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Received cert of posting without receiving writ

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asked on Jun 4, 2015 at 05:48
by   alanlkadaniel
Today, i received cert of posting from lawyer firm and request me to attend Kl Magistrate Court.
The firm represents alrahji bank. Since this is my first time of receiving this letter, i searched and found out that once receiving the cert of posting. it will request me to pay total loan amount.
so my questions are:
1. is it possible to pay the pending instead of total amount? as last time the employee of the bank came and asked me to pay the pending and there is 3 months pending. i promised to pay 1 month within 10 days and 1 more month in end of month and i did it as the pending is one month.

2. Must i pay the lawyer fee for the firm that represents the bank?

p.s they did called me many times but i didn't answer for since i'm working and answering call is not allowed as hp is not with me as well until i get off work.

3. i never received the monthly statement from them. the last letter i received from the bank is loan contract.

please help...thanks.

regards,
lee ka
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answered on Jun 5, 2015 at 22:42
by   Daniel
... I tot I just needed to pay the rm8 on Monday or Tuesday  then waiting for attending the court on 11 June 2015.

I put Monday or Tuesday is bcos I might hav meeting on Monday and I need to attend .

Regards,
Daniel
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answered on Jun 5, 2015 at 22:50
by   jeff005
Danger..! Danger..! Your Defence is about to Self Disintegrate.. Last warning..!

Get a friend to do the paying.. Q.E.D.
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answered on Jun 5, 2015 at 23:00
by   Daniel
Is it the only way ??  : (
Any idea ... ?? Please

No way ask for monthly installment ?

Regards ,
Daniel
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answered on Jun 5, 2015 at 23:54
by   jeff005
Daniel,

I do understand the dilenma you are in now. I have given you a blank "what to do next", just fill in the blanks. You have asked for help and notalawyer has offered instructions. Do you expect people to work on a real piece of blank paper?

No way ask for monthly installment ?
You can call the bank now and see what can be done. What I am suspecting is that you may have to go thru this court proceedings and have to bear all costs whether you like it or not,  even an agreement or arragement can be reached. I personally suspect the bank would want a "Commital Order" against you so that you would not default again. Upon default again, the bank can straight away do with other forms of writs with immediate effects without filing court case again. There may be a slight chance that you would be able to continue with the instalments but accompanied by a court order.

This is just personal opinions as I have not gone thru or seen this type of situation before.

However, all being said, there is a lot of of homework to be done by yourself or engage a professional lowyer to do it and pay thru your bleeding nose.

There is no doubts that you have commited acts of defaults..

the employee of the bank came and asked me to pay the pending and there is 3 months pending.
they did called me many times but i didn't answer
We refer to the above matter which come up for case management on xx/xx/xxxx.
Kindly be informed that the case is now fixed for new case management on xx/xx/xxxx

Why didn't you call them back immediately?
There was an earlier case, this is a postponed case, perhaps the bank did postpone it to give you a chance?

There is no urgent need to dwell on what happened and WHODUNIT.. It is the immediate cause of next action that can perhaps give you a new leasehold on this Loan. notalawyer need to know what were all the cases management, all the correspondences in order to give appropriate advices/opinions.

Jeff
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answered on Jun 6, 2015 at 03:05
by   Abu Ammar
Dear Daniel

The fact of the matter is this:

1) The Bank has terminated your agreement and asking for the whole amount plus interest
2) The Bank's next course of action is to sue you for the whole amount and this is already happening.
3) The Bank's lawyers have followed the "normal" procedure in filing the suit while some logistical and technicalities might be opened for questioning on some ethical grounds.

Your wish and arguments:

1) I want to start over and pay as usual. I want the Bank to let me pay the arrears but I will not pay the legal fees as I feel it is not fair as I have not received the demand letter in the first place.

2) I want to go to the court and tell the Magistrate/Registrar to postpone the case so that I can negotiate with the Bank as in (1) above and proceed my life as usual.

I will give you the Bank's perspective on this:

1) This fella has defaulted in his installment payment for more than three months. (Past payment record might come into play here, if all this while prompt payment, probably there is some hope)

2) Due to pressures from management "above" the NPL index has to come down coupled with economic slowdown, prompt action must be taken so letter of demand has been issued.

3) No response to the letter of demand, so the "natural" thing to do is to terminate the agreement and proceed to Summons.

4) Courtesy "site visit" either from the Bank or Debt Collector (I believe it should be from the Bank as the "behaviour" is different) and still no response.

