon does it appear on a public register. I thought I had 28 days to pay the full amount before the judement showed?

[sleepingdog]

Hi spinney, you are right .If you get CCJ and pay full amount within 28 days then it will not be registered.

sleepingdog

[The Mould]

Good afternoon Spinney

 

What happened in court today at the SJ hearing?

 

Kind regards

 

The Mould