HELP. In Court vs Varde Investments/Hegarty LLP

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
My internet is out of action till Saturday so posting this on a library pc. Bad timing or what?
Am starting to draft my defence. Do I need to do it on the claim form they have sent as the dates on that have all expired?
All the statements IND have sent have had the payment slip part omitted. However, on the back of one of them in the fine print it states that Virgin money is issued by MBNA .
I did have a virgin card and never had a problem with it for years. I got into dispute with them after they hiked the interest rates. I opted out via the phone returned my card and was told to pay the min payment at the old rate until the balance zeroed and then account would be closed. They never left the rates at the old level though and but I continued to pay the old amount and rang them each month. The last statement I had off them was in April 2010 with a payment date of May 10th. Varde appeared to have got this debt several days later. I never heard anything from Virgin or MBNA as to this debt being sold or assigned to Varde. Vardes credit licence lapsed just after this and was not renewed for several months. According to the OFT Varde appears to have changed hands or been sold during the period of lapsed licence but I am unsure of the relevance of this although the lady at FOA implied it could be very serious and constitute unlawful trading as apparently the debt cannot pass along in this way? I am unsure of whether to mention this in my defence though.
Is it perhaps best to be brief and state bullet point facts?
For instance, I would state that INDs, Vardes and Heggarty’s failure to provide a notice of assignment constitutes a complete defence as it is unenforceable in court without one?
I would do similar with the lack of statements whilst in a period of non compliance.
I would argue that Virgin sold this debt unfairly.
I would question the agreement they have sent as it just is a box with a tick and could be anything. I should see a genuine agreement.
I am hoping that any one of these points would be enough. I have contacted the courts but they are unable to tell me if IND have filed anything with them.
Any suggestions are most welcome. I will check back Sat when pc working again and post any updates. I think I will respond to the claims on the claim form, I don't know what info they have sent to the courts, if it is the same stuff they sent me then it's a bit ropey.
Cheers.

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Right so they are saying by using the tick as your signiture that you signed the agreement online - strict them to proof that you took the agreement out online and that a tick is your signiture. Now unless they have a record of your IP address and your IP address has not changed, which alot do change regularly, they will have a near impossible task of proving you were the one that took out the agreement. To be honest i think they may have just simple made upt his agreement in response to the judges "proof in plastic" comment.

Also when did you actually take out the virgin credit card and did you take it out online? I ask as am a little bemused as to why the agreement says your creditor is MBNA when the creditor was VIRGIN, although MBNA may have managed Virgins credit services it should still have the virigin logo or company name as creditor not MBNA. Plus am not sure when MBNA took over Virgin credit card services either but i suspect it was not till after you had taken out the agreement.

Anyway which ever way the agreement goes in court you still have the lack of any Defualt notice that will prevent the court enforcing their claim. Strcit them to proof you received the DN rather than as well as strict them to proof of postage, as all postage proves is they posted it, where in order to prove you received it means they would have to have sent to your where you siginiture was required in receipt of the letter which they will not possibly have since they always send second class UKMail.

Another thing i noticed about the agreement is there are not reference numbers at the bottom of the page, where if you goto Virgin credit cards online terms and conditions there is a clear reference number at the bottom of each page. Such numbers are generally used when filling in order to recongise the date the document was created or edited etc - Virgin terms and conditions.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi,

Can't get my scanner to work so have took some pics of the agreement they sent.











Hope these links work. Theres loads more pages of terms and conditions but I haven't posted them.

Cheers

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Right no default notice means they can not enforce the claim in court

Sounds like the agreement they are using in court is a microfiche, is that so? if so then that is unenforceable too. As they are required to produce the original in court or a true copy the original with the terms and conditions contained within the same 4 corners of the agreement or clear reference made to the terms and conditions if seperate, which would connect the two. Also the fact you said it ws a virgin card, i assume this was taken out prior to MBNA buying Virgin's credit card services, if so then it would be headed VIRGIN and not MBNA on the agreement juts like the statements are headed VIRGIN when you first got the card.

I assmue the documents they have sent you is what they intend to rely on in court to back their claim?

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Teaboy,

I don't appear to have been sent a default notice. On the last Virgin statements it says "This statement is also your notice of default sums". This is written on the back.
I have a scanner here somewhere, I will dust it off and try and do some scanning; if not I'll get busy typing.
Regarding the agreement they have sent. It is a print off of 13 pages of terms and conditions written in that microscopic text that we all know and love! There are 5 more pages with a ref no as its title. Underlined is the wording "Credit card agreement regulated by the consumer credit act 1974."
Next line. Your lender is MBNA and their address.
Then my name and address.
There are then 3 pages of more terms, the last two pages consist of just a box with a tick in it. One saying you agree to the CCA 1974; and the other saying that the tick is your signature.
The ref no is only on the first page. My name is not included on the pages with ticks and none of the pages except the first one have any ref details on them to show they are all part of the same document.
I will get scanning...