5) The Bank has to report to upper management and Bank Negara every month on the state of their accounts and NPLs. So the above actions demonstrated that something has been done.

6) If the fella (borrower) wants to negotiate, either ask him/her the full arrears of installments and ALL costs and legal fees incurred so far. This has to be communicated to Head Office for approval. If approved then we will withdraw the suit and monitor the account closely.

7) If the does not turn up on 11th June 2015, JID will be awarded and Bankruptcy proceedings will be initiated as he is gainfully employed and Bankruptcy is the best course of action at the moment

8) If he turns up and talk cock, insist on JID and Bankruptcy proceedings will be initiated as he is gainfully employed and is the best course of action at the moment

9) If he turns up prepared by asking for a postponement to "find" a lawyer and later represent himself (due to some advice he got in some legal forum) then no choice but to wait further for next mention date. Maybe he wants to buy time and negotiate as in (1) above. Up to Head Office to decide

10) If he turns up and our lawyer is smart enough, probably ask the borrower to agree to a "consent judgment" where he agreed (since he wants to pay "normal" installment) to record in front of the Registrar/Magistrate that he will pay as in (1) and pay the monthly installment every month WITHOUT FAIL otherwise he is in contempt of the court and can be arrested and has to explain himself why he cannot pay. This is considered "safe" for the Bank and is a "dream come true". Very seldom but it does happen.

11) it is also "safe" to insist to Judgment as soon as possible. At least the fella's "balls" is in our hands. We know we he works and lives.

So after reading this, you would already know who holds the advantage now. Your only "hope" is the MOA that you are filing which has not been paid to at least give you some "fresh air" to breathe and negotiate. Take this matter with utmost urgency. Follow the advise from fellow forumers here on the court procedures. If people on the other side (The Banks and Lawyers) are smart enough and well experienced, it will be GAME OVER for you on the 11th.

Trust me, I have been there. Bank officers are merely intermediaries (even the managers) they can give suggestions and recommendations and they may agree with whatever you want but the ultimate decision is not in their hands or they already have the instruction on the next course of action but as a measure of "politeness", will "humour" you with promises of recommendations. Some are genuine and some are not. It is hard to tell. They are trained to do so (well at least some of them)

You can read about this "technique" at debttalesthebankandyou.blogspot.com/2014/08/part-5-collection-department.html

or in Malay

ceritahutangbankdananda.wordpress.com/2014/07/12/bahagian-5-bahagian-kutipan-hutang/
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answered on Jun 6, 2015 at 04:53
by   Anonymous
Summary

1. daniel's objective:
is it possible to pay the pending instead of total amount?
( im only able to pay monthly installment but not full payment at this moment)

2. Let us analyse:

(a) The content of Letter (Cert. of Posting) that he recieved. As below..

TAKE NOTE that you are required to attend before registrar at kuala lumpur magistrate cournt ,
Tingkat 5 , Sayap kiri, kompleks makhamah kuala lumpur at 9.00a.m on the said date, failing which
judgment in default shall be obtained in your absence.


Should you fail to file your memorandum of appearance within the prescribed period as stated in
the enclosed Writ and attend attend the Court on the date and time stated herein, we have
our client's strict instruction to record judgement in default of appearance against you.

(b)Therefore:

1. Daniel must attend before the registrar. If he fails, he will be adjudged JID. He will then loose his right to pay the loan in his normal installment as in the T&C of his loan. Banks normally will then wants a lumpsum.

2. Daniel must file Memorandum of Appearance. If he fails, he will be adjudged JID. He will then loose his right to pay the loan in his normal installment as in the T&C of his loan. Banks normally will then wants a lumpsum.

(c)Daniel attend courts before the Registrar:

Puan   : Adakah kamu mengaku salah pada writ tuntutan ini.
Daniel : Tidak mengaku salah, Puan.
Puan   : Ok, kamu file kan Pembelaan.
Daniel : Saya perlu mencari peguam dulu, Puan.
Puan:  : Ok, saya beri kamu 3 minggu untuk kamu cari peguam sehingga xx/07/2015
           ( although Daniel knows he willl not find one..)

Session for the first day in courts ends.

** Assuming on his second court appearance he will then says he cannot find lawyer and all sort of craps, that he get another 14 days to
submit his Pembelaan.

(d)What will his defence point be?
Daniel says it..

