URGENT!!! - MBNA / Reston - Lost Hearing, 14 Days to file Defense, debt 2006 Oct

[deepindebt102]

Hi All,

 

This is my first post on this forum, I have been reading it for 1-2 days now and the info here is simply amazing!

 

I have various issues but the most pressing is a Court Case with MBNA and Preston Solicitors. I heard they are the nasty ones!

 

I was living in the UK till January but due to my health and being unemployed, I had to move back to my country of origin, in the middle of Europe (sorry for being secrecy, just do not want people to find me this way)

 

I have a CC debt of 25k from MBNA what I could not pay due to job loss and health issues.

I tried to negotiate with debt collectors, offered 30% but turned down and referred it to Prestons, they went to Court right away. I have defended the claim (filed online in December) and then they requested to transfer the case to my local Court close to London, (where I used to live).

I was already abroad that time and did not get the mail about the transfer and the hearing so could not attend.

On the hearing they have struck out my defence and now I have 2 weeks to file something otherwise I guess it is CCJ. Not sure really, never been to this situation before.

 

This is the letter I got from the Court

1, the said defence of 10/12/2011 is Struck Out pursuant to CPR 3.4 (2)(a).

2, Unless the Defendant files and serves a defence which is the opinion of the District Judge discloses reasonable grounds for defending the claim by 4pm by 30th March, the Claimant may thereafter enter judgement in default for the amount claimed, interest and fixed costs

3, The court has made this order of its own initiative. You are entitled to apply to have this order set aside, varied or stayed but must do within 7 days from the day on which this order is server upon you or such other perios as may be directed above.

 

The credit card was opened on 14th 09 2006! I was reading aroundand it seems it is good if the CC was opened prior 2007 but could not find why?

 

What you guys think, what options do I have to avoid CCJ?

 

If necessary, I could make a payment for final settleemnt in the region of 5-6k, not really much, do you think there is still scope to negotiate or offer this?

 

Thanks

John

[asokn]

The court decided that your original defence was of no merit and therefore struck it out. What did you say in that original defence?

 

Why do you think you don't owe the money? (You will need to raise new issues than those in your original defence).

 

Also, what is the date of that court order?

[Andyorch]

Hi Deep in Debt and welcome to Cag

 

Can you post up the defence that was struck out and any response from Pestons?

 

Regards

 

Andy

[deepindebt102]

Thanks Asokn and Andy for the reply.

 

The last court order date is: 3rd of March and I have till 30th Mach to reply.

My reasons for set aside would be:

1, I have not provided CCA although I have requested from Reston.

2, I have no deed of Assignment

3, I have not got the notifications re the hearing so I could not attend.

4, I am no longer residing in the UK so I want to have my case heard abroad? (if it is even possible)

 

I was filing the following defence in a nutshell, I was not prepared and did not ask for help from anyone so some of the points I guess are not even relevant and maybe childish. ahhh

 

1, I was divorcing in the last few years and the court established that it is a joint debt (but on sole name) . Ex did not contribute, I lost job, could not pay the interests.

2, I have not heard from Reston before, no contact made, calls, nothing

3, contacted MBNA many times but got no CCA and any other documents requested.

4, we are selling matrimonial home and will be able to make payments when it is done (but will have no funds for full payment, only about £5-7k)

5, I am servicing otherdebts in the region of £30k+

 

Thanks for any suggestions and help.

 

I am thinking aof sending a new CCA request but being abroad, can not include £1 payment, can it be made on cheque? or only postal order?

 

Thanks

Regards

John

[asokn]

With your first point 2, have you received a *notice* of assignment?

 

By the way, I assume there was no hearing as the court made the order on it's own initiative. That's why the order gives you a period of time in which to apply to set it aside.

[asokn]

The order is dated the 3rd of March? That's a Saturday!

[Andyorch]

Is the debt in your name only (on the agreement) Deep?

 

Andy

[asokn]

I imagine the OP would be jointly and severally liable even if he's not the sole borrower.

[deepindebt102]

Yes, it is Saturday and this is the date on the order, it is right in front of me.

very strange indeed, Courts usually closed on Saturdays.

 

I have not received a notice of assignment either, last mail from MBNA stated that they try to recover through litigation but did not mention Reston or anyone else.

[Andyorch]

Is the debt in your name only (on the agreement) Deep?

 

Andy

Andy

[deepindebt102]

I am the sole borrower on paper, so my ex is in the clear, yeah, I know, it was stupid move from me.

