MBNA / Reston - URGENT - Defense sruck out! pls Help!

[deepindebt102]

Hi Guys,

I am very new here and I need an urgent help.

I have various issues but the most pressing is a Court Case with MBNA and Preston Solicitors. I heard they are the nasty ones!

I was living in the UK till January but due to my health and being unemployed, I had to move back to my country of origin, in the middle of Europe (sorry for being secrecy, just do not want people to find me this way)

I have a CC debt of 25k from MBNA what I could not pay due to job loss and health issues.
I tried to negotiate with debt collectors, offered 30% but turned down and referred it to Prestons, they went to Court right away. I have defended the claim (filed online in December) and then they requested to transfer the case to my local Court close to London, (where I used to live).
I was already abroad that time and did not get the mail about the transfer and the hearing so could not attend.
On the hearing they have struck out my defence and now I have 2 weeks to file something otherwise I guess it is CCJ. Not sure really, never been to this situation before.

This is the letter I got from the Court
1, the said defence of 10/12/2011 is Struck Out pursuant to CPR 3.4 (2)(a).
2, Unless the Defendant files and serves a defence which is the opinion of the District Judge discloses reasonable grounds for defending the claim by 4pm by 30th March, the Claimant may thereafter enter judgement in default for the amount claimed and fixed costs
3, The court has made this order of its own initiative. You are entitled to apply to have this order set aside, varied or stayed but must do within 7 days from the day on which this order is server upon you or such other perios as may be directed above.

The credit card was opened on 14th 09 2006! I was reading aroundand it seems it is good if the CC was opened prior 2007 but could not find why?

What you guys think, what options do I have to avoid CCJ?

If necessary, I could make a payment for final settleemnt in the region of 5-6k, not really much, do you think there is still scope to negotiate or offer this?

Any help is much appreciated!

Thanks,
John

[teaboy2]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

You need to apply for a set aside on the grounds you no longer reside in the UK and are therefore not subject to UK law, unless off course you own property in the UK.

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

You need to apply for a set aside on the grounds you no longer reside in the UK and are therefore not subject to UK law, unless off course you own property in the UK.

Is this correct?
If i take a contract out in the UK then move abroad am i no longer liable?

Is there authority for this?

Peter

[teaboy2]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

If the person no longer resides in the UK then the court has no jurisdiction other them on civil matters. But as i said it depends if the OP has property here in the Uk.

For example if someone tried to sue me in a US court for a civil matter thay occured when i was in the US on holiday, the US court would have no jurisdiction they would therefore have to sue me in a UK court.

As for CCA regulated agreements they can only be enforced in a UK court. Though the creditor can have it EU partners chase you for payment they can not enforce the debt in a UK court when you no longer live in the UK.

A UK court can issue an EPO though - European Payment Order which came into force in January 2009 and can be used to enforce collection of a UK debt without the CCJ. The European Payment Order is only available for cross-border cases. It allows for citizens and businesses to use a simple method to enforce uncontested payments.

More info can be found here Can I Be Sued For An Overseas Debt? - Yeah i know bloody cag lol

But basically a UK court can not enforce unless the person is within the EU and agreements between countries allow it, but either way it is very costly and will take a long time to trace the debtor.

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Hi Guys,

I am very new here and I need an urgent help.

I have various issues but the most pressing is a Court Case with MBNA and Preston Solicitors. I heard they are the nasty ones!

I was living in the UK till January but due to my health and being unemployed, I had to move back to my country of origin, in the middle of Europe (sorry for being secrecy, just do not want people to find me this way)

I have a CC debt of 25k from MBNA what I could not pay due to job loss and health issues.
I tried to negotiate with debt collectors, offered 30% but turned down and referred it to Prestons, they went to Court right away. I have defended the claim (filed online in December) and then they requested to transfer the case to my local Court close to London, (where I used to live).
I was already abroad that time and did not get the mail about the transfer and the hearing so could not attend.
On the hearing they have struck out my defence and now I have 2 weeks to file something otherwise I guess it is CCJ. Not sure really, never been to this situation before.

This is the letter I got from the Court
1, the said defence of 10/12/2011 is Struck Out pursuant to CPR 3.4 (2)(a).
2, Unless the Defendant files and serves a defence which is the opinion of the District Judge discloses reasonable grounds for defending the claim by 4pm by 30th March, the Claimant may thereafter enter judgement in default for the amount claimed and fixed costs
3, The court has made this order of its own initiative. You are entitled to apply to have this order set aside, varied or stayed but must do within 7 days from the day on which this order is server upon you or such other perios as may be directed above.

