Marlin Captial/Mortimer Clarke Solicitors VS Jumble1

[Jumble1]

Received a claim? Yes
Issue Date: 10 March 2015
Amount approx: £8000
Claimant: Marlin Capital
Solicitor: Mortimer Clarke Solicitors Ltd
Original Creditor: Egg Banking PLC
Particulars of Claim: Please type out in full excluding names/account numbers
By an agreement between Egg Banking plc (EGG) & the defendant on or around 07/03/2003 (‘the agreement’) EGG agreed to issue the Defendant with a credit card upon the terms & conditions set out therein. In breach of the Agreement the Defendant failed to make the minimum payments due & the Agreement was terminated. The Agreement was assigned to the Claimant. THE CLAIMANT THEREFORE CLAIMS £8000
Is the debt Statute Barred? No
List any letters you have sent: Marlin Capital CCA Request
Mortimer Clarke Solicitors CPR Request
(Sent using the template letters from this site - thankyou!)
Any Other Info:

Defence Submitted to the above claim on 06/05/2015 following an agreed 28 day extension to the claim to allow the Claimant time to respond to the CPR request.

1. The Defendant received the claim from the Northampton County Court dated 10/03/2015. This claim appears to be for a Credit Card agreement with Egg Banking PLC regulated under the Consumer Credit Act 1974.
2. The Claimant's statement of case states that the account was assigned from Egg Banking PLC to Marlin Capital Europe Ltd. The Defendant does not recall receiving notice of this assignment.
3. It is denied that Egg Banking PLC served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
4. On the 13/03/2015 the Defendant sent a request for inspection of documents mentioned in the Claimant's statement of case under Civil Procedure Rule 31.14 to Mortimer Clarke Solicitors who are the claimant’s solicitor. The Defendant requested that they provide copies of the Agreement, Default Notice and Notice of Assignment. Mortimer Clarke Solicitors have not sent any of the documents requested under CPR 31.14 to the Defendant.
5. On the 13/03/2015 the Defendant sent a formal request for a copy of the original agreement to Marlin Capital Europe LTD pursuant to sections 77-79 of the Consumer Credit Act 1974 along with the statutory £1 fee. The Defendant has not received a copy of the original agreement from Marlin Capital in response to the request.
6. The Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.
7. At this stage, without any documentation in relation to this claim being provided by the Claimant or their solicitor, the Defendant is unable to plead further to the claim. The Defendant requests that the court orders the Claimant to provide the necessary documentation in order for the Defendant to fully plead their case else the Claim should stand struck out.
8. In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend their defence, and would ask that the Claimant bear the costs of the amendment.

For the avoidance of doubt, it is denied that the Claimant is entitled to the relief as claimed, or at all.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.


Following submission of this defence, I got a letter from Mortimer’s saying ‘the matter has been placed on hold’, the 28 days from receipt of defence passed, and thanks to the resources and advice on this site the claim was stayed. Maybe I should have gone for the kill at this point with an unless order, but thought 'let sleeping dogs lie' was the best course given it was unlikely they would have access to the requested documents.

Fast forward to 27/06/2016, and I received a letter out of the blue from Mortimer’s offering me a 75% discount on a different amount they claim I owe (£12,000) and a suggestion of a Tomlin Order to prevent ‘further court action’. I ignored this letter.

Then, on the 20/09/2016 I finally received a response to my original CPR request from Mortimer’s. In the letter they sent (attached) they note that they have enclosed a ‘reconstituted credit agreement’ (attached) and a notice of assignment. They suggest that to ‘move forward’ I must now put forward a ‘repayment proposal’ as they want to settle ‘without further court action’.

I notice that the agreement does not contain the ‘right to cancel’ clause within the T&Cs (instead it is crudely inserted on a totally unrelated sheet), and does not include a signature. Also, the notice of assignment (attached) is from Barclaycard to Marlin Capital, not EGG to Marlin Capital. Finally, they have not included any copies of the default notice originally requested in my initial CPR letter. Given the length of time it’s taken them to produce these documents, it’s likely this is all they have.

I’m not sure how to proceed at this point, and I would really appreciate advice/guidance from members of the site as to the best next move. Is this enough to lift the stay, and should I now try to settle (maybe offer settlement of original amount less 85% and Tomlin order), or should I respond with a letter stating that they have not yet fully complied with the CPR request by failing to produce original agreement, correct notice of assignment and default notice?

Please help!

[Amethyst]

Re: Marlin Captial/Mortimer Clarke Solicitors VS Jumble1

The account was originally opened in 2003 ? they have therefore failed to produce the original agreement or recon of it, which should be like this http://www.legalbeagles.info/forums/...03-credit-Card

[Jumble1]

Re: Marlin Captial/Mortimer Clarke Solicitors VS Jumble1

Thank you for the quick response!

Yes, they state the account was opened in 2003. The 'agreement' they have sent over is nothing like the example in your link, everything they have is what's in the attached PDF. Looks like an application form, with a separate generic terms and conditions. They state in the cover letter that they have sent a 'reconstituted agreement' and quote a case 'Carey vs HSBC' to argue that 'there is no obligation to provide a copy which includes a copy of the signature'.

It's taken them 18 months from the original CPR request to send what they have. Would this be enough to lift the stay on the county court claim?

