CCJs and property restrictions

thehog

Hello everyone, I hope you can offer me some advice.

I have managed to make arrangements with all my creditors myself, all have been fine, including MBNA who took a token payment of £10 per month on my card debt. I always kept them in the picture re my finances and they were always kind and sympathic, acknowledging that a change in my circumstances had meant that I could no longer make the minimum payment. They even offered to write most of the debt off if I could come up with £4,300 before the default date of 31 March 2010. Of course I couldn't, and they advised that I should keep making my token payment of £10 per month until the debt is sold on.

The debt has now been sold on and I received a standard letter from Optima Legal, solicitors acting for MBNA. Of course it arrived on a Friday and there was nothing I could do until yesterday, being Monday, so I called first thing. I was told that MBNA would only accept a huge amount per month or else I would have a CCJ against me, plus a caution put on our property. I told them that MBNA were fully aware of my circumstances and that I couldn't make such a hefty payment. I was told that there was no negotiation (even though their standard letter said that MBNA would be willing to listen to any proposals) and that I should make the monthly payment of £10 to Optima Legal, starting at the end of the month, and to expect the paperwork detailing the legal proceedings in the post. By now I was in floods of tears and the guy just said goodbye and put the phone down. I haven't experienced anything quite like this before.

I composed myself and called back. I asked whether MBNA would accept a lesser amount to stop the legal action. They said no, £x is the minimum they will accept. I said how do you know that? Optima: Because that is what I have been told. Me: But your letter says MBNA will listen to any proposals. Optima: No, they will only accept £x minimum. Me: How do you know that unless you ask them? Optima: (sigh) ok, what do you propose? OK, so this put me on the spot so I blurted out the first figure that came into my head - a figure which is more than I can afford. Optima: OK, we will check with MBNA and call you back. Within the hour, Optima called back and said good news, MBNA have accepted the offer of £x. We will send confirmation in the post and if we don't get your first payment by the end of the month we will start legal proceedings.

My first question please - can Optima take legal action against me if I am making a token payment? I didn't think that they could. Optima were not interested in reviewing my financial statement.

If a CCJ petition goes in front of a judge, who looks at my income and expenditure account and says, don't be silly, she can't pay more than £x per month, will a CCJ still register against my name or will I just continue to make payments of £x per month against the debt and added legal costs?

My second question - is a CCJ taken out in conjunction with a restriction on the property or are they 2 separate forms of action?

My third question - should I write to Optima (I can't bring myself to phone them again) and explain, attaching an income and expenditure account, that I can't possibly pay £x but I can pay a smaller amount? What if they don't accept it? Can they just plough on?

Sorry for all the questions but I didn't know where else to turn, as I have made an appointment to speak to my local debt advisors but they are so busy they can't see me until the end of the month and I really need to deal with this sooner rather than later.

Thanks! :@)

Tixy

Hi and welcome

Yes optima (or any creditor) can still take you to court even if you pay a token payment.

If you ask to pay in installments and if the judge agrees you can only afford £X per month you would still get the CCJ but would only be ordered to pay the agreed amount. (it would appear on your credit file).

2 seperate actions. Usually a restriction/charging order can only be applied for if you do not keep up with repayments ordered via the CCJ. If the creditor try you should defend against it by saying you have kept up with the repayments (and various other defences such as prioritising this creditor/unfairly affecting anyone you live with etc).

Optima may take legal action but equally they will have been trying to frighten you into thinking that they will. I would respond in writing to show what you can afford.

How long ago did you take out the account? If its more than 3year ago you may also want to consider requesting the CCA and seeing if its an enforcable CCA. If it isn't that could be used to stop them taking you to court. Do you know about unenforceability? if the account is older than April 2007 then read here - https://forums.moneysavingexpert.com/discussion/2305463

If you do get court papers at any point come on here for advice in completing them (RAS & 10past6 amongst others are good in this situation).

DVardysShadow

thehog wrote: »

Hello everyone, I hope you can offer me some advice.

I have managed to make arrangements with all my creditors myself, all have been fine, including MBNA who took a token payment of £10 per month on my card debt of £11,316. ... .

The debt has now been sold on and I received a standard letter from Optima Legal, solicitors acting for MBNA. Of course it arrived on a Friday and there was nothing I could do until yesterday, being Monday, so I called first thing. ... By now I was in floods of tears and the guy just said goodbye and put the phone down. I haven't experienced anything quite like this before.

I composed myself and called back. I asked whether MBNA would accept a lesser amount to stop the legal action. They said no, £315.62 is the minimum they will accept. I said how do you know that? Optima: Because that is what I have been told. Me: But your letter says MBNA will listen to any proposals. Optima: No, they will only accept £315.62 minimum. Me: How do you know that unless you ask them? Optima: (sigh) ok, what do you propose? OK, so this put me on the spot so I blurted out the first figure that came into my head - £250. Optima: OK, we will check with MBNA and call you back. Within the hour, Optima called back and said good news, MBNA have accepted the £250. We will send confirmation in the post and if we don't get your first payment on 30 May 2010 we will start legal proceedings.