The credit card was opened on 14th 09 2006! I was reading aroundand it seems it is good if the CC was opened prior 2007 but could not find why?

What you guys think, what options do I have to avoid CCJ?

If necessary, I could make a payment for final settleemnt in the region of 5-6k, not really much, do you think there is still scope to negotiate or offer this?

Any help is much appreciated!

Thanks,
John

HI

YOu say your defense was struck out.
Can I ask what your orriginal defense was?
Peter

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

If the person no longer resides in the UK then the court has no jurisdiction other them on civil matters. But as i said it depends if the OP has property here in the Uk.

Sorry isnt this a Civil matter ?


For example if someone tried to sue me in a US court for a civil matter thay occured when i was in the US on holiday, the US court would have no jurisdiction they would therefore have to sue me in a UK court.

I think that if the contract was made in the US then it could be enforced in the US. It would be then upto the legal system to enforce the judgement by whatever means.

As for CCA regulated agreements they can only be enforced in a UK court. Though the creditor can have it EU partners chase you for payment they can not enforce the debt in a UK court when you no longer live in the UK.

Yes they do of course, the case can be enforced without the denbtor being present , i believe it is called a default jugment.

A UK court can issue an EPO though - European Payment Order which came into force in January 2009 and can be used to enforce collection of a UK debt without the CCJ. The European Payment Order is only available for cross-border cases. It allows for citizens and businesses to use a simple method to enforce uncontested payments.

What happens if the de btor moves to mexico

More info can be found here Can I Be Sued For An Overseas Debt? - Yeah i know bloody cag lol

But basically a UK court can not enforce unless the person is within the EU and agreements between countries allow it, but either way it is very costly and will take a long time to trace the debtor.

The difference is that the agreement was made over here and action can be taken over here, enforcing the judgment may be more diffficult but that is all.

THe thread you refer to i think is about a breach that takes place over seas being litigated on in a differnet country. different scrnario.

I wish it were true, i could just move to my brothers in calais and forget my debts

Peter

[teaboy2]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Originally Posted by teaboy2
If the person no longer resides in the UK then the court has no jurisdiction other them on civil matters. But as i said it depends if the OP has property here in the Uk.

Sorry isnt this a Civil matter ? Typo, "other" should have been "over"


For example if someone tried to sue me in a US court for a civil matter thay occured when i was in the US on holiday, the US court would have no jurisdiction they would therefore have to sue me in a UK court.

I think that if the contract was made in the US then it could be enforced in the US. It would be then upto the legal system to enforce the judgement by whatever means. Where the contract was signed is not relevant, the claiment most state their claim in the defendants local court and even then there most be strict procedures followed and claim served as per the defedants countries legal procedures. off course if their is no agreement between countries alllowing another national to sue the residing national then they (claiment) are screwed

As for CCA regulated agreements they can only be enforced in a UK court. Though the creditor can have it EU partners chase you for payment they can not enforce the debt in a UK court when you no longer live in the UK.

Yes they do of course, the case can be enforced without the denbtor being present , i believe it is called a default jugment. Which can only occur if last known address was in the UK, however it can be set aside ion the basis the defedant was not and no longer resides in the Uk

A UK court can issue an EPO though - European Payment Order which came into force in January 2009 and can be used to enforce collection of a UK debt without the CCJ. The European Payment Order is only available for cross-border cases. It allows for citizens and businesses to use a simple method to enforce uncontested payments.

What happens if the de btor moves to mexico - Depends if there is any agrrement between the UK and mexico for a UK company to sue someone residing in mexico or not.

More info can be found here Can I Be Sued For An Overseas Debt? - Yeah i know bloody cag lol

But basically a UK court can not enforce unless the person is within the EU and agreements between countries allow it, but either way it is very costly and will take a long time to trace the debtor.

Read more at: MBNA / Reston - URGENT - Defense sruck out! pls Help! - Legal Beagles Consumer Forum

The difference is that the agreement was made over here and action can be taken over here, enforcing the judgment may be more diffficult but that is all.

THe thread you refer to i think is about a breach that takes place over seas being litigated on in a differnet country. different scrnario.

I wish it were true, i could just move to my brothers in calais and forget my debts

Peter

As i said where the agreement was made is irrelevant, a UK court can only enforce a CCA agreement and only when the defendant is residing in the UK at the time of judgment. Though they can issue an EPO which can be enforced in EU countries but they need to know where the defendant is living in order to do this, plus the country within the EU where they reside must have an agreement with the UK that allows for people residing in the EU country to be sued. Plus judgement must have been issued whilst the defendant was still living in the UK for the judgement to be valid, without such judgement they can not, as far as am aware, issue an EPO.

