Court summons restons mbna. Help please.

elennor

Thanks to everyone who has given advice and I feel really stupid to say this but I still don't really know what to do. I have spent hours and hours reading posts but am now just overloaded. What I need to know(I think!) is:
1)If I defend and send off a CPR request, what happens if they do have my original agreement-I would then not have a defence. Can I change it and if I do will it look bad?
2) If I agree the claim and can afford the repayment they set, will that mean they can't add on any more interest?
3) What can I use as a defence-can being on a dmp be used as a defence? I do not want to get into more trouble or costs for defending it wrongly. I can't see they have done anything wrong/illegal but as I have never dealt with anything legal in my life I haven't a clue.

I feel I am going to have to accept it purely because I am not knowlegable enough to defend it, which annoys me but I may have to accept it is all beyond me as I am just getting more confused the more I read.
If anyone can answer the above it will help me decide and I would appreciate it greatly.
Thanks

NorthernLas

Thread bump

[You need definite answers and I am sorry, I don't know. Suggest you phone CCCS and ask them, if they can't help ask them who you can speak to. I would also try this with NDL. Can you get a free half hour with a solicitor? or face to ace help with CAB]

elennor

Thanks NorthernLas for trying to help. I rang CCCS and they said it would be difficult to defend the case even if they didn't have the signed agreement as we have been paying them for so long that the court would consider we agree we owe the debt as we had not argued it. I can see their point and we feel we should pay our debts but also are fed up with Restons being so unreasonable, adding court and solicitors fees etc so part of me wants to fight it. I feel though that I am not prepared enough to feel confident in doing so and may make matters worse and end up with higher court costs.
CCCS said Restons are very aggressive and when they are given a debt immediately go for a summons as they want to get a charging order. He said when they have it they usually then accept reduced payments. I am hoping this means they will freeze interest until it is all paid. He said it was very unlikely a judge would allow them to force a sale if we were living in the house and especially if we have children which we do. They may not even get a charging order as we haven't missed a payment. We are therefore thinking we have no option but to admit to the debt and then get a redetermination to a local court if what the court set is too high.
I will still try to get advice-rang citizens advice but couldn't get through-and still will value any help anyone can give us.
Thanks all-I feel very weak when others here have fought their cases but I really don't feel I have enough knowledge to do it well.

NorthernLas

Hi Ellenor - I completely understand where you are coming from. You are not weak at all, you are dealing with a very difficult situation.

[Did you think of calling Restons and asking them to withdraw the action since you had agreed with them by telephone then they would not pursue as you sent a payment - if they are bullies I can understand if you haven't, I just thought it might be worth a go]

The thing is I don't think you would be arguing about the agreement, you are not arguing that you owe the money, you are saying that they did not follow procedure when they took you to court because they agreed one thing and then did another.

What you need is someone who you can take the letters you have received from MBNA/Restons and for them to say that they are procedurally correct (i.e. you got a default and termination letter and that you were given enough time by Restons to provide payment, the POC is adequate). Even though you spoke to them by telephone, did you discuss whether they would accept your payment or discuss with their client?

To ask if you can defend because the amount claimed is incorrect.
To ask if you can defend because you have no further money to give them since they would be given an advantage over other creditors.

Then you need to ask what the likelyhood is that you will be hit with costs if you defend.

**Then you need to ask if you file an acknowledgement on-line and subsequently decide not to defend or put a weak defence in, what will happen.

Finally, you want to ensure that if the CCJ goes through the court then the payment is what you can afford. As there have been cases where people have submitted their I/E and is has not been taken into account, you need advice as to you can make sure this happens.

Have a look at the National Debtline factsheet http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=20_replying_to_a_county_court_claim_form

The key point is it looks like you did receive a letter before action, and you did act and come to an agreement and they still went ahead :mad: If someone 'legal' can advise you that you can defend on this as well as the amount being wrong and you are in a dmp (so cannot pay them any more), then your decision may be easier since you do not rush to get more information.