Cheers.

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Default Notice - have you had got one or was one included in what they have now sent you?

If not then without one their claim can not proceed as it is unenforcable without a valid Default notice.

Can you scan and post up a copy of the agreement so we can see if its enforceable or not? Are the terms and conditions that came with it the original terms and condions?

What date was the last payment made on the account, was in more then 6 years ago (5 if you live in scotland)?

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi again,

Have recovered from my initial shock and have had a good look through all these documents.
There is a huge wad of statements, possibly every single statement I ever had They go up until the end of April 2010 with a payment date of 9th May 2010. I had been in arrears and missing payments according to several statements prior to this one. In the claim form it says that Varde bought the debt on 26 May 2010. I had been in dispute with Virgin regarding the levels of interest they kept applying and couldn't make the min payments. I gave them notice that I would cease payments until they could come to an arrangement with me as I was unable to pay. They kept ignoring me and sending statements but then I heard no more till Varde had me with a CCJ.
In amongst this wad of statements are these sheets with "separator page" typed all over them, I assume its an office thing. Anyway they have the date printed on them of 24/10/11. I sent a data request to them which they received on 21/10/11 along with £10 fee and large stamped addressed envelope. They never replied to my request but I think these statements were what they must have printed of at the time but then not sent them until now. They have sent no assignment notice or other notification letters. However with the covering letter it states that they are complying with the judges order and supplying a copy of the claim form, agreement and statements. I would have thought they should have something to state that Varde were involved etc. They are in default of my request for data but managed with the judges request. He didn't seem to ask for as much info as I thought IND would be required to give and I feel that IND have pulled a sly one here as although they have sent an enormous amount of documents, there's not much info in them and nothing about Heggarty, Varde or IND having any rights to this debt.

I am gonna have a good think about this but I'm leaning towards trying to put up a fight. I don't know if I have to go back to court or what happens after I file a defence. I still feel that I haven't been given enough information to make a good argument. I know lots of letters went back and forth to Virgin and would have thought that all such correspondence would have been relevant and should have been had by IND who should then have sent copies to me. I don't believe Virgin should have sold the debt on without telling me. I will have a good look through all my docs to see what I can find. I never looked for Virgin stuff before, Just IND, Varde and Heggarty.

Cheers.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi folks,
Have received lots of info from IND. I hoped they weren't going to bother. I think they may have me by the proverbials here.

It is to do with a Virgin card which I did have in 2006, I used it for several years and I remember they wrote to inform me that they were increasing the interest by a heck of a lot. I saw in the small print that you could "opt out", so I rang them and said I wanted to opt out. I stopped using the card, fell behind with my payments and heard nothing. I had forgotten about it but it's all flooding back now.

IND have sent a copy of the original claim form, hundreds of pages of statements and a credit card agreement which has my signature as a tick in a box. It goes on to say that by ticking another box you "confirm it is a valid means of establishing the authenticity and integrity of my signature to this credit agreement. I understand that MBNA will hold this acceptance data on their files."
I remember clicking on these now.

I do not know how to proceed here.

Cheers.

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

If they have not supplied the info by the 16th then i would suggest a N244 form applying for strike out and removal of adverse data on your credit file (since they do not have proof the debt is yours) and making a cost order to recover the cost of the original set aside N244 and the N244 applying for their claim to be struck out.

[QCKate]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,

Just received a letter from the court regarding the set aside. Not much info in it, this is what it says...

"Upon hearing the Defendant in person and on oath and hearing the Legal Representative for the Claimant

IT IS ORDERED THAT

1. The judgment against me be set aside.
2. The claimant shall by Nov 16th identify the card in respect of which the alleged debt is due, and produce the defendant with a copy the claim form.
3. The defendant shall file his defense to the claim by 4pm 30th Nov."

If varde don't get the info in by the 16th do I still need to wait till end of Nov? I would rather get straight in there on the 17th.

I am still unsure of exactly what to say in my defense as the manner in which things are presented seems to be almost more important to the courts than what is actually being said. They should teach a bit of law in school as it would come in bloody handy in the real world. ( That's my moan for today!)

Cheers.

Cant see any reason why you wouldn't go striaght in there on 17th if they havent identified the card. You need that info to file your defence.

Keep up the presssure Heph!!!!