Basically a UK court has no jurisdiction over someone not residing in UK - the current judgement in this case is invalid as the defendant was not residing in the UK at the time. In order to have an EPO their must be a judgement made whilst the Defendant was resident in the UK - Off course this does not stop the claiment taking it to a court in the country where the defedant currentley resides, (unless said EU country is not part of any agreements that would allow it.). Basically if they do not know where the defendant is they can do nothing. As the defendant is not living in the UK they can have the default judgement set aside on the basis that the court does not have jurisdiction to make such judgement whilst the defendant was not residing in the UK.

Its complicated i know, but thats the jess of it. The creditor would have to trace them, then check the legalities and whether they are permitted to sue the debtor in the country the debtor resides in, if not they are screwed. if they are permitted they hvae to follow strict EU legalisation and follow the legal procedures of the country where the defendant resides.

Anyway thats my understanding of it and i shall leave it at that, as its unlikely the creditor will take it further whilst the OP is living abroad at an unknown location. Good night.

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

No Teaboy

You said that the OP could use the fact that he was not resident here to have the case set asside.

He cannot.

If the agreement was made over here it can be enforced over here.
A regulated agreement is made between the creditor and the debtor, the debtor is defined as an "idividual, none coperate body or simple partenership" there is nothing said about nationality. The debtor does not have to be present for a judgment to be made.

THe OP cannot use his foriegn status to set this asside.

Peter

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Hust for clarity

THe court that a CCA proceedings is held at is a matter for CPRs, (30) i think this says the case may be transferd to a more convenient court.

If it cannot be transfered it does not mean that the case cannot take place.

OP there may be legitimate reasons for you to set your case asside we meed more information.

Peter

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

As i said where the agreement was made is irrelevant, a UK court can only enforce a CCA agreement and only when the defendant is residing in the UK at the time of judgment. .

Do you have authority for this?

Peter

[teaboy2]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

If the defendant was not residing in the UK at the time of the trial/court hearing or judgement then it can be set aside peter. It does not matter if the agreement was made here in the UK or not. A uk Court can not enforce a CCA on a person not residing in the UK at the time as the UK court has no jurisdiction over that person when they are not living in the UK.

Hence why the judgement can be set aside based on the court not having jurisdiction over the debtor, the claiment must take the matter to the debtors local court, just like they would have to here, but to do that they needs to be an agreement in place between UK and the country the debtor resides - Or for an EPO to be issued by the UK court if the debtor resides in one of the EU nations that allows EPO's.

A defendant has the right to defend, if they are not in the UK then they can not defend themselves and its unreasonable for them to be expected to come to the UK to defend against what is basically just an accusation, hence why the UK court has no jurisdiction over foreign nationals living in foreign countries or do you seriously believe the UK court can issue CCJ's against people residing in every country in the world, just because the contract was signed here in the UK - Sorry peter but it simply does not work like that.

If the case can not be transferred to the debtors local court in the nation they reside in, then yes it means the case can not take place, as the debtor is not under UK courts jurisdiction. "A CCJ can only be obtained against a UK resident, if you are living outside the UK they cannot legally obtain one, although there are incidents where some creditors have obtained one using a previous known address, if this has happened it can easily be set aside."

"A reciprocal agreement in the UK means a UK Court can enforce a CCJ using the legal system of the other country. If there is no such agreement in place, a creditor can sell a debt to an agency in the relevant country and debt recovery procedures will commence under the law of that land. A creditor may have their own office in that country, or relations with other credit companies in that area. No such agreement is likely to exist between the Claiment and the Debtor."

"A CCJ cannot be obtained against a non UK resident, although it has happened when a creditor has used the last known address. If they do this an application to have the CCJ set aside can be made. National Debtline England & Wales | Debt Advice | Factsheet 12 How To Set Aside A Judgment In The County Court" - See the first bullet point - "an order was made against you in your absence, in certain circumstances".

