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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 30, 2014 at 23:10
by   notalawyer
I was informed by the lawyer that we would be replying each other's affidavit.
I don't understand...
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answered on Sep 30, 2014 at 23:18
by   Aurora
She presumed I would reply to their afidavit jawapan. I will ask for 14 days to peruse the afidavit and reply, if i decided to do so.

Can i request as follow @Notalawyer:

Yang arif, Defendan memohon tempoh 14 hari untuk meneliti afidavit jawapan plaintif.
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answered on Oct 1, 2014 at 02:11
by   notalawyer
Yang Arif, Defendan memohon tempoh 14 hari untuk meneliti afidavit jawapan plaintif.

Can. 
Normally only High Court Judge or higher is called Yang Arif, Magistrates, Sessions Court Judges and Senior Assistant Registrars are called Tuan or Puan.

Good Luck.
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answered on Oct 1, 2014 at 03:37
by   jeff005
@Aurora..

Best Wishes and Lots of Good Luck..
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answered on Oct 1, 2014 at 15:01
by   Aurora
Dear @Notalawyer, Bladirunner

It ended in 5 mins. Sigh

heres my deadline:

1. Ive received the afidavit jawapan by hand today. I have until 15.10 to file my reply
2. I need to submit my defence statement (hard copy) on 27.10
3. To appear in court for decision will be on 11.11

I will post here their afidavit jawapan.

Thank you @Notalawyer and Bladirunner
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answered on Oct 1, 2014 at 15:27
by   Aurora
2. Not defence statememt but written submission.

Now i have lots of butterflies in my tummy. Is the process mentioned in my case normal @Notalawyer?
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answered on Oct 1, 2014 at 15:53
by   notalawyer
Is the process mentioned in my case normal?
Yes, normal.

Although you may feel that you are quite smart now in law, the truth is,
you still have almost zero experience in court.
This is why you should post your documents here for checking before filing.
As it is now, you are at a disadvantage as your affidavit is not in sync with your Notis of Application.

Post the bank's affidavit here for checking.
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answered on Oct 1, 2014 at 17:11
by   Aurora
Dear @Notalawyer, frankly i do feel ####ty after each step i took in this matter so far.

Heres the extract from their plaintif jawapan:

4. Meruju kepada perenggan 4 dn 5 sfidavit sokongan defendan dan setelah dinasihati oleh peguamcara plaintof, kami sesungguhnya menyatakan bahawa:
4.1 Writ saman dan pnyata tuntutan bertarikh bb.cc.dd telah diserahkan kepada defendan pada perakuan pengeposan bertarikh 13.08.14

Sesaljnan afidavit penyampaian yang diikrarkan oleh sss pada 22.08.2014 dilampirkan disini dan ditandakan sebagai eksibit X

4.2 Kami seaungguhnya percaya bahawa proses penghantaran writ saman dan penyata tuntutan terhadap plaintof adalah sah dan sempurna seperti yang tercatat di dalam Klausa 21.8 perjanjian kad ahli

Sesalinan perjanjian kad ahli dilampirkan disni dan ditanda sebagai eksibit Y

4.3 kami sesunguhnya percaya bahawa penyampaian writ saman dan penyata tuntutan tersebut adalah sah, semourna dan teratur sebagaimana yang diperuntukkan di bawah aturan 10 kawdah 3 kaedah kaedah mahkamah 2012 dan tiada sebarang kelewatan dalam penyampaian writ saman dan penyata tuntutan

5. Kami seteruanya menafikan dengan kononnya penyataan defendan di perenggan 6 afidavit sokongan defendan dan setelah dinasihati oleh peguamcara plaintif, kami menyatakan seperti berikut:

5.1 Notis kehadiran adalah bukan terdiri daripada kertas kausa yang wajib dilampirkan bersama sama writ saman dan penyata tuntutan tersebut. Kami percaya bahawa writ saman dan penyata tuntutan tersebut adalah sempurna dan tidak cacat seperti yang termaktub dalam kaedah kaedah mahkamah 2012

5.2 kami percaya bahawa peguamcara plaintif tidak pernah menerima sebarang faksimili berkenaan dengan kehadiran yang telah dimasuki oleh defendan pada 03.09.14 dan kami meletakkan beban pembuktian yang ketat terhadap kenyataan defendan.

5.3 kami sesungguhnya percaya bahawa serahan writ saman dan penyata tuntutan tersebut adalah sah sempurna dan teratur berikutan defendan telah gagal memasukkan kehadiran dalam tempoh masa yang telah ditetapkan dimana kehadiran tersebut hanya dimasukkan defendan pada 03.09.14 yang mana sudah melebihi tempoh 14 hari drpd tarikh penyerahan writ saman dan penyata tuntutan

6. Merujuk kepada perenggan 7 afidavit sokongan tersebut, setelah dinasihati peguamcara plaintif, kami menegaskan seperti berikut:

6.1 atas kegagalan defendan memasukkan kehadiran dalam tempoh 14 hari yang telah ditetapkan maka satu penghakiman ingkar kehadiran telah direkodkan terhadap defendan

6.2 kami percaya bahawa penghakiman ingkar kehadiran yang direkodkan pada 08.09.14 terhadap defendan adalah sah sempurna dan teratur

7 Perenggan 8 dan 9 afidavit sokongan defendan dinafikan dengan keras dan kami menegaskan bahawa penghakiman yang direkodkan terhadap defendan di sini asalah sah sempurna dan teratur dan kami menyatakan seperti berikut:

7.1 tindakan plaintif adalah tidak dihalang oleh had masa

7.2 had masa berbangkit adalah apabila notis penamatan bertarikh 07.07.14 diserahkan kepada defendan.

Sesalinan surat penamatan dan perakuan pengeposan bertarikh 07.07.14 dilampirkan secara kolektif disini dan ditanda sebagai eksibit Z

7.3 had masa bukan berbangkit daripada tarikh pembayarn akhir yang dinyatakan oleh defwndan dalam afidavit sokongan

8. Setelah dinaaihati peguamcara plaintif, kami sesungguhnya percaya bahawa defendan tidak mempunyai pembelaan bermerit terhadap tuntutan yang difailkan oleh defendan disini.

9. Oleh hal yang demikian kami memohon agar permohonan defendan ini ditolak dengan kos
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answered on Oct 1, 2014 at 18:57
by   notalawyer
Ok.
You need to go to the bank and take a Credit Card application form where there is a "Terms and Conditions" at the back.
If you can't find the form, ask for it from the bank. ( say you want to apply for credit card )

The bank says in their affidavit that the 6 year time limitation starts only this year.
We need to get proof that the credit card will be cancelled a few months after you stop paying and you are required to pay the full outstanding after that.
This will be the proof that the 6 year limitation starts a few months after you stop paying.

You need to work hard and fast.  Do not delay.
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answered on Oct 1, 2014 at 19:09
by   Aurora
Thank you @Notalawyer. I was thinking of doing the same thing too

may i know if akuan pengeposan is equivalent to AR, please?
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