MKDP notice of judgement recd - but no POC recd, help re set asideE !!

[pandora]

Hi there .. and Happy New Year to all :santa_wink:

My hubby had a 2005 credit card, which was defaulted in Jan 2008, NO dn recd.

NY eve he recd a notice of judgement from Northampton, from the claimant MKDP, for a sum of £2500.

We originally though it was a scam from a DCA as no POC docs recd, and we have no idea whom MKDP are.

Hubby called court whom confirmed it was a genuine judgement.

Hubby advised he had recd no court papers/POC and didn't even know whom MKDP were, and certainly didn't owe them any monies.

Court advised the debt is Nationwide (we've now worked out it was a credit card, whic was dipsute, details below), and that they will send him the forms to have it set aside (judgement date 23.12.13), advising that there will be no cost and it will tsfd to a local court.

So, we need to have ready and construct a N244 defence, and looking for any help, comment, guidance or just chat on this .....

This would be actually be SBd Jan 2014 ... which explains the urgency of the sudden claim.

It has been through several DCAs, the last one being WESTCOT with the last activity 2010 - whom offered a 50% discount.

The CCA that was recd was 1 page (size 4 font pretty much unreadable) microfiche copy, with no prescribed heading save just "CREDIT CARD Agreement", although above the signature box (at the bottom of the page) IS the CCA regulated heading ie in signing you are agreeing to ..., but this is at the v bottom of the page - my hubby signed this 27.2.2005.

The body of the agreement is in relation to "use of information" and "credit reference and fraud protection disclosure", with no personalisation, but I can't actually read the nuts and bols of what is underneath the heading, as is sooooo small, but appears to be std generic stuff.

The CCA has a tick box saying I have recd the T&Cs - but this is an electronic tick, completed by Nwide.

The right to cancel is a short statement "you have a short time to cancel, Exact details of how and when you can do this will be sent to you by post".

No prescribed terms at all or any reference .....

My dispute complaint to them was (and I'm paraphrasing the most salient points here) ...

1. The agreement did not meet the statutory requirements re the correct heading for a CCA74 regulated agreement - with the heading of the agreement they have provided and intend to rely upon, merely showing a heading of "credit card Agreement, with no ref to CCA74.

2. The provided agreement contained absolutely no prescribed terms, or reference to where they may be found (which would need to be within the 4 corners of the agreement in any event), ie between first and last signature page. Therefore breaching S60(1) of CCA74.

3. No details of credit limit etc

3 No DN recd

Nationwide refused/omitted to respond, and merely passed onto DCAs, as I say the last one being Westcot in 2010.

Hubby has recd no assignment notice re MKDP, and we only know this is NWide because the court verbally told us on 30.12.13.

This is my original letter detailing the issues, could this be used as the body of the defence, and what else would anyone pop in (should I also raise the missing DN issue ?).

Many thanks all ...

P xx

[CleverClogs]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

My hubby had a 2005 credit card, which was defaulted in Sep 2008, NO dn recd.

One could argue that, if no default notice had been served, then section 87 (link) of the Consumer Credit Act 1974 should apply and the OC would be entitled to bugger all until/unless the DN was served.

It has been through several DCAs, the last one being WESTCOT with the last activity 2010 - whom offered a 50% discount.

One might be inclined to suppose that even those turds - who'll happily chase SB debts - know there's something wrong with the alleged debt.
Why else would they offer a 50% discount? They're not exactly noted for their philanthropy.

The CCA that was recd was 1 page (size 4 font pretty much unreadable) microfiche copy,

If the crap supplied is illegible, it plainly cannot comply with Regulation 6(2) - link - of the Consumer Credit (Agreements) Regulations 1983, which requires that the information must be easily legible.

Consequently, they did not comply with s.78(1) of the Consumer Credit Act 1974 and, until/unless they did comply, s.78(6)(a) - link - should prevent them obtaining judgement in their favour

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Thanks buddy ..... I've completed the N244 .. and also supplementary evidence .. could you take a scout over, and if you think I should include the DN info, a guide as to how to phrase it etc.

Also, anyone else who is experienced on N244s and defence on no prescribed heading or terms, would be greatly apprecaited.

The account was in defaulted Jan 2008, CCA requested prior to this but no reply, referred to first dca in Oct 2008 (fredricksons), cca eventually recd Aug 2009 from Bryan Carter, after further request to Freds. Advised them re the basis of dispute, heard nothing, until 2010 when wescott appeared - again sent dispute letter, again they disappeared .. until this blinkin judgement by defualt from MDKP (whom we've never head or, and had no idea NWide had sold the debt to) popped up !

Anyhoo, any and all comment v welcome

P x

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

I've just had a lightbulb moment ... I think this could actually be statued barred !!!

I have found Nwide letters from 28 Jan 2008 saying he was 2 mths in arrears and they were going to defualt him if he didn't contact them (and as his collection date was 16th of the month - I read this as payments for December 2007 and January 2008 being missed as at the 28 Jan 2008 letter) .. it then went into dispute re the CCA and off to DCAs etc. The default is noted as Jan 2008 - expiring Jan 2014 .. hence the rush from these geezers !!

I dont' know when the claim was submitted though, as we didn't rec the claim on the judgement dated 23.12.13 - if the claim was submitted post 16 Nov 2013 can I also argue SBd ?