Enforcement via an EPO requires proof of original service of claim on the debtor which the debtor can easily dispute if they where not living at the UK address at the time

The jurisdiction of a court is the territory over which a court has power to make and enforce orders. When it is used in this sense, it is a geographical area. The jurisdiction of English Courts is England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales.
The word is used in another sense to indicate whether or not a court has power to adjudicate a dispute. If the court is competent to hear a dispute, it is said to have jurisdiction. Jurisdiction may be disputed on the basis of the nature or characteristics of the parties to the litigation or the characteristics of the dispute before it.
Whether or not a court has power to hear international disputes, parties may bring a challenge as to whether the court does have power hear and determine dispute. For example, if the dispute has no nexus with England or Wales, an English court is likely to decline to hear the matter, as the dispute and associated litigation has no business before English court. Some other court would be a more appropriate forum for the parties to resolve and determine their disputes.
Also, it may be that a claimant is not recognised by English Courts as having say, locus standi, or capacity to sue (such as a minor), or a defendant enjoys immunity from suit (such as a diplomat).

English courts will have jurisdiction against foreign defendants (whether a company or individual) where:

1. the defendant submits to the jurisdiction;
2. the defendant is in the jurisdiction, even on a transitory basis, and they are properly served in accordance with the Civil Procedure Rules. The court may decide at a later date that English courts and the lex situs is forum non conveniens;
3. a rule of law permits the claimant to serve the defendant out of the jurisdiction. For commencement of proceedings in most countries (the notable exception is members of the European Union) is subject to the discretion of the court. The court will consider whether England is the most appropriate forum for a trial on the issues to be litigated (a forum conveniens).

These rules are generally relied upon when no treaty or convention exists to serve proceedings out of the jurisdiction.

Usage: A supplier from France to the UK market submitted to the exclusive jurisdiction of the courts of England on the basis of its contracts entered into with UK companies.

"When a person out of the jurisdiction voluntarily enters an appearance before a court of England (other than to contest jurisdiction of the court), the court has jurisdiction over the defendant. The principle applies whether or not there is a previous agreement between the litigants. The rationale is based on the theory that a person who would otherwise not be subject to the jurisdiction of the courts consents to the jurisdiction by challenging the merits of the case.
Usually the first form of communication with a court by a defendant will be by filing an acknowledgment of service. It is at this point that the defendant notifies the court that it intends to contest the jurisdiction of the court. By failing to file an acknowledgment of service (assuming service has been properly effected), the claimant may proceed to obtain Summary Judgment on the claim. Any other step that amounts to a recognition of the court’s jurisdiction in respect to the particular claim will be taken to be a submission to the jurisdiction, such as filing a Defence or requesting an extension of time for filing a Defence. "

Procedure for disputing the court’s jurisdiction

11

(1) A defendant who wishes to –
(a) dispute the court’s jurisdiction to try the claim; or

(b) argue that the court should not exercise its jurisdiction

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.

(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.

(4) An application under this rule must –
(a) be made within 14 days after filing an acknowledgment of service; and

(b) be supported by evidence.


(5) If the defendant –
(a) files an acknowledgment of service; and

(b) does not make such an application within the period specified in paragraph (4),

he is to be treated as having accepted that the court has jurisdiction to try the claim.

(6) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including –
(a) setting aside the claim form;

(b) setting aside service of the claim form;

(c) discharging any order made before the claim was commenced or before the claim form was served; and

(d) staying the proceedings.


(7) If on an application under this rule the court does not make a declaration –
(a) the acknowledgment of service shall cease to have effect;

(b) the defendant may file a further acknowledgment of service within 14 days or such other period as the court may direct; and

(c) the court shall give directions as to the filing and service of the defence in a claim under Part 7 or the filing of evidence in a claim under Part 8 in the event that a further acknowledgment of service is filed.


(8) If the defendant files a further acknowledgment of service in accordance with paragraph (7)(b) he shall be treated as having accepted that the court has jurisdiction to try the claim.

(9) If a defendant makes an application under this rule, he must file and serve his written evidence in support with the application notice, but he need not before the hearing of the application file –
(a) in a Part 7 claim, a defence; or

(b) in a Part 8 claim, any other written evidence.



So 14 days after AoS you then file an application N244

Above Qoutations taken from Cerbersalert posts on CAG.

I think that makes it as clear as anyone could make it. A UK court does not have jurisdiction over a person living outside of the UK.

Now Peter lets not back track and ruin the last few weeks peace, by entering an arguement again. You have your opinion i have mine, lets leave it at that as its not going to benefit the OP if we argue over this as we both know the chances are the creditor will not chase them when they are living abroad.

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Hi

Yes i am not saying tht you cannot apply for a case to be set asside because you could not attend the hearing.
This is nothing to do with nationality.

Jurisdiction again is a differnt thing entirely.
If the ontract was made in the uk under the cca then it cn be enforced in the UK under the CCA, it really is no more complex than that.

You cannot escape inforcement by going aboroad.

