Arrow/Restons claimform - old MBNA debt

[AndyOrch]

So thats a £1000 less of the initial claim......how important is it to avoid a CCJ ?

 

You could provide a detailed I&E and they may still reject any settlement but then have all your details.

 

Would they accept the £6400 in monthly instalments by way of a Tomlin Order and no CCJ?

 

Andy

[bja100]

I have never signed it but I ticked a tick box that is classed as a signature so I did by law sign it.

 

As much as it would be great to go to court my chance shall of winning are about 20%z

 

I need to avoid a CCJ, I want to buy a house next year and this will ruin my chances for another 6 years. Also I need to not have this stuff over my head any longer.

[Bazooka Boo]

If your CRF is already trashed with defaults or AP markers, any chance of preferential mortgage rates you might want will be nigh on impossible to get.

[bja100]

If your CRF is already trashed with defaults or AP markers, any chance of preferential mortgage rates you might want will be nigh on impossible to get.

 

All of my debts and defaults will be 6 years old by August this year.

I don’t understand surely getting a CCJ is 20x worse than my current situation. Then I would also be liable for the full balance and not a partial settlement?

[Old Cogger]

partial settlement on CRA s would show partial settlement until 6 years then drop off, so even if you had a partial settlement what is the use when viewed the same as outstanding? no way around it , CCJ stays from when you get one for the 6 years anyway so if you got one in year 5 then you would have a further 6 years starting over again? no way out until cleared on CRA file???

 

that is the general way it runs it seems, unless of course a full and final settlement with an agreement to clear DCA entry which is very very rare done these days.

[bja100]

So you are recommending go with the CCJ then?

[dx100uk]

well no that will kill credit for 6yrs if you don't pay it off within one month [28 days]

 

as far as I read your situation all your debts have a defaulted date?

so each will vanish off the file then.

[bja100]

Yes all my debts defaulted around 5-6 years ago and so all with fall off by the end of 2018

[bja100]

Just writing a settlement offer. Any advice on what to include about 'financial and personal circumstances' to support the offer, that will get any sort of reaction?

[AndyOrch]

They have already rejected you proposal of settlement....I dont see a detailed explanation will make any difference...refer to my previous post.

[bja100]

Hi guys

I havent disclosed financial info... yet.

I have put an offer in writing to them,

waiting to hear outcome.

 

In terms of if I still do go to court:

1. Does anyone REALLY believe I can win this case? I have read through so many different cases on here and really feel I dont have a chance

 

2. Assuming I lose, what will happen next?

Will Restons come after an attachment to my earnings

(I am self employed and a company director?)?

 

3.Can I still negotiate a reasonable settlement within the 30 days before the CCJ kicks in or do I then have to pay the whole amount?

 

Cheers

Ben

[AndyOrch]

Should you lose ...and you stand a far better chance by attending so you must attend...they cant get an AOE on a self employed debtor.

 

Settlements dont work after judgment...they have no need to...they have judgment.

[dx100uk]

1 yes of course you could

 

2. Then they can't

 

3. All

[bja100]

My mistake I am not self employed anymore (I draw a minimal salary through PAYE).

 

Do you know if dividends are classed as a form of income in these cases in that case?

[AndyOrch]

An attachment of earnings order instructs your employer to stop money from your wages to pay back your debt. Your employer will send the payments directly to the court and the court will send the money to your creditor. Your employer will make an administrative charge of £1 for each deduction as well as whatever the court decides you should pay.

 

To work out how much you can afford to pay your creditor, the court works out the minimum amount of money you need to live on. This is called the protected earnings rate.

 

The amount you owe to your creditor can only be taken out of the money you earn above this amount. If you earn less money one week or month, the amount you pay your creditor will be less, as your income can't fall below what's been set by the court.

 

Your creditor won't be able to get an attachment of earnings order if:

 

the amount you owe is less than £50

your take-home pay is always below the protected earnings rate

[bja100]

How do they know what my take home is?

 

Do I have to prove it?

 

Lets say I reduce it significantly if they do apply for this, thats the amount I say my pay is right?

[AndyOrch]

You have to submit an N56 if served with an AoE order...which is then verified with your employer.

[bja100]

Are dividend payments taken into consideration in the verification? Because I only get a very minimal PAYE salary from my employer...

[AndyOrch]

Are dividend payments taken into consideration in the verification? Because I only get a very minimal PAYE salary from my employer...

 

I dont know....but if dividends your take-home pay is always below the protected earnings rate then the creditor won't be able to get an attachment of earnings order.

 

Anyway they have yet to get judgment so lets concentrate on winning for now.

[bja100]

so apart from the fact

they say the credit agreement was signed by me when there is no signature

the credit agreement is illegible

the tick box and IP address have been tampered with

the additional ts and cs are completely different to the main credit application form

 

what else do you think I should add to my witness statement?