If so, would I throw in the SBd defence as well as what I've already noted, or should I only go Sbd and see what happens ?

Help ... !!!??? !!!!!

P xx

[CleverClogs]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Can I throw in a SBd defence as well as what I've already noted, or should I only go Sbd and see what happens ?

It is unlikely to be SB, as the claim would have been started within the limitation period.

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Im going to get hubby to ring to see the date of claim, and if post 16 Nov, this will be sb'd surely, as this was the last date any payment was made.

Although, we have a robust defence I think anyway .... could you take a look at the attachments I've posted and give your thoughts ?

P x

[CleverClogs]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Im going to get hubby to ring to see the date of claim, and if post 16 Nov, this will be sb'd surely, as this was the last date any payment was made.

No, as the limitation period starts with the cause of action which, at the very earliest, would have been the first missed payment and would probably be after the second missed payment.

Although, we have a robust defence I think anyway .... could you take a look at the attachments I've posted and give your thoughts ?

I have - apart from various typos, they look OK to me but, then, I'm hardly an expert in such matters and you really do need help from someone more able than me.

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Ok, sorry yes spotted a couple of typos, which I've amended in the master copy.

Ok, you think it won't be SBd (2nd missed payment was Jan 2008 and default registered Jan 2008) - what about the non -receipt of the DN ? Or do I have enough with what I have ?

P x

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

I've tinkered with the supplementary defence, and included a part on non receipt of a DN ... comments please ?

P x

[pt2537]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

I've tinkered with the supplementary defence, and included a part on non receipt of a DN ... comments please ?

P x

have you as yet been provided with a copy of the Claim form?

If not, then i do wonder exactly how you are able to plead a defence to a claim you do not know?

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Hi PT,

Well I presumed the claim is for default and settlement of the credit card debt, as thats what prev CRAs were after, and Im guessing is why the judgement is for the full amount thats os on his record with CRAs.

Im just trying to get the body of the N244 ready for when the court bits actually arrive, as I know time is of the essence to get this into the court asap.

Will Northampton send a copy of the POC with the N244?

I have to admit that its very strange and entirely annoying that no POC arrived for this, and only the default judgement.

I've only had 1 other experience of a court claim for myself, and that was for a partial claim from Sigma under an old M&S store card converted to credit card - which is why I know a tiny bit about AOS and submitting a defence etc - at the moment that claim is stayed, and I do (hopefully) intend to have it struck out eventually !

I hoped that hubbys defence that I've put together re title/pres terms etc (which is really just cut and pasted from his historical responses to Nwide and DCAs) supports his statement that his plea of non-receipt is true. As I would hope that the defence he has, together with supporting evidence that he always directly responded to any communication from either Nwide or the various DCAs, would support the fact that he has always dealt with any issues promptly, and that there would really have been no gain to him ignoring the claim, yet everything to loose by default judgement - which I hope will allow the judge to consider the defence evidence presented.

As soon as the papers arrive (hopefully today) I will post up.

Thanks for your help x
P x

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Ok .. hurrah ... court forms have arrived today by 1st class mail.

They have included a copy of the POC which are as follows ....

"The Claimant claims the sum of £2,812.00 being monies due from the Defendant to the Claimant under a regulated agreement originally between the Defendant and Nationwide.

The Defendant's account number was xxxxxxxx and was assigned to the Claimant on 10/10/2011, notice of this has been provided to the Defandant. The Defendant has failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to the Consumer Credit Act 1974.

The Claimant claims the sum of £2,812.00 and costs.

The Claimant has complied , as far as is necessary, with the pre-action practice direction"

The case details and audit trail show ...
The date of issue as 28 Nov 2013
The date of service 3 Dec 2013
The date of judgement 23 Dec 2013
Date order posted 24 Dec 2013.

So, based on what we now know the POCs to actually be, how does the N244 defence I have compiled measure up ?

I would also add that in respect of the prescribed heading, the only place within the agreement that the CCA74 is mentioned, is within the signature box (above where the debtor signs), which is right at the bottom of the page (ie after all the "use of key information" and "Credit reference and fraud protection clauses " text ... and simply states " this is an agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by the terms" ... which I don't think satisfies the prescribed format and heading requirement as clearly laid down in the Act - but v happy to be corrected if thats known not to be the case.

The whole agreement is also pretty illegible and must be in size 2 or 3 font (I'll try and scan up later).

All comments, suggested amendments, changes, etc, etc very gratefully received, as this is my first encounter of the set aside procedure and I could do with all the help I can get.


Many thanks guys

P xx

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Any comments anyone ???

P x

[mystery1]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

I'm not that great at set aside as i've never done it or researched it much. Do you need a defence yet ? Surely the right to a fair trial and the fact you never got the claim form is enough ? Has the claim form got the correct address on it ? Why didn't you get it ?

M1

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Hi,

No idea why it wasn't recd, we recd the default judgement on 30 Dec and N244 & copy POC today no probs - its so frustrating !!

Im not sure either, but thought I needed to include his defence, so that the judge accepts that if hubby had recd the POC when he should have done, he would have defended with some decent points, and thereby permit the set aside - but in reality I haven't a clue !

Thanks for looking in, keep adding points for anything you see that I've got wrong or mis-understood.

P xxx