[Andyorch]

Do you intend to stay abroad?

 

Andy

[deepindebt102]

I am planning to go back to the UK in a year or so, if my health improves and I can start working again,

thats why I would like to close it somehow, sooner the better so the 6 years can start ticking and hopefully will be able to reise mortgage in 6 years to buy a house.

[Andyorch]

Ok, if its your intention to return before the 6 years then I personally would contest Jurisdiction.This claim should have been served on you at the address you reside now. Its a pity you submitted a defence instead of just contesting.Speak to the court and seek advice on Contesting jurisdiction.

 

Andy

[deepindebt102]

does it helpat all that I have disputed the whole amount on the defence and counterclaim form?

[Andyorch]

Well yes, but you defence was really struck out because of non attendance.The claim was not served effectively anyway ( costs too much for them to issue it abroad) so even if you had not submitted a defence /cc and they attained default judgment then set a side would have been quite straight forward.

Speak to the Local CC dealing with this matter and request if you need to make application to either withdraw your defence and contest jurisdiction or just contest jurisdiction and let the defence/ cc stay.Pestons dont do mediation or seek agreements they only want Charging Orders.

 

Regards

 

Andy

[deepindebt102]

Thank you very much Andy, I will give a call to the Court.

 

as for Charging Orders, Could you please help me if a charging order is regitered on a property, can a sale enforced? and what happens if there is no equity? or even negative equity? an enforced sale would just create even more debt.

 

also, what happens that if the charged property is never sold? not in 50 years or so?

 

Thanks again Andy, you help is very much appreciated.

 

Cheers

John

[Andyorch]

As the debt is yours solely then only a restriction CO can be placed on the land registry for your share of the property value.Orders for sale are as rare as chickens teeth.

 

Andy

[deepindebt102]

Hi Andy,

 

I have called the Court and the lady "could not tell me" whether I shall withdraw my defence and contest jurisdiction or just contest jurisdiction.

She only advised to write to the Court explaining the situation and provide evidence.

She gave me a number to the LSC website to get help as the Ground is CPR 3.4,

 

What do you reckon I shall do next?

Thanks heaps,

John

[Andyorch]

CPR 3.4 relates to striking out your defence /cc, read here :- Practice Direction 6B - Service out of the Jurisdiction then once digested ring them again and ask for the case manager dealing with your claim.

 

Andy

[Andyorch]

Of course the other alternative is to resubmit your defence drop the counter claim and draft it on contesting jurisdiction and in proper service pursuant to PD6B.

 

Andy

[asokn]

The court staff will not give you advice as they are not trained to do so. Your defence was not struck out due to non attendance but because it had no real merit.

 

Be aware that at the moment you do not have a defence on the court file, you are essentially in the same position as if you had not yet responded to the claim.

[Andyorch]

The court staff will not give you advice as they are not trained to do so. Your defence was not struck out due to non attendance but because it had no real merit.

 

Hence requesting to speak to the Case Manager, the OP has not posted the defence so how would you know it has no merit ? None attendance to hearings usually benefits the other party in attendance...fact.

 

Andy

Edited March 14, 2012 by Andyorch

[asokn]

Hence requesting to speak to the Case Manager, the OP has not posted the defence so how would you know it has no merit ? None attendance to hearings usually benefits the other party in attendance...fact.

 

Andy

 

The context of your post was that the OP should "ring [the court] again and ask to speak to the case manager". No one at the court office is qualified to give legal advice so it doesn't matter who the OP asks for.

 

The defence I was plainly referring to was the one that was struck out, there is no other defence in existence, and the order states it was struck out pursuant to CPR 3.4(2)(a) which applies when the defence discloses no reasonable grounds for defending the claim. That is how I know it had no merit and therefore the OP, as I said before your post, will need to raise other issues rather than those same points. The OP seems to be unsure whether the existing defence is still extant and I thought it helpful to make clear that there was no defence currently before the court. For that reason the OP must act quickly and in any event within the timetable set out by the court to prevent judgment being entered.

 

Finally, there was in all likelihood no hearing and therefore no failure by the OP to attend. The order states that it was made on the court's own initiative rather than on the application of either party. The OP will therefore not get very far by saying that he was not served with notice of a non-existent hearing. I imagine the defence was struck out in the course of ordinary box work.

[Andyorch]

Deep, just consider post# 20/21 I have not time for these pedantic exchanges.

 

Best of luck

 

Regards

 

Andy