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How to self-represent in Court and fight my credit card debt case

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asked on Sep 5, 2014 at 18:11
by   Aurora
edited on Dec 19, 2016 at 05:31
 
I will appear for a case management next Monday for my credit card debt now amounting above RM30,000 by a commercial bank.

For information, I was the employee to the said commercial bank until I left in June 2004. At that point of time, I had my BBA and credit card debts under their book. My ex-employer managed to liaise with me at my current employer's office and I managed to restructure my BBA with my ex-employer and have been promptly serviced my monthly installment.

However, I did not get in contact with my ex-employer with regards to my credit card, which I had stopped using since 2003 and due my ignorant, I didn't keep track of how much was outstanding under the said card (my limit was RM5,000 if am not mistaken). No correspondence was received from my ex-employer on the said debt until they sent in a debt collector to call me at my current workplace back in 2008. I told the collector that I wanted to deal directly with the bank and managed to speak to a lady bank officer. As I didn't have the information on the outstanding debt at my point of leaving in June 2004, I asked for my credit card statement as I was told my current outstanding at that point of time in 2008 was more than RM20,000. No statement was given and I asked the officer if the bank would consider converting my credit card debt into a term loan so I could settle off progressively within my limit of financial capacity. However, she called to inform that they didn't do that. No call or any letter was issued (to my knowledge) after that.

In late May 2014, I received a system-generated letter from the bank saying that they have appointed the same debt collector and on 3 July 2014, a despatch from the said collector's firm came to my officer handing me a notice from the collector's solicitor that they will take necessary recovery actions against me. I told the despatch that this is wrong and I refused to accept it. He then gave me a note scribbled with the name of the officer in the collector's office with his contact no. I was fuming mad. Later that day, while I was away from my desk at work, the said officer from the collector's office called my extension and it was tapped by my colleague. He started to rant and accused my colleague of lying when my colleague told him that she just tapped my line. My terrified colleague told me her ordeal and I wrote a complaint letter to the bank and carbon copied to Bank Negara Malaysia (BNM), the debt collector and all other relevant agencies, stating that I would only deal with the Bank, requested for bank statement on the card and informed them that I would not hesitate to lodge a police report if continued harassment being made by their debt collector. I also stated that I am willing to challenge them in court under Section 6(1) of the Limitation Act. The said letter was emailed and faxed to respective parties on the same day.

No calls or letters were made pursuant to that incident until I received, on 5 August 2014, a letter of recall/termination from the Bank’s lawyer dated 7 July 2014 stating that I need to settle within 7 days from the date of the said letter failing which they have the bank’s instruction to take legal proceedings against me. Subsequently, I received on 15 August 2014 a letter from the Bank dated 9 July 2014 responding to my complaint in July 2014. They informed me that the statement was sent promptly to my old office address (a branch of that bank). I was to inform them of any change in mailing address. They also informed me that they are looking seriously at the harassment allegation against their collector and asked me to provide the details of my colleague for their investigation. They mentioned that it is their right to appoint any agent to collect the sums due and that I may discuss with their collector on the settlement proposal whenever the collector contact of visit me.  They have also stated that I have breached Banking and Financial Institutions Act (BAFIA) due my suspended payments with them (my current employer is not governed by BAFIA by the way). Sadly, such delay has jeopardized my remedial chances as no proper and timely notification has been made by them both before they could take any legal actions against me. I responded their letter on 15 August 2014 and faxed to them on the same date.

On 22 August 2014, I received a letter from their lawyer dated 13 August 2014, extending their filed writ of summons and statement of claims dated 24 July 2014. I am required to attend a case management on 8 September 2014 failing which a Judgment in default would be issued. A few days later, someone from the collector’s called me up and I informed her of my intention to be in court on the stipulated date. As I want to self-represent, I have filed a Memo of Appearance with the said Court.

People feel that I should just go and settle the debt. I wanted too before this but how am I to settle if I cannot get another loan with this record and I have before proposed for progressive repayment. Now that I am that this juncture of no return, I would like to seek a sound opinion from Lawyerment on how to prepare for this case.

Thanking all in advance!
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answered on Sep 10, 2014 at 22:28
by   jeff005
@notalawyer

Thks.. U are also educating a lot us here..
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answered on Sep 11, 2014 at 17:09
by   notalawyer
untuk suatu perintah dibawah Aturan 29, Kaedah 14, Kaedah-Kaedah Mahkamah Rendah 1980

With the new Court Rules book, it should now be

dibawah Aturan 42, Kaedah 13, Kaedah-Kaedah Mahkamah 2012.
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answered on Sep 12, 2014 at 21:17
by   notalawyer
Use this improved Notice of Application below.