[bja100]

Hi guys

 

I've made a very first attempt at forming some sort of witness staement, bear with me this is really new stuff for me! Also needs tidying up massively.

 

I XXXX, being the Defendant in this case will state as follows; I make this Witness Statement to oppose the claimant application for Strike Out/Summary Judgment in view of my defence submitted to the claim dated XXXXX pursuant to CPR 24.5 (1) a&b.

 

1. The claimants witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph. It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.

 

2. It is my understanding that the claimant is an Assignee, a buyer of defunct disputed or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed ...10p to 15p in the £1 and which the original creditors have already wrote off as a capital loss and claimed against taxable income. Then issues claims to circumvent and claim the full amount of debt to maximise profit.

 

3. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

4. The court should be aware that a CPR31.14 request was issued to the Claimant on 24 April 2017 and is included in exhibit 1. The Defendant received no response to this request from the Claimant and the first time the Claimant saw any of the items outlined in the Claim particulars was in the Claimant Witness Statement that was submitted months later.

 

5. The court should be aware that the Defendant has offered a fair Settlement on several occasions over the past month and has had no response from the Claimant. The Defendant believes the Claimant is not interested in settling this matter.

 

The Background

 

4. Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and MBNA. On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity by way of a section 78 request.

At the time of submitting my defence the claimant was in default of this request and unable to comply with this request and was therefore unable to proceed and enforce the claim or request any relief.

The claimant is put to strict proof to verify and confirm that the exhibit at paragraph 2 marked JEB1 are the true terms and conditions as issued at the time of inception and execution of the agreement.

 

5. Paragraph 2. Contained within the claimants particulars and witness statement is a suggested copy of the credit card agreement that the defence entered into. This document is illegible.

 

6. Paragraph 2. The claimant notes they include ‘A copy of the credit agreement signed by the Dedendant on 24 September 2008, together with the Terms and Conditions embodied in the agreement’. The defendant disputes the statement this credit agreement was signed by the Defendant as there is no signature on the agreement. ?

The defendant disputes the terms and conditions included with the agreement relate to the given credit card agreement because there is no evidence that these terms relate in any way to the given agreement.

The defendant notes the copy of the credit card agreement has been doctored with black pen in the tick box and IP address.

 

7 Paragraph 3. The claimants states the debt was assigned to its claimant on or around the 7 August 2012.

It confirms that a copy of the agreement is relied upon at exhibit JEB2. The claimant is put to strict proof to evidence further the Notice of Assignment is a true copy or possibly disclose the Deed of Assignment as to verify its authenticity.

 

 

5. Paragraph 3. Contained within the claimants particulars and witness statement the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA. It evidences this fact by way of a copy of the default notice which is not proof nor valid pursuant to section 87(1) of the CCA1974.It is therefore contended that the original creditor failed to serve a valid Default Notice pursuant to section 87(1). Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement.

 

The claimant is put to strict proof to further evidence and verify the service of the above.

 

It confirms that a copy of this notice is relied upon at exhibit JEB2. The Defendant has no record of receiving such a notice.

The claimant is put to strict proof to evidence further the Notice of Assignment is a true copy or possibly disclose the Deed of Assignment as to verify its authenticity.

 

Paragraph 4 - The Defendant includes a breakdown of all transactions in article JEB4. The Defendant disputes this article is a true transaction log, it is shown as an excel document and could have been created on any computer.

 

Paragraph 8(vi) The Claimant claims they wrote to the Defendant on a number of occasions including the Documentation related to the account included in the Witness Statement. The Defendant has never received such information prior to seeing the Witness Statement. The claimant is put to strict proof to further evidence and verify the service of the above.

 

In my respectful submission, the claimant should not succeed because:

1. The Defendant did not sign the credit agreement that the Claimant has provided evidence of

2. The provided credit agreement does not include the terms and conditions

2. The Defendant never received the included notice of assignment

3. The claim was not adequately particularised

4. The CPR request was not complied with

 

 

Application to strike out/Summary Judgment

 

10. Paragraph 11 should be denied. I believe I have every opportunity in defending this claim successfully and it should be allowed to proceed to trial. The claimant is put to strict proof to respond as to why it presumes my defence has no reasonable grounds for defending given that all its exhibits are questionable or invalid with the current legislation.

 

Paragraphs 14/15 the claimant refers to exhibit LW01 which they refer to as a true copy of the executed agreement. It is averred that the disclosure purport’s to no more than an application form a pre executed application form which is deficient of the prescribed terms.

 

 

Conclusion

 

13. Having regard to the above it is respectfully requested that the claimant’s application is denied and the application for strike out/summary judgment is dismissed. In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial.

[AndyOrch]

Have they made application to strike out your defence/Summary Judgment ?...the above is a WS I drafted directly in response to this kind of application.

 

 

Andy

[bja100]

Yes. I searched for similar statements and used the template but changed the paragraph references and added some bits

[AndyOrch]

[bja100]

When do I need to submit this WS and where do I send it to?