QCK

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Have you recieved a copy of the claim form yet? Sorry if you have have answered that already, only had time to clance through the most recent posts.

Hi,
No, I still have received nothing. Am expecting to get something off them at the very last second like they did for the court hearing. Have posted the particulars of claim from the original claim form but I am unsure if that will change now that I have had the original judgment set aside.

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Have you recieved a copy of the claim form yet? Sorry if you have have answered that already, only had time to clance through the most recent posts.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,

Just received a letter from the court regarding the set aside. Not much info in it, this is what it says...

"Upon hearing the Defendant in person and on oath and hearing the Legal Representative for the Claimant

IT IS ORDERED THAT

1. The judgment against me be set aside.
2. The claimant shall by Nov 16th identify the card in respect of which the alleged debt is due, and produce the defendant with a copy the claim form.
3. The defendant shall file his defense to the claim by 4pm 30th Nov."

If varde don't get the info in by the 16th do I still need to wait till end of Nov? I would rather get straight in there on the 17th.

I am still unsure of exactly what to say in my defense as the manner in which things are presented seems to be almost more important to the courts than what is actually being said. They should teach a bit of law in school as it would come in bloody handy in the real world. ( That's my moan for today!)

Cheers.

[charitynjw]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks, major update...

Just got back from court, I have won and my application to have the judgment set aside has been granted.
Varde sent a solicitor to represent them, but he did not know who they were either and had never heard of IND. The paperwork he was sent was illegible and he was not able to make any comments except to request summary justice and allocate costs. He had been instructed to do this.
I now gather that this debt relate to a credit card that MBNA were the underwriters for but we don't know which card. The judge has given Varde 14 days to show proof "in the plastic" of this matter. (Vardes solicitor appeared to know what this meant but I am baffled!) I have to submit a defence by Nov 30th but I think I need to see what Varde do next.
It was a very scary thing, I was quite worked up and got nervous at the time. I was called by the judge to give evidence under oath. He asked if I had any other credit cards, I said I had two which were both active and were up to date. He took their details. He asked me if I ever had default judgments from any other credit cards in the past. This is my first CCJ so I answered no. He explained that this would get very serious if I was wrong.
In my statement to the court I said how Varde, Heggarty and IND had all failed to supply data. I was able to offer proof of delivery to IND and show that they had not responded either and were in default. I also said about the statements of arrears which I never received either and quoted the section about this makes the matter unenforceable whilst in a period of non compliance. I kept hoping the judge was gonna say that's enough and cancel the whole case but no such luck. I then stated that I believed I had acted promptly with regard to my N244 form. (This was mentioned in the nelson v clearwater case cited by Heggarty, so I made sure to get that one in there!!)
I then argued that I could win this case as Varde,Heggarty and now IND had all failed to comply with my requests for data and I believe they have no evidence or else they would have provided it by now.
Varde solicitor spoke with me after and said to wait and see what happens next and showed me how to format my defense to the court. I think it best to get a second opinion as he would obviously rather I messed it up.
I don't know where to go from here now, I don't know if I feel relieved, or more worried than before... But, if I never got the set aside, I would have lost. I just don't know how much heavier this is going to get or what my next move should be.
If anybody wants to learn something from reading this, then I would state, if you ever find yourself getting hassled by a debt collector, "Do not throw their letters out or ignore them hoping they will go away. They don't. "

Thank You to everyone who has advised me, I think I would be on the run now if it hadn't been for your wise council.

I will post further developments as they happen.

Cheers.

I'm not absolutely certain, but I think this refers to 'proofs', ie extremely high quality, specially-minted coins, which are often put into plastic cases for safe-keeping.
If so, the judge is telling them that they must supply some very good evidence.

[SpringerSpaniel]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

DEFENCE

The Defendant puts the Claimant to strict proof as to these and any Credit or other Agreements it relies on in this Claim and their terms; to any Default Notice it seeks to rely on; to the alleged assignment between MBNA and itself; and to its alleged compliance with the pleaded Pre-Action Protocol.

The Defendant admits non-compliance but asserts that the Agreement had first been terminated by the non-compliance not of himself but instead of the Claimant, namely that:
Give details of their breaches........


The Defendant relies upon the provisions of the Consumer Credit Acts, which he argues are implied terms of any relevant agreements.


The Defendant asserts that due to the Claimant's prior breach of the said Agreement, at the date of the alleged Default on his part, no agreement was in force between himself, MBNA or the Claimant , and that accordingly no money is owed by him to either MBNA or the Claimant. Accordingly no interest can be owed as pleaded by the Claimant.


The Defendant accordingly denies this or any other liability to the Claimant.