DALAM MAHKAMAH MAJISTRET DI KUALA LUMPUR
DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA

GUAMAN NO : ................ TAHUN 2014
ANTARA
XXXXXXXXXXXXX .. PLAINTIF
DAN
YYYYYYYYYYYYYY (No. K/P: ZZZZZZZZZZZZZZZZ) .. DEFENDAN

NOTIS PERMOHONAN
(Permohonan Defendan untuk Mengenepikan Penghakiman Ingkar Kehadiran)

Benarkan semua pihak hadir di hadapan Hakim (atau Pendaftar) dalam kamar (atau Mahkamah terbuka)
pada ………………..2014, pukul ………. am/pm bagi pendengaran permohonan Defendan untuk suatu perintah dibawah Aturan 42, Kaedah 13, Kaedah-Kaedah Mahkamah 2012 untuk mengenepikan Penghakiman Ingkar Kehadiran dengan kos dibayar oleh Plaintif.

Alasan–alasan untuk permohonan ini adalah seperti berikut:-
1. Plaintif telah lewat menghantar Writ Saman dan Kenyataan Tuntutan kepada Defendan.
2. Defendan tidak diberi tempoh 14 hari dari tarikh penerimaan Writ Saman untuk memasukkan kehadiran.
3. Writ Saman yang diposkan kepada Defendan adalah cacat kerana tiada Notis Kehadiran dilampirkan.
4. Hutang yang dituntut Plaintif telah lupus had masanya di bawah Seksyen 6(1) Akta Had Masa 1953.
5. Plaintif telah dimaklumkan dan berpengetahuan tentang kemasukan kehadiran Defendan di Mahkamah, tetapi masih tetap menfailkan Perintah Ingkar Kehadiran.
6. Plaintif cuba mencuri langkah (steal a march) terhadap defendan dengan mengirimkan Writ Saman lambat dan kemudiannya memasukkan Perintah Ingkar Kehadiran.
7. Alasan-alasan lain seperti yang dinyatakan dalam Afidavit Sokongan.

Bertarikh pada: ................................... 2014

…………………………………
Pendaftar
MAHKAMAH MAJISTRET MALAYA
KUALA LUMPUR

Notis Permohonan ini difailkan oleh Defendan yang beralamat di:-
Nama: YYYYYYYYYYYYYY
Alamat: AAAAAAAAAAAAAAAAAAA
Telefon: BBBBBBBBBBBBBBBBBBBBBBB
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answered on Sep 12, 2014 at 21:18
by   notalawyer
Your afidavit sokongan is still not good enough.
You need to improve it further.
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answered on Sep 15, 2014 at 17:32
by   Aurora
Thank you @Notalawyer

Was about to make a move to the court for filing when i decided to check on this thread. Phew. Will do so and post it here. Kind regards
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answered on Sep 19, 2014 at 15:51
by   Aurora
Dear @Notalawyer

Ive filed my NP yesterday and have extracted it from efiling this morning. Ill PosLaju it to the Plaintiff's solicitors this afternoon.

And yes, the date has been fixed on 01.10.2014 to appear in court.

My Afidavit sokongan is as follows: -

1. Pada 22 Ogos 2014, saya telah menerima surat saman menyuruh saya memasukkan kehadiran dan hadir di mahkamah pada 8 September 2014, melalui surat peguamcara Plaintif bertarikh 13 Ogos 2014 (“Eksibit D1”).

2. Saya amat terkejut kerana surat saman ini hanya dihantar melalui pos biasa, selepas 20 hari ianya difailkan di mahkamah pada 24 Julai 2014.

3. Saya mendapati Writ Saman yang diposkan adalah cacat kerana tiada Notis Kehadiran dilampirkan. Walaubagaimanapun, saya telah memasukkan kehadiran di mahkamah pada 3 September 2014 (“Eksibit D2”) dan seterusnya memaklumkan peguam Plaintif melalui faksimili pada hari yang sama.

4. Pada 8 September 2014, saya telah hadir di mahkamah namun sekali lagi telah dikejutkan dengan tindakan Plaintif memasukkan Perintah Ingkar Kehadiran pada hari tersebut.

5. Saya juga berasa teraniaya kerana writ saman hanya difailkan ke atas saya selepas tamat tempoh tindakan oleh Plaintif, di bawah Seksyen 6(1) Akta Had Masa 1953, dari tarikh terakhir saya membuat pembayaran pada Jun 2004.

6. Oleh kerana Penghakiman dimasukkan tanpa mengikut proses undang-undang yang digunapakai walaupun tuntutan hutang dibuat selepas lupus had masa tindakan, hak-hak saya untuk membela diri dalam proses Mahkamah yang adil telah terhakis dan terprejudis.

7. Dengan ini, saya dengan rendah diri memohon Penghakiman Ingkar tersebut diketepikan dengan kos.

It took me longer than i thought to finalise my AS as i went from very emotional to very harsh instead of sticking to the facts. I know it is not good enough but i went ahead and file it yesterday.
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answered on Sep 19, 2014 at 15:52
by   Aurora
Thank you for your kind assistance.

I will go thru lawyerment forum and william chan's book to prepare myself for the court.

Wish me luck!
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answered on Sep 19, 2014 at 19:50
by   Bladirunner
Darl....

Best Wishes and Good Luck..
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answered on Sep 19, 2014 at 21:15
by   notalawyer
You should post your affidavit here for checking before filing it.
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answered on Sep 19, 2014 at 22:12
by   Aurora
Dear @Notalawyer
It's been filed and i actually feel bad now. Any advice?
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