[Amethyst]

Re: Marlin Captial/Mortimer Clarke Solicitors VS Jumble1

They would have to apply to lift the stay on the county court claim - which will cost them money, so it is in their interests to get it settled - but they don't seem to have much of a problem doing that despite havingt aken a year to get the documents. Personally I would reply to them stating that you dispute the terms they have sent are a recon of the original agreement, that they appear to be generic terms which you do not recall ever having seen before, although relating to a similar time period as the alleged agreement, you do not believe they have satisfied their obligations under the CCA s 78, even taking into account the ruling in HSBC v Carey and that should they apply to the court to lift the stay that has been in place since xxxxxx you will defend their application and continue to strongly defend their claim, also point out that the original agreement would have been with Egg, not barclaycard, and they do not appear to have included a copy of any notice of assignment from Egg to Barclaycard, nor any default notice. You could leave it there and see what they do, or you could at that point do a However in the interests of bringing this to a close I am prepared to make an offer of xxxxxx ( 75% discount ) in full and final settlement of the claim without any admission of liability to be paid by lump sum/ installments etc under a tomlin order that the claim will be discontinued once paid.

Just see if [MENTION=87380]Diana M[/MENTION]; or Joanna C; have any other thoughts on this.

[Jumble1]

Re: Marlin Captial/Mortimer Clarke Solicitors VS Jumble1

Thank you again for the advice!

I think I'm leaning towards pointing out the missing documents and lack of original application as you say, and doing a 'however in the interests of bringing this to a close' and offering a hefty discount sum 85 - 90% (they've already offered 75% off and from what I've read on here they have probably bought this debt for pennies)

As you say, will see if Diana M or Joanna C have any further comments before making final decision.

Thanks again for your help - would have a CCJ for the full amount against me if it wasn't for this site.

[Diana M]

Re: Marlin Captial/Mortimer Clarke Solicitors VS Jumble1

The 'agreement' they have sent over is nothing like the example in your link, everything they have is what's in the attached PDF. Looks like an application form, with a separate generic terms and conditions. They state in the cover letter that they have sent a 'reconstituted agreement' and quote a case 'Carey vs HSBC' to argue that 'there is no obligation to provide a copy which includes a copy of the signature'.

It's taken them 18 months from the original CPR request to send what they have. Would this be enough to lift the stay on the county court claim?

My instant reaction (without having run forensics over those documents) is you mustn't tell them what they've got wrong. If you do that you're giving them the opportunity to get it right which would be madness.

If you tell them the original agreement should be with Egg not Barclaycard then they'll go and recon one of those instead while saying to themselves "thanks for the tip-off". Ditto any reference to the Ts & Cs being generic.

Do you really want to pay them anything (however tempting the discount might be) if the debt is unenforceable in court?

They've had 18 months to come up with the goods. You say they've not produced the DN or the NOA, not even recons.

Creditors and debt purchasers often quote Carey v HSBC. Or perhaps I should say 'misquote' Carey v HSBC. They think that legal mumbo jumbo will scare you. They may be right about no need for a signature, but my boss (Joanna Connolly) was the lead solicitor on that case so we know the difference between honest and accurate "reconstituted" documents, and prima facie forgeries

Di

[Diana M]

Re: Marlin Captial/Mortimer Clarke Solicitors VS Jumble1

I'm leaning towards pointing out the missing documents and lack of original application

Are you sure about that?

Di

[Jumble1]

Re: Marlin Captial/Mortimer Clarke Solicitors VS Jumble1

Hi Di,

Didn't see your first post before making this response!

Yes, they've not produced either the DN or the correct NOA (egg to marlin), and yes it has taken them 18 months from the court claim being stayed to produce what they have.

My fear is that I cannot afford the full amount they are asking for - being completely truthful, I do recall having an egg card (it's 12 -13 years ago so cannot remember the full details), but the amount Marlin/Mortimer originally demanded in their claim is completely ridiculous, my only thoughts are that this 'debt' has been massively inflated with charges over the years. I'm worried that they will attempt to lift the stay, and I do not have the resources to fight them/pay for court costs etc - the instalment/discount/Tomlin option seems the least worst option?

Again, any advice you can give would be greatly appreciated.

[Diana M]

Re: Marlin Captial/Mortimer Clarke Solicitors VS Jumble1

My fear is that I cannot afford the full amount they are asking for . . . .

I'm worried that they will attempt to lift the stay, and I do not have the resources to fight them/pay for court costs etc - the instalment/discount/Tomlin option seems the least worst option?

You're reacting exactly as they had hoped. They've sent you rubbish paperwork and you've taken fright. They're hoping that while you're in scared mode you'll buckle under and pay them.

Was their offer letter headed Without Prejudice Save as to Costs? Did they refer to it as a Part 36 offer? Was there a deadline for accepting the offer after which it would be rescinded or court action would recommence?

Have you been sent s.86 annual statements ever since the account defaulted?

So far they've not produced the DN or a NOA according to you.

So far they've produced the wrong CCA and wrong Ts &Cs.

If this was a game of poker (and in some ways it is) then they've not got a very good hand have they

My advice at times like these is to consider all your options not just the worst case scenario before making a decision. If the worst case scenario is they lift the stay then their worst case scenario is they may not have a legal leg to stand on if they do. Perhaps they know that already.

If there's no deadline then you've got time to think this through over the weekend.

Di

[Jumble1]

Re: Marlin Captial/Mortimer Clarke Solicitors VS Jumble1

Yes, I am taking fright - I was never any good at Poker!

They have never sent any s.86 annual statements. The offer letter they sent through in June does give a deadline, does mention 'Without Prejudice save as to costs', but does not refer to a 'part 36 offer'. Also, (true to form from what I have read about this firm on these forums) they lie in the offer letter and state that 'the account balance is currently £12487' - £4k more than the amount originally claimed (attached).

Do you think I should ignore the latest letter (the one with the response to the CPR request and demand for me to make another offer - attached), and see what their next move is?