HELP. In Court vs Varde Investments/Hegarty LLP

[QCKate]

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.

Well done Hephie!

Must be good chance that theyll cave in.

Youve won the battle, now win the war!!!!!

QCK

[mr.ton]

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

Go for the jugular and screw the b*stards for everything you can get!

[Judge mental]

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

Hi Heph

Well done, the default judgement is now set aside which means the case goes back to the point where they submitted their claim and you have the opportunity to defend the claims against you.

I would not suggest you just sit back and wait for their next move, which may or may not be that they issue a notice of discontinuance or if they do not show a cause for action within 14 days the court may strike out their claim. Given the amount of time needed to properly research and prepare your arguments I suggest you proceed on the basis that you have a case against you to defend, whilst accepting that it may be aborted before completed.

Once your defence is submitted they will have the opportunity to respond and a date will be set for the contested matters to be heard and determined.

If you want help with your defence can you post up the particulars of claim

Stuart

[teaboy2]

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

Well Done Hephaestus.

If you need any help with preparing your defense, just let us know here. Like Judge mental said, you need to work on your defense now. Hopefully they will discontinue, but you can not afford to sit back and do nothing on that hope alone as they may well decide to continue the claim.

[Hephaestus]

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

Hi Folks,

Thanks for your kind words and offers of help. Any help or advice is greatly appreciated. I am not sure exactly what the particulars of claim are. The only info I have so far is that Varde bought a debt from MBNA and Heggarty and IND are working with them. Is the relevant information likely to be sent to me or to the court regarding this two weeks "proof in the plastic" request by the judge? I have been unable to fathom out what this expression means.
I am not exactly sure what Varde are going to say and am unsure of how to begin building a defense.
All the paperwork I have names Varde as the company which wants the money, it was only via Heggartys response to my application for a set aside (which I received a copy of the day before the hearing) that MBNA were mentioned. Up until that point I wasn't going to mention them. I stated I had was not or never had been an MBNA customer. This was when the judge placed me under oath and asked if I had ever had a credit card? He was thumbing through some documents on his desk and I was praying that it wasn't a credit history check list thing he had with him. I have had past disputes with CC companies but have never had a CCJ enforced against me before. He kept repeating the question and looked through his notes each time he asked me.. I hope that moment does not come back to haunt me. He seemed happy though that I had two active cards that were "live" (Vardes solicitor mentioned this to me afterwards) and not in arrears.
Any suggestions of how I should proceed are most welcome.

Thanks again.

[Judge mental]

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

hephaestus

For your information, taken from Civil Procedure rules

Contents of the particulars of claim

16.4(1)
Particulars of claim must include –
(a) a concise statement of the facts on which the claimant relies;
(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);
(c) if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement to that effect and his grounds for claiming them;
(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and
(e) such other matters as may be set out in a practice direction.
(2) If the claimant is seeking interest he must –
(a) state whether he is doing so –
(i) under the terms of a contract;
(ii) under an enactment and if so which; or
(iii) on some other basis and if so what that basis is; and
(b) if the claim is for a specified amount of money, state –
(i) the percentage rate at which interest is claimed;
(ii) the date from which it is claimed;
(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;
(iv) the total amount of interest claimed to the date of calculation; and
(v) the daily rate at which interest accrues after that date.
(Part 22 requires particulars of claim to be verified by a statement of truth)


Particulars of Claim must be served with the application or within 14 days of the defendant receiving the claim form.

If they are brief, they may be written within a small box on the claim form otherwise they are separate sheets attached to the claim form..4

Given that the court has asked for proof within 14 days I assume the POC served with the claim are either inadequate or non existent.

Dont worry too much about it at this stage, in law 'he who claims must proove' . . . . . I suggest you base your first line of defence on that. If there are no POC's, then your defence would be -

you cannot admit or deny the claims made against you as the claim is vague and the claimant has not provided Particulars of Claim in breech of section 7.4 and 16.4 of the Civil Procedure rules. The Claimant has also refused to respond to requests for more information and cause of action.

You might want to familiarise yourself with the Civil Procedure Rules and Practice directions.

Now there will be a hearing they will have to produce a copy of an agreement, the original must be produced in court on the day.

The Judges comment 'proof is in the plastic' is not a legal term I am familiar with, I assume it is some attempt at humour being a variation of the better known phrase 'the proof of the pudding', meaning they have to provide proof they have a legal right or cause to take action.

If the do come up with particulars of claim, your defence addresses each of their points, either admitting or denying and providing evidence to support your assertions.

hope it helps

Stuart

[Hephaestus]

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

Hi ,
Ive been having trouble finding a document with the particuars of claim on, I have managed to get a copy of the original claim form from the courts, I believe this is the document the judge was looking at whilst he was quesioning me. Here it goes word for word.

Particulars of Claim.

The Claimant claims for sums due under a/various Credit Agreement(s) entered into between MBNA Bank Europe Ltd and the Defendant. The rights of MBNA Europe Bank Ltd passed to the claimant pursuant to an assignment dated 26/5/10 between MBNA Europe Bank Ltd and the Claimant. The agreement(s) was/were terminated upon the defendant failure to comply with the terms of the Agreement(s) and or the statutory Notice of Default served by MBNA Europe Bank Ltd. The Claimant complied with Section III and IV and Annex B of the PD Pre-Action Conduct.
And the Claimant Claims;
Credit Card Account number xxxxxx, balance of 5,350 as of 30/4/10. Interest under the s69 of the County Court Act 1984 at the rate of 8% a year from the Default Date(s) to 22/8/11 of 562.16 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 1.17 AND Costs.

I don't know if this will have changed since the set aside though.

Cheers.

[SpringerSpaniel]

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

Write asking them to produce the agreements they rely on, and seek an Order from the Court for them to do this, or otherwise for the claim to be struck out if they don't comply with your direct request.

[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.

[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.

[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.

[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

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.

[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

[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.