One for the brains of the board please?

climbingoutoftheabyss

Hoping to get some good advice on this please?

My wife and I have been on a DMP for two years with Payplan. During this time we've kept up all the payments and increased the amount we pay twice.

My wife had a credit card with MBNA (her name only), she was issued a default notice just before Christmas from them and today she has received county court forms from Northampton Court in the name of Restons Solicitors.

This is a bit disappointing, we've paid over £6500 back on our DMP and we are trying our best, my fear is that Reston's will ultimately try for a charging order on our house, we aren't planning to move but I fear they will try and force us to sell or worse.

My questions:

Can we still ask Reston's for the CCA? My wife has had this card for over 10 years, it was originally a co-op card and transferred to MBNA - I feel sure there is no signed agreement on file, but has our monthly payment meant we hav acknowldged the debt?

If we can ask for a CCA from Restons's how do we respond to the court form?

Could we approach Restons and offer a full and final settlement (we don't have the money, but if we could get it, would that be an option?)

If we go with the judgement and submit our normal Paypal income and expenditure, can we ask for a full and final settlement at a later date based on a lower figure?

I'm going to drop Payplan a note now explaining the situation, but I would appreciate any help that anyone might be able to offer.

RAS

OK

if 10past6 is around, s/he will give you more information, but a few starting points.

if you defend the case, as you must, you need to do so within 14 days, so there is little time. if you do this, the case will be moved to your local court and you need to attend.

This is much more likely to result in your being given a CCJ that is for very much the same payment as you are paying on the DMP. MBNA will then try to get a redetermination to get a forthwith judgement, which requires you to pay back the whole amount immediately.

The reason they do this is that whilst you pay the required monthly amount on the CCJ, they cannot get a charging order (mercantile v Ellis if you need it), so getting the forthwith judgement which you cannot pay allows them to apply for the charging order.

So you need to defend the case. Do not just allow Payplan to do the paperwork, as this has been shown to result in forthwith judgements and charging orders on many occasions.

The paperwork needs to go back within the time limit, then you can send the actaul defence later.

Certainly go for the CCA, as MBNA have proved not to have a lot of them.

Also can you put a scan of the default notice up as 10past6 can check it for irregularities.

climbingoutoftheabyss

Thanks RAS, I don't have a scanner so am not going to be able to put the default on here, what sort of thing am I looking for?

Its Restons Solicitors that are taking us to court, it looks like they have bought the debt from MBNA. If we defend the case, on what grounds are we doing so?

I suspect any attempt to get the CCA would work for us, Restons would have to go to MBNA who would probably have to go to CoOp, the chances of any of them producing it are, frankly, slim. I didn't want to go down that route as we acknowledge our errors and want to pay them, but Restons bought this debt on the 11th January and the court papers are dated the 28th - I feel they are not acting in good faith.

RAS

If you do not have a scanner, do you have a camera which you could use to post a piccie on www.flickr.com?

Or type out the content on here.

climbingoutoftheabyss

Lets try typing:

Dated 22 December 2008 (you can see the speed with which Restons have acted!)

Dear

Credit card agreement etc

We refer to the above agreement which you have entered into with us. Paragraph 8 of that agreement provides that you must repay immediately the amount of any arrears on the account. You are in breach of that clause because you have failed to make such payment and are seriously in arrears. A stop has been place don your card,

In order to remedy this breach we must receive a paymet of £229.51 by 13 January 2009.

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THIS BREACH.

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

On or after the date shown, your account will be closed and the credit agreement will be terminated. We may also take court proceedings to recover the whole amount owed by you to us. Further statements will not be issued. Please note that if we terminate your credit agreement: your full balance will be payable immediately and that you will still be personally liable to pay all amounts which become due to us, for example, any subscriptions and regular payments that you have not stopped or outstanding credit-card cheques.

IF YOU HAVE DIFFICULTY IN PAYING ANY SUN OWING UNDER THE ARRANGEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME.

IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU.

This notice should inclide a copy of the current Office or Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.

Yours sincerely.

10past6

RAS wrote: »

if 10past6 is around, s/he will give you more information

Any chance you can post it up for me please?

10past6

climbingoutoftheabyss wrote: »

can ask for a CCA from Restons's how do we respond to the court form?.

Yes, the court claim POC will be based on the T&Cs within your agreement.

climbingoutoftheabyss wrote: »

Could we approach Restons and offer a full and final settlement .

Yes, but wait to see if they produce a CCA

climbingoutoftheabyss wrote: »

If we go with the judgement and submit our normal Paypal income and expenditure, can we ask for a full and final settlement at a later date based on a lower figure?.

I would wait and see what evidence they produce

climbingoutoftheabyss wrote: »

I'm going to drop Payplan a note now explaining the situation

OK, but DO NOT ASK THEM TO ACT FOR YOU, THEY WILL MAKE AN ADMISSION RATHER THAN DEFENCE.

10past6

climbingoutoftheabyss wrote: »

what sort of thing am I looking for?

Default notices are issued in any all kinds of formula, creditors belive they are legit when in fact 90% of them are defective.

I never advertise on here what the correct formula should be in a default notice because those from the other side tend to monitor this board, and I refuse to educate them.

If you know anyone that has a scanner, I'll willingly take a look and advise.

climbingoutoftheabyss

I'm going to photograph the default now and submit it to flickr, I will post the link.

climbingoutoftheabyss

I've pm'd a link to the default notice 10past

10past6

You'll be pleased to hear that default notice is defective

Tell me, have they issued a termination letter?