May thanks for the response, its a bit war and peace unfortuntely. They issued me with a N244 form and a wad of paperwork which was supposedly from years ago. No claims that I acknoweldged the debt at any point. To be honest, it was from 2003 and I had no recollection about the amount they claim. although looking at the agreement it does appear to be my signature.
Name of the Claimant ?
Marlin Europe I Limited
Date of issue – top right hand corner of the claim form – this in order to establish the time line you need to adhere to.
What is the claim for – the reason they have issued the claim? The claimant claims payment of the overdue balance from the defendant(s) under a contract between the defendant(s) and Marks and Spencer Financial Services Plc dated on or about Aug 01 2003 and assigned to the Claimant on Nov 01 2012
Particulars A/C xxxxxxxxxxxx
Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ?
They notified me in May they were looking to take court action. I disputed the debt and asked them to provide a copy of the agreement and payments made prior to them commencing.
What is the value of the claim?
Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account?
When did you enter into the original agreement before or after 2007?
2003 apparently although I have no recollection of the agreement.
Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim.
Were you aware the account had been assigned – did you receive a Notice of Assignment?
No and never recieved anything about this but it has miraculously appeared as part of their defence statement and evidence. No date on it though.
Did you receive a Default Notice from the original creditor?
Not to my knowledge and I have requested this which they have not provided
Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?
Why did you cease payments?
Lost my job
What was the date of your last payment?
18th May 2011
Was there a dispute with the original creditor that remains unresolved?
No dispute as it was so long ago I had no idea
Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan.
Yes and they sold the debt on after i stopped paying the debt management company i used also went out of business and stopped trading in 2004.
The Defence Rectums have entered was;
The claim in this action is for monies outstanding under a loan facility issued pursuant to a credit Agreement. between Marks & Spencer Financial Services Plc and the defendant dated on or about 01 August 2003. The credit agreement was allocated an account number and was regulated by the consumer credit act 1974. Exhibited to this witness statement is a copy of the credit agreement signed by the defendant on 31 July 2003, together with the Terms and Conditions embodied in the credit agreement.
In accordance with its contractual entitlement, Marks & Spencer Financial services Plc assigned its rights and duties under the account to the claimant, Marlin Europe I Ltd. Exhibited to this witness statement at CES2 is a reconstituted copy of the notice of assignement served on the defendant and notice of the same served on the defendant by the original creditor. Also exhibited at CES2 are copies of historic correspondance sent to the defendant including periodic notices of sums in arrears.
Exhibited to this witness statement at CES3 are copies of the statements of transactions showing credits and debits applied tot he account between 02 August 2003 and 13 July 2011.
I confirm I have read the defence filed by the defendant whereby it is alleged that;-
The debt is statute barred
The defendant requestes evidence of a payment made in or around July 2011 and a copy of the original credit agreement.
The defendant states that they have raised a complaint to the financial ombudnsamn
6. I confirm I have checked my case managament system which contemporaneously records all incoming and outgoing telephone calls and correspondance since my firm was instructed on 04 May 2017. This system records that;-
(i) a letter before action dated 05 may 2017 was sent to the defendant in compliance with the practice direction.
(ii) The defendant responded and correspondance was subsequently exchanged with my firm.
(iii) As no resolution was reached, proceedings were issued against the defendant on 19th June 2017 for an outstanding balance of xxxxxx together with a claim fee of £410.00 and fixed costs of £100.00. The proceedings were served on the defendant.
(iv) The particulars of claim contain sufficient information for the defendant to understand what the claim relates to, namely;
a) the date the account was opened
b) the account number
c) the outstanding balance
d) the name of the original creditor; and
e) the fact that the account has been assigned to the claimant.
(v) Since being served with a copy of the defence, my firm has written to the defendant on a number of occasions, including instances whereby my firm provided the defendant with documentation relating to the account and which is exhibited in this witness statement.
7> in my respoctful submission, the defence should not succeed because;-
(i) The defendant does not dispute signing the credit agreement, being provided with a loan or the fact that the loan has not been paid.
(ii) Throughout the lifeime of the account, the defendant would have been sent annual statements of account by the oriignal creditor which would have recorded payments made towards the account and the application of contractual interest charges, as well as confirming the outstanding balance.
(iii) the defendant does not allege that he is still being pursued for this debt by the original creditor and hence there is no sensible reason for the defendant to challenge the assignment of this account
(iv) The information provided to my firm is that the last payment credited to the account was on 13 July 2011 and that a balance of xxxxx remained outstanding at the time my firm were instructed. This has been evidenced in exhibit CES3 and disproves the defendants assertion that this debt is statute barred since legal proceedings were instigated against the defendant within 6 years of said payment.
(v) The credit agreement and evidence of payment made in or around July 2011, as requested by the defence, was supplied to the defendant by way of letter dated 04 July 2017, with the invitation to withdraw his defence. This can be found within the historical correspondance at CES2. The defendant replied that he was still of the opinion that the debt was statute barred and has provided no such reasoning for this belief.
(vi) It is noted that the defendant alleges that he has made a complaint to the financial ombudsman. It is respectfully submitted that my firm has never recieved any evidence of such a complain being raised.
8. I acknowledge that these proceedings have been stayed since July 2017. Following receipt of the defence, my firm made the decision to allow the claim to become stayed automatically so that attempts could be made to obtain account documentation from the original creditor and to try to resolve matters amicably. However as those attempts have been unsuccesful I respofully ask the court to now lift the stay.
9. I also respectfully ask the court to strike out the defence on an ex-parte basis and to enter judgement in accordance with the request attached to this witness statement. I respectfullt ask the court to award those costs on the basis that;
(i) the defendant has been given numerous opportunities to withdraw the defence previosuly filed, but has not done so, and
(ii) the costs sought, are in my respectful submission, reasonable and proportionate.
10. If the court is not minded to deal with this application on an ex-parte basis then I respectfully request that the applciation be listed for a hearing with a time estimate of 40 minutes and that the application be treated as an application;
(i) to lift the stay on these proceedings; and
(ii) to strike out the defence; or
(iii) for sumarry judgement; and
(iv) for an order that the defendant do pay the claimant's costs on a contractual basis, pursuant to CPR 44.5
Thats the witness statement by Rectums but there are so many things in this I do not agree with. I originally pleaded that I have no knowledge of this debt and that it is statute barred as i went back over my account for the time and could find no outgoing payments to original credit, Marlin, cabot or anyone else for that matter. I had been involved in letter tennis with them since May asking for proof of the transactions and a copy of the agreement which did not arrive until almost 3 weeks after they started court proceedings. I also have bank statements and credit reports that clearly show no account nor payments made in or around July however to be safe I have prepared bank transactions from begining of June until the end of July for the court.
The list of transactions they have supplied is a one page document that looks like my 9 year old had put together o excel. Badly pasted M&S Bank logo, the title being for 'creditcard transactions' and then a list of payments with date and amount. no account details etc.
I have been pulling together my witness statement over the past few months as i suspected that it might get to this and am happy to paste it up here. I believe that the debt is statute barred and the surely they have also abused court process if they have started a claim that they admit to not having the required paperwork prior to commencing.
Any help woudl be greatly appreciated, this caused me to have a stress disorder last year with the constant hounding and threats and I'd rather not have to go through that again.