1. i feel unfair as they never mentioned it to me.
2. i feel unfair as no letter i received except cert of posting on 3 June 2015

1. What does daniel means by '' they never mentioned it to me '' ?
2. He has some points of argument here.

So daniel has to starts to practise drafting his defence from this points.

(e) Does this point of defence strong enough to let him through.. is there other points?

He is not sure and have no idea. Therefore he  needs advice and help from fellow Forumers.
Willing Forumers normally oblige to genuine request. To find the points the Forumers will wants to know
What exactly is the Plaintif's Claim against daniel.

Daniel must also oblige by posting the Statement of Claim.

Is it So ?...
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answered on Jun 6, 2015 at 06:14
by   jeff005
Hahahaa...
Oooh..
daniel boy..
i am really jealous..
first time the whip has written so much..
so near yet so far..
n the kettle has called the pot blackie..

Oooh dannnny boy.. the pipes.. the pipes are blowing..
from waves to waves..
and down to pulau ketami..

OMG.. OMG.. OMG..!!
Goodnite..
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answered on Jun 6, 2015 at 14:09
by   Daniel
Morning. I would like to Thanks Jeff , Abu ammar ,ol'man, runner who have guided me.

Dear Jeff , you are right . This is the dilemma I having now. I would like to defend myself on 11 June 2015 since I'm still able to make the payment and clear all the outstanding but not full payment and request for back to monthly installment. I have no choice but to pay the cost that I have incurred if it is compulsory.

at 1st, I did answer the phone from the beginning n I did pay them but then I request them for monthly statement and they never sent me.i know the calling is from Head office and branch. But since I continue make payment and receive no letter so I just ignore them until I received the cert of posting. Last call is from head office which calling me after I paid 1 month installment within 10days after meeting the office who came to find me. The office ppl asked me for next payment, so I told him/her that I will pay and I did it.

Dear Encik Abu Ammar . Thanks for giving me perspectives of bank . It really helps me a lot on know what bank or lawyer can and would do . So to avoid game over on my case , I just asking for postpostment on 11 June and only ask for appeal after that . ( I would like to appeal for back to normal installment). Can the appeal be made on 11 June while asking for postponement to "find a lawyer".  Your reply has given me a lot of fresh air and made me able to sleep well without insomnia .

Dear ol'man . Thanks for the summary and analysis! Really appreciate it . You totally read my mind. I'll post the statements of claims .

Regards,
Daniel
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answered on Jun 6, 2015 at 14:59
by   Abu Ammar
Dear Daniel

During the mention date, just follow the script as given by ol'man. Nothing else. Don't be too overly "peramah". After you get your postponement, go the the Bank's Head Office if possible to appeal your case. Write a formal letter. Draft one and post it here. Don't appeal to the court.
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answered on Jun 6, 2015 at 15:01
by   jeff005
Dear Daniel

You are one very lucky guy.
4 old age MEN posted on your dilenma.
Why..??
Because very likely all felt sad for you.
Your case can be salvaged with proper guidance.
You have been cooperative and updated ALL periodically and that is a *plus*.

Can the appeal be made on 11 June while asking for postponement to "find a lawyer".
Perhaps you can rephrase the word "appeal"..
Not appeal but you would like to be given time to present your case properly as time is to short and you may need the services of your lawyer to present it. The Registrar/Magistrate will sure allow it as this is your first case managment and it is your legal right to request. Please do not argue to the mode of service yet. This is what Abu Ammar is also refering to.. talking cock.. what are you going to say next if the lowyer present proof of posting and then push for immediate Judgement? Your purpose is not to throw out this Writ but to be able to continue with the instalments, so you have to be tactful. notalaywer will teach you what to say on that morning.

After postponement, your real work has to start.
Show proof of your capability to continue with the instalments till the term is over,
with:-
1/ Proof of employment, contract appointment letter, EPF current balance, payslips etc.
2/ A simplified I&E (Income and Expenditure) Statement
3/ An official statement of how your current default comes about... and the commitment not to default again..
4/ Bring Cash of up to the 3/4/5 months defaulted instalments to show proof of commitment to make good your PL again. Maybe tender it as "exhibits" to the court as "evidence"... Can say borrowed from frenzs and relatives.

Armed with proper documentation I see no problems that your application will be considered and approved.

No worry, the costs of the whole proceedings may not exceed RM800 as there is no "contesting". Again this is personal estimate. What you may have to, is stack up is the 3/4/5 months "default" amount.
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