Of course, I can't afford £250 - the most I can offer is £95 per month without stretching myself.

Just shows. Don't talk to these people on the phone unless you are really confident you are in command of the situation.

RAS

Ok

You need to stop speaking to these people on the phone.

I suggest that you do a Statement of Affairs, as £95 might be reasonable, way more than you can really afford, or you might be allowing expenses that a court would ignore.

Do you own ytour own home, have a mortgage. Just you or jointly.

when was this card taken out?

Do you have the original creit agreement.

Do you have the default letter?

If either of these is faulty, it may be possible to stave off legal action.

thehog

Tixy wrote: »

Hi and welcome

Yes optima (or any creditor) can still take you to court even if you pay a token payment.

If you ask to pay in installments and if the judge agrees you can only afford £X per month you would still get the CCJ but would only be ordered to pay the agreed amount. (it would appear on your credit file).

2 seperate actions. Usually a restriction/charging order can only be applied for if you do not keep up with repayments ordered via the CCJ. If the creditor try you should defend against it by saying you have kept up with the repayments (and various other defences such as prioritising this creditor/unfairly affecting anyone you live with etc).

Optima may take legal action but equally they will have been trying to frighten you into thinking that they will. I would respond in writing to show what you can afford.

How long ago did you take out the account? If its more than 3year ago you may also want to consider requesting the CCA and seeing if its an enforcable CCA. If it isn't that could be used to stop them taking you to court. Do you know about unenforceability? if the account is older than April 2007 then read here -

If you do get court papers at any point come on here for advice in completing them (RAS & 10past6 amongst others are good in this situation).

Hello everyone,

Thanks for the response and the welcome.

Can anyone further explain please what is to be gained by Optima in obtaining a CCJ against me if I can pay what can be shown to be a reasonable amount? It seems to me Optima are in a win win situation, if I get a CCJ and lose my job over it then the sooner I lose my house and they get their money Plus the fact they will add the costs to my debt!!

Hopefully a charging order would be a last resort if I can pay the sum I can afford to pay, though it's really the CCJ I want to avoid.

I've had the account since at least 2002 /2003 but have moved house a couple of times so I don't think I could find the original paperwork. The account is older than 2007 but the transactions involved are from 2007 - 2008. Presumably I request the CCA from MBNA, but then when I phoned them to complain about Optima's "bedside manner" they said they had no details of my account on file anymore as it had all been passed to Optima.

I just can't understand why Optima are so agressive - perhaps because they are solicitors it is easy for them to take legal action against me (even though you can't get blood out of a stone) but I've had no such problems with other creditors and in most cases I am paying way below the amount they would normally request - they seem to acknowledge I am doing my best and accept the money on a monthly basis. Perhaps Optima are just using scare tactics. I will write to them as suggested. In the post today I received the agreement of the £250 they expect me to pay, which again, seems to be a standard letter, and says "provided this agreement is maintained our client will not take any further recovery action against you, but reserves the right to pursue any other relevant parties for any remaining loss." I am uncertain as to what the second part of that means as the debt is in my sole name - there's noone else to pursue!

The letter goes on to say that "if there is a genuine reason why you are unable to set up this standing order" - yes, there is, I can't afford it, and then insisting that you phone them. As one of the responses to my original post notes, don't phone these people!

Thanks everyone who has offered advice and sorry to rant on, but I really appreciate your help.

thehog

RAS wrote: »

Ok

You need to stop speaking to these people on the phone.

I suggest that you do a Statement of Affairs, as £95 might be reasonable, way more than you can really afford, or you might be allowing expenses that a court would ignore.

Do you own ytour own home, have a mortgage. Just you or jointly.

when was this card taken out?

Do you have the original creit agreement.

Do you have the default letter?

If either of these is faulty, it may be possible to stave off legal action.

I have prepared a statement of affairs and it's ready to send in the post, together with times and dates of my telephone calls with MBNA who, at the time, were looking to obtain a minimum monthly payment of £95, hence my offer. At that time, I couldn't afford £95 but 6 months' down the line a bit of top money saving advice has helped me out a bit - hence why I want to offer £95. If it was good enough then, it's good enough now!??

I have a standard default letter but not the original credit agreement.

thehog

Hi folks,

Sorry to push this up again but any further help that could be offered would be appreciated. I can see from other forum topics that Optima Legal have been giving grief since at least 2007! :eek:

thehog

Sorry, me again. I've been trying to think this through - do I need to deal with Optima myself or should I get CCCS to contact them on my behalf.

I had another thought - if I did not have a share in the equity of the property I live at would Optima still be able to obtain a charge as the debt is in my sole name?? Or would I be on dodgy ground here!

RAS

thehog wrote: »

I have a standard default letter but not the original credit agreement.

So if that letter is faulty, then you can halt court action.

Can you please scan it or photo it and post the link up here.

You need to remove personal details, bar codes and account numbers.

thehog

OK, I will do this, thanks!

thehog

I can't find the "manage attachments" button :@(