aktiv kapital/? Claimform - fast track - MBNA Credit card debt

[citizenB]

Hi bozalt, have been away for a few days..

 

I think andyorch has pretty much advised what I would The Tomlin order, does seem to be the way to go.

[bozalt]

Thank you, I will write on his behalf and see what they say!

[bozalt]

Hi Andy

 

Its been quite for a while but my friend has been attempting to negotiate a payment plan based on his income (He has been unemployed since 2011 after redundancy) which has been rejected. Aktiv Kapital are pushing for him to agree to a charging order to avoid court action, is this possible or even advisable? Would my friend be better off going to court, defending the claim and if agreed in Aktiv Kapitals favour having a court approved repayment plan?

 

He is not concerned about a CCJ but he does not want to agree to a charging order in relation to a disputed debt that has yet to be proved in court.

 

Any advise is again appreciated.

 

Many thanks

 

B

[AndyOrch]

It is possible to agree a voluntary charge ....advisable mmmmm...Id sooner have a CCJ

[Old Cogger]

A.K.tend to apply charging orders if they get a CCJ

[AndyOrch]

A.K.tend to apply charging orders if they get a CCJ

 

They do Mike so between a rock and a hard place Bozalt...if the debt is in his name only and the property in joint names then it would sit as a security only on his 50% share of the equity...if the CCJ is of no concern then I cant see anything to lose in fighting it all the way...costs may increase slightly.

 

Is there a chance they would a agree a VC on a much reduced figure?

[Old Cogger]

They do Mike so between a rock and a hard place Bozalt...if the debt is in his name only and the property in joint names then it would sit as a security only on his 50% share of the equity...if the CCJ is of no concern then I cant see anything to lose in fighting it all the way...costs may increase slightly.

 

Is there a chance they would a agree a VC on a much reduced figure?

 

always worth asking>?

[bozalt]

Thanks Andy & Mike for your help and advice.

 

My thoughts were that it was worth going to court before agreeing to convert an unsecured debt to a secured one. The property is in joint names and is the family home with 50% in my friends name.

 

Can they obtain a charging order without further court action once they have a CCJ? Do you think a Tomlin order could be considered prior to discussing a reduced VC and if agreeing a VC any idea of a fair % reduction?

[AndyOrch]

Thanks Andy & Mike for your help and advice.

 

My thoughts were that it was worth going to court before agreeing to convert an unsecured debt to a secured one. The property is in joint names and is the family home with 50% in my friends name.

 

Can they obtain a charging order without further court action once they have a CCJ? Yes but there would be one final hearing to make it final Do you think a Tomlin order could be considered prior to discussing a reduced VC and if agreeing a VC any idea of a fair % reduction?

 

Depends on the claimant .....strength of the claim...strength of the defence...just on another thread we have halved it from 8K to 4K.

[bozalt]

Would there have to be a CCJ granted to obtain a charging order or would it be a legal charge over the property similar to a secured loan? Could they enforce sale of a property once they have a charging order?

 

It it worth offering the following;

 

Tomlin Order for agreed amount.

 

or

 

VC for 50% of balance claimed

 

Sorry for all the questions but I am having trouble locating information that gives me confidence to draft a reply.

[AndyOrch]

A VC does not require a CCJ...it would be a restriction simply put there to secure the debt...I suppose it it like a secured debt.You could attach conditions to the settlement that no OFS be granted...not that it would for a restriction.

 

I personally would advocate Tomlin Order for full amount if they wont accept a reduced amount...no CCJ no Restriction.

[bozalt]

Awesome thanks Andy

[Alloyz1]

I have to say a Tomlin Order worked very well for me and you do not have the CCJ or uncertainty of court. And they get the certainty of payment or recourse should you default.

[Basil Fawlty]

Depends on the claimant .....strength of the claim...strength of the defence...just on another thread we have halved it from 8K to 4K.

 

Andy could you link to the thread please as this is something I may look at in the future with a possible future AK claim?

 

Tks

[shamrocker]

The DN refers to Clause 8 of the agreement. Is there a Clause 8 on any documents received? (I couldn't see one) If not, can you use this to highlight non-compliance with CCA request....but does this matter anyway if you requested the documents under CPR rather than s77/78 request?

[bozalt]

Hi Shamrocker

 

I will check out the T&C's provided, there hasnt been much documentation provided if missing it would appear to be something that could form part of the defence if this does get to court. No reply yet to the offer made of a Tomlin Order to resolve the issue.

 

Is it worth submitting a subject access request at this late stage? The CCA request was ignored.

[shamrocker]

Sorry Bozalt, I didn't see that you'd replied to me above...but see you watching my own thread which reminded me to check back here. I'm about to post up the opposition skeleton which I lost out to this week. It will give you a lot to think about and I'll happily chip in with any advice where I can going forward.

[bozalt]

Thanks Sham appreciated, sorry to read you did not get the result you wanted.

[shamrocker]

Thanks bozalt. Life goes on! If you read that skeleton you will see that they were making a claim that s.78 CCA request didn't apply as the agreement had ended. My argument was that they were pursuing a claim based on an agreement so they couldn't pick and choose which bits of the legislation applied and which didn't. Their counter-argument to that was that they had complied anyway, to which I questioned obvious lack of terms....then they can skip back to 's.78 doesn't apply'.

 

Personally, I see your case heading in the same direction as mine. They won't comply with CCA request but will supply an illegible agreement at disclosure....followed by a recon. Turning up in court and making the point that the agreement is not enforceable due to s.78 non-compliance, legibility, absence of prescribed terms, etc..won't work. You need to present any breaches in advance via your witness statements and then ensure you are able to validate the points in front of the judge. The problem I had is that I didn't do this, nor did I really understand the process fully, so ended up a tied in knots in the court. If only I knew then what I know now....

 

Obviously, if you're defence and witness statements are much stronger than mine, the opposition will alter their own approach so don't focus too rigidly upon that skeleton I posted up.

[bozalt]

Thanks Sham, that makes sense and is very useful information. Unfortunately us non legal types are going to struggle with people who are well versed in twisting points of law to their advantage.

 

I am trying to assist a friend with his account and I suspect you are correct as to the outcome, I am hoping he can reach a compromise without having to appear in court, as I am sure he will struggle to dispute the case.

[bozalt]

A case management hearing date has been set, should a bundle be prepared listing all aspects of the defence? Some guidance with this would be great.

 

Thanks

[AndyOrch]

Case Management hearings are usually with regards to allocation Bozalt...does the order specify anything in particular?

[bozalt]

It doesnt specify anything Andy, it confirms the date and location with an order that no further stays are granted. I take it the defendant must attend?

[AndyOrch]

Absolutely...perhaps draft a skeleton just to cover the main points at this stage...the claim will not be dispensed with just yet at this hearing.

[bozalt]

Great thanks Andy, I will post a draft up once completed.

 

A Tomlin order was offered and rejected.