What you are saying is that an english court has no jurisdiction to make judgement on an English contract, this is incorrect, and does not reflect the true meaning of all the preceeding post.

Peter

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

"A CCJ can only be obtained against a UK resident,.

HI

This is intersting.
Is it just county court judgments that cannot be obtained against a none UK resident or just judgments in general.

I mean are all foriegners immune from our legal system?

Peter

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

If the defendant was not residing in the UK at the time of the trial/court hearing or judgement then it can be set aside peter. It does not matter if the agreement was made here in the UK or not. A uk Court can not enforce a CCA on a person not residing in the UK at the time as the UK court has no jurisdiction over that person when they are not living in the UK.

.

AT the risk of getting banned again

The court in a civil case decides who has the right to reclaim goods or liabilities under a contract.

It does not matter who the debtor or claimant is or where they come from it is about who is liable under the agreement.

Once the judgment is made, it is possible that inforceing this judgment may be a problem.

But the actual proceedings leeding upto the judgment are not effected by the nationality of either party, as long as the contract was drawn up under the jurisdiction of the CCA.

Peter

[teaboy2]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Hi

Yes i am not saying tht you cannot apply for a case to be set asside because you could not attend the hearing.
This is nothing to do with nationality. - Absence can mean many things, illness, or not being in the country at the time, or not being a resident within the UK.

Jurisdiction again is a differnt thing entirely.
If the ontract was made in the uk under the cca then it cn be enforced in the UK under the CCA, it really is no more complex than that. Yes it can be enforced in the UK - If the debtor is residing in the Uk of accepts UK court Jurisdiction. But a debtor living outside of the UK is not under the geographical jurisdiction of the UK courts, as such no court case can go ahead without the debtor being given the chance to defend, in which case they can acknowlegde and dispute the UK courts jurisdiction over them as they do not reside within the court geographical jurisdiction.

As such the claim can not go ahead and the court can not enforce a claim or issue a CCJ against a person residing outside of the courts geographical jurisdiction, without the debtor agreeing to the UK Courts jurisdiction. Therefore the Creditor will have to seek to make their claim in a court in the country that the Debtor lives in, but no foreign court can enforce a consumer credit act regulated agreement, and thats where it get complicated and expensive as the foreign court will have to follow UK legalislation as though it was a UK court, and the claiment has many hurdles to get through in order for that to happen.

You cannot escape inforcemnt by going living aboroad. - Yes you can, if a counrty does not have an agreement with the UK that allows people living in that country to be subject to UK court rulings, then the claiment is screwed. Or are you saying is someone in the US, got a judgement against me in the US, that they can enforce it on me, when i do not recongnise US jurisdiction over me since i reside in the UK. Why do you think americans always end up suing UK people in UK courts instead - its because the US court has no jurisdiction over UK residents.

You seem to be confusing the difference between a judgement being issued whilst a person lived in the UK and one as the result of a claim heard in court whilst the persons resided outside of the UK. If they were residing in the UK at time of judgement, then yes you are correct the UK court can enforce and the debtor can not do anything about it. But if the debtor resided outside of the UK (and had not agreed to Uk court jurisdiction) at the time of judgement, the judgement the court giving judgement did so without jurisdiction over the debtor, as such the judgement can not stand as it was made outside of the courts jurisdiction.

What you are saying is that an english court has no jurisdiction to make judgement on an English contract, this is incorrect, and does not reflect the true meaning of all the proceeding post.

No am not saying that at all Peter, what am saying is that regardless of the contract, the UK court can not give judgement over a person whom the UK court has no legal jurisdiction over. A UK court can not give judgement over a man living in Greenland for either civil or criminal matters therefore can not hold a trial over them, without first extraditing them to the UK for criminal trial, or without the man in Greenland first agreeing to UK jurisdiction for civil trial. If a UK court was able to give judgement regardless of the fact that the defendant was not in the UK - then we would see a hell of a lot of miscarriages of justice.

In order for th UK court to have jurisdiction over a person, that person most reside within UK sovereign territory as that is the territory that the UK courts have jurisdiction over. If a person resides outside of UK territory then the UK courts are powerless unless their is an agreement between the two countries or the country allows the use of EPO's or the defendant agrees to the UK court having jurisdiction.

Peter

Just because the contract is english and was sgined in england, it does not give the UK court jurisdiction over a person outside of the UK. Therefore a UK court can not enforce or pass judgement on a person living outside of the UK, regardless of where the contract was signed. In other words, just because a contract exists, such contract does not give the UK court jurisdiction over a person that does not reside in the UK