Probably the most important is **, since filing for acknowledgement can be done on line and gives you extra time to sort a defence.
Assuming that CAB has no legal people immediately available, I would try National Debtline or find a free half hour to ask the acknowledgement question.

elennor

Thanks again NorthernLas
It does look like they have done their paperwork correctly but they did not agree anything when I phoned them. The letter said 'our client may be prepared to accept payments by instalments. If you wish to consider this option please complete the enclosed questionairre and send it by 16th aug. The attached form was an income and expenses form so I rang them on 3/7 and explained CCCS was sending this. He asked will it be sent before 16th aug and i said yes they are sending it today. He just said something like 'ok then' and abruptly said goodbye and was gone.
Next thing was we got the court papers issued 1st september. They did not give any warning and i stupidly assumed they were accepting the payments. As they did not agree to anything I don't think I have any case for a defence-sadly being rude, ignorant and unreasonable is not illegal.
The downside of all this is that CCCS says they need an up to date budget ( less than 6 months old) so we did a review and it seems we are better off as my husband stopped smoking and we got rid of a car and changed to a cheaper motorbike. This means we now have to find an extra £40 per month for our payment. This would be ok if food hadn't gone up so much recently.
Also, just found out dad-in-law has cancer so at the moment I have no fight left in me. I will just be honest to myself, it is my debt, I will pay it and just hope they don't do anything more to us. At least it looks like they won't be able to add any more interest after they have the CCJ.
I just hope Karma is real and that I get to see it work on this lot lol.
If anyone has any last minute thoughts please let me know and thanks for your help

elennor

PS I will ring NDL tomorrow to check I'm not missing anything.

saltnvinegar

Elennor

I have been reading this with my heart in my mouth and I really feel for you. I didn't want to read and not post anything so heres some things I would consider:

1) Restons have been acting with unreasonable haste in taking litigation. This does seem to be their tactic and I wonder if its because they know given the time you would find advice on forums such as this one to make your position more defendable.

2) I don't think there is anything wrong in your defence to state that you trying to deal with your debt with all your creditors in a reasonable manner by setting up a DMP and that you have made a fair prorata offers of your surplus income to all your creditors. You could also look at stating that Restons have been keen to seek litigation whereas you have been keen to seek mediation and hope the judge agrees and sets a payment in line with your DMP.

3) I'm not sure where you would stand on the unenforceability route. Were you planning on defending it on unenforceability alone or will you use this as part of your defence?

4) Please please please don't give up fighting. It sounds like life is giving you a bit of a kicking at the moment but you will get up, dust yourself down and carry on.

SnV

eyeopener2

Hi

Have you had the case moved to your local court so you can go in person. Then you could explain to the judge your position, tell the court exactly how the DCA have treated you. You cam still admit the debt but Restons will look stupid for bringing court action when you are already paying! it might work in your favour for costs and the amount of repayment.

Ring National Debtline and see how you get the case transfered.

Good Luck

e2

elennor

I phoned national debtline today who were helpful. They said I cannot get it moved to my local court until after it has gone through Northampton Court.
As there is equity in the house NDL say they will be after a charging order using the argument that it will take us 12 years to pay off our debts. They will apply for a forthwith order, we will get it sent to local court, they will say we have defaulted on forthwith order so will apply for CCJ and will probably bring up the charging order at the same time.
We can argue our case but if the CO goes ahead must make sure we have an agreement that they do not force a sale. At this point they will probably agree to our original payments but they will not be able to add on any more interest so we will back to square one but with a charging order. As we are not planning to sell they will not gain much and we will be a few hundred quid worse off (interest on already, court fees etc).
Still horrid but I do feel a bit calmer about it. NDL said our arguments can be that:
It's not fair to other creditors
It's unfair to change an unsecured debt to a secured debt
Unfair to put CO on house as it's in joint names and debt in OH name only
They did not give us a chance to sort things out with them
all pretty weak in a judges eyes but if he goes with the CO to ask that they cannot force an order to sell at any point.
Hope this info helps others a little and will keep you posted with how it pans out.
Thank you all for your help and advice. I really wish I was informed enough to fight this but can't see I have much of a leg to stand on.
Will therefore be honest and act morally even if Restons don't and at least I will have a clearer conscience than them.

Sparklyfairy

Hi there, I just wanted to say that I'm in the exact same boat with the exact same people! I am expecting them to go for a co - but just as you, it will be a restriction...read up as much as possible on restrictions bc it's not nearly as frightening as I originally thought.

Also, just wanted to add that when you have your co hearing, add that you want the judge to enforce that no other action can be taken (i.e. MBNA/Restons cannot use bailiffs should you fail to make your monthly payments).

It's all very frightening, but you're not alone.