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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 Oct 1, 2014 at 19:13
by   notalawyer
may i know if akuan pengeposan is equivalent to AR, please?
Could be.
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answered on Oct 1, 2014 at 20:41
by   jeff005
@aurora,

We here are all behind you. I believe a lot of us is following closely yr case. We keep mum as most of us has no experience in "fighting" all these affidavits. My malay is very poor also. We also have the GURU assisting you.

Can I ask.. can you remember,
On july 3rd 2014, when u fax to all parties about the complaints to BNM, was one copy sent to the bill collector too. You use yr hse or office address in all your correspondences??

I believe that bill collector played punk with you. Bill collectors for banks works during the day. At night they are also bill collectors for Ah Long's. And their networking group is strong and some are also quite educated. My deceased wife complained that "they" did harress her and follow her car with my school going children inside car. It is intimidation of the dirtiest level. Tat's why i hate them very very much...
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answered on Oct 1, 2014 at 22:02
by   Aurora
Dear Bladirunner

Thank you Sir for your words of encouragement. Having seen how banks and lawyers deal with CC and other household debts speaks volume on why in average 61 malaysians are made bankrupt on daily basis. Abuse of system to meet their ends. How sad. Though my fight seems bleak, i am at point of no return. Ill do my best going forward with the help of @Notalawyer. You take care
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answered on Oct 1, 2014 at 22:15
by   Aurora
Dear @Notalawyer

The afidavit jawapan comes with a bulk of exhibits. One is Perakuan Pengeposan. After going through it - a POSLAJU list filled up by the clerk of the lawyer's firm with my name and mailing address. Once dropped at the post office, the post office officer would stamp received. But there is a note at the bottom that says as follows: -

QUOTE

Catatan:

Perakuan pengeposan ini mengesahkan bahawa barang-barang pos yang dicatatkan telah dimasukkan kedalam peti surat sebagai barang pos biasa dan tidak didaftarkan (the last 2 words are underlined).

UNQUOTE

Ive checked Poslaju website and confirmed perakuan pengeposan is not AR (Surat berdaftar).

To support this perakuan pengeposan, the bank has provided a copy of the credit card's T&C.

On "penyampaian notis", it states that "pihak2 kepada perjanjian ini dengan ini bersetuju bahawa penyampaian apa2 notis dan/atau saman dan penyata tuntutan yang berpunca darpd atau berkaitan dengan saman tersebut melalui pos ke alamat ahli kad yang terakhir yang dinyatakan dalam borang permohonan bank atau alamat lain yang dimaklumkan kepada bank oleh ahli kad dari masa ke semasa akan dianggap telah disampaikan pada masa kiriman notis dan/atau saman dan penyata tuntutan dibuat"

I read in a few cases this point was used by the bank's lawyers to justify their serving of summon via pos biasa and correct me if i am wrong here @Notalawyer, such notice is to be served by AR as provided under the Kaedah2 Mahkamah 2012.
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answered on Oct 1, 2014 at 22:19
by   Aurora
Oh, Mr Bladirunner

I cc my complaint letter to the debt collector's office. One call was made by the collector after i received the summon asking if i have settled my debts with the bank. No further calls after that.
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answered on Oct 1, 2014 at 22:28
by   Aurora
Dear @Notalawyer

In the T&C provided as the exhibit, i found this: -

QUOTE

Penamatan

Tanpa pemberian notis terdahulu, semua wang yang kena dibayar dan terhutang oleh ahli kad disini akan pada opsyen pihak Bank, menjadi serta merta terhutang dan kena dibayar sebaik sahaja yang berikut berlaku:

a. kegagalan ahli kad untuk melaksanakan dan/atau mematuhi mana2 terma2 dan syarat2 disini;

d. Ahli kad gagal membayar mana-mana keterhutangan yang terhutang kepada pihak bank bila kena bayar

UNQUOTE
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answered on Oct 1, 2014 at 22:58
by   jeff005
@aurora

dEAR,

No, i dun believe your case is bleak with notalawyer assistance.

I am really puzzled with why your 6 years Limitation starts this year 2014. If based on your case, it actually disputes what a lot of discussions in this forum is all about on the ACT.

Senario 1.

All the while after you have left the commercial bank DH(dirty harry), the credit card you were not using was never cancelled at all. There is a possibilty someone has continue to used it and managed to upgrade the credit limit and "bust" it in 2008. Well can apply a "new card" and someone sign on it. BTW, i am using my son's credit card for the past 6 years and signed on the new replacement card....

Bank DH waited for 6 yrs before the 6yrs Limit Act is up to commence legal action. They are not in a hurry, you cant run, you are traceable and also in the banking line. Just accumulate more interests only ma.. very profitable.. U r actually a secured creditor.

Senario 2,

On 3rd July 2014, you fax complaints to BNM about DH bill collector and "Threatened to activate the 6 yr L.A." If I am the bill collector, I would bank in a token amount into your c.c. ac and reset the clock. The monies bank in still in DH bank, no loss or costs ma..
This would explain why the 6 yr L.A. starts this year... unless you have banked some yourself accidentally.

If the bill collector has played dirty, let's bring the fight to the next level.. ALL IS NOT LOST OR BLEAK YET.... May the force be with you..... R u going to surrender to frauds made against you..??
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answered on Oct 1, 2014 at 23:16
by   Aurora
Wow Mr Bladirunner. If thats the case, i have another war to fight.
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answered on Oct 2, 2014 at 01:09
by   notalawyer
No. The bank did not state in their affidavit that you made payments recently, so don't worry about that.

Now, please list all the important dates here so everything is clearer.

a. Date Summons was filed.
b. Date printed on Cover Letter of Summons.
c. Date Summons letter claimed to be posted.
d. Date stamped on the envelope by Pos Malaysia
e. Date letter was placed on your letter box.
f. Date you opened and read the summons letter.
g. Date you informed bank lawyer that you are going to file Notice of Appearance.
f. Date you filed Notice of Appearance.
g. Date Judgment in Default was entered.
h. Date you filed Notice of Application to set aside Judgment in Default.
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answered on Oct 2, 2014 at 01:58
by   Aurora
Dear @Notalawyer

Heres the info required:
a. Date Summons was filed -24.07.14
b. Date printed on Cover Letter of Summons - 13.08.14
c. Date Summons letter claimed to be posted - 13.08.14
d. Date stamped on the envelope by Pos Malaysia - 15.08.14
e. Date letter was placed on your letter box - 21.08.14
f. Date you opened and read the summons letter -22.08.14
g. Date you informed bank lawyer that you are going to file Notice of Appearance - 03.09.14
f. Date you filed Notice of Appearance 03.9.14
g. Date Judgment in Default was entered - 08.09.14
h. Date you filed Notice of Application to set aside Judgment in Default -18.09.14
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