Wescot/Nelson Claimform - MBNA (Abbey) credit card debt

[diggy116]

Hi all .

I am new on here but not new to all this as this is covered on another well known site , but i want as many people to see and help me to help others for the future .

 

The story goes ;

In November 2001 i receive a letter from wescot to say they are now collecting my Abbey debt to the tune of £3723.20 .

I agree to pay £50 a month , they agree and off we go .

 

Now and heres the interesting bit , i

n February of this year i receive a County Court Claim to the sum of £623.20 ,

 

i then phone them going mad saying what the hell is this doing on my doorstep ,

they reply stating that despite repeated demands payments are still in arrears ,

 

i tell them that it is not and never has been in arrears in 6 yrs ,

they say it has ,

i say not blah blah blah. (i have never been late other than postal problems )

 

The lady on the phone then says ,(and i have it all recorded ) to complete the dispute bit of the ccc and send it back to us ,

yes US (wescot) on 4 separate occasions she says this ,

i tell her the court want it not them !!.

 

i fill it out and receive the next court step QA ,

in the meantime i send off the CPR request to Wescot , Abbey and Nelson guest

, none of them reply within the time scales ,

but i finally get one off of Abbey with info up until what appears to be April 03 i think ?.

 

Not a thing received from Wescot ,

but in the CPR it reveals they sold the debt from Abbey - Wescott on the 19/05/04 for £3923.20 ??

hold on 30 months and £1500 on and they have sold it for £200 more than stated in 01 hmmmmm .

 

Right On the CPR there are 2 application forms ,

1 is the card i had and was accepted for

and the other 2 months later and that was declined

 

, so deffinately application forms and they are using this as an agreement ,

also it states on an archive form that the last letter sent was on the 09/04/06 so where is the default and letter before action ????.hmmm .

 

So at the mo they have no CCA and have failed on all aspects of procedure and protocol .

 

I then receive a mediation date and i agree ,

the court phone up and after a too and fro wescot offer me that they will drop the fees and go back to the arranged payment ,

i say no thank you Noel NO DEAL i shall see you in court on 12th June .

 

Vexatious Litigant is all i can say bring it on ...

Any advice or comments gratefully received ,

DCA's who do they think they are ?

GOD , i think not .

 

Hi . Does anyone think wescot will turn up at court considering ;

1 ) there is no CCA only an application form with no prescribed terms.

2 ) they failed to comply with any procedure prior to CCC and CPR.

3 ) they say they bought the debt in May 04 when i have been paying them since November 02.

 

Any info or court case study of wescot would be most gratefull as i want them to turn up on the day and have my ooosee 9mm filled with all the ammo i can .

 

Worst case i lose and just pay the money that day so no bad stuff can be filed ....

Best case i win and take them to the laundrette......

 

Regards diggy...:grin:

 

Hi all just need a little advice please.

My court date is 13th June 2008 and it says that all documents that you intend to rely on at the hearing must be submitted 14 days prior .

 

Do i just send them any letters i sent but no need to explain why and what yet , thats on the day ??

 

Thank you and sorry to waffle .........DIGGY

[drob]

Does your Abbey account contain any unfair charges????

[diggy116]

It does but i don't know any info as they have failed in my CPR request to provide any information .....

[2Grumpy]

Do abbey have to reply to cpr if wescot own it now????

 

CPR might only apply to Wescot & their sols.

 

You might have to SAR Abbey to get the information that you want

[drob]

If they have failed to comply with your CPR request then you need to file a defence as soon as possible.

[diggy116]

Hi , i sent a CPR to Wescot , MBNA , Abbey and Nelson and guest (wescots solicitors) ...

only MBNA replied with a load iof stuff with computor no.s and figures on and a signed application form ..

And i am beyond defence stage all that is done , AQs in and local court asigned . we have also had a mediation session were they offered me to drop costs and go back to £50 a month , i declined and said see you on the 13th ....

Any info grately received as i'm going for vexatious litigant here .....

Thanks Diggy ......

 

 

heres my supposed CCA ....

 

I also have another one of these dated December 01, 2 months later but that was declined so deffo an application form ......

 

..

 

Hi , Going through my paperwork and reading up on here about assignment i have come across something else interesting .

As stated previously Wescot started taking payments in Nov 02 - then it stated in another document they bought the debt in may 04 for £200 more than the origional amount - then i find a letter stating assignment (and thats all it is a basic letter ) dated 10/01/06 of the debt amount £1823.20..

Any advice grately received .....

Thanks Diggy...

 

Hi i am reading through various threads and cannot find one that tells me what needs to be in the assignment form , as i feel wescot have never been legally assigned the debt , therefore never been in a position to take money after the date they state they bought the debt ,This coupled with there failure with my CPR request for them leeds me to beleive if i am successfull in court then i shall be requesting all moneys paid back as MBNA own the debt and it is they who i needed to pay .]

The fact that all cheques have been paid by my partner in her name is this enough for me not to have accepted the debt as i have actually never paid them a penny and 'i don't know what she pays' ..

I am just trying to get everything possible together for my day out to the courts and want to be able to take them all the way...

Any any advice will be gratefully received.

Regards Diggy.............

[nicklea]

Hi diggy,

 

When does your defence have to be in to the court or have you submitted it already?

 

You really should put every argument on your defence that you intend to rely on in court, so if you haven't already raised the issue of assignment in your defence then you may have some problems raising it in court.

 

The format of a notice of assignment isn't important - as long as it has the correct date. It may also be ok if there is no date on it. The important thing is that under the Law of Property Act 1925 it has to be delivered by personal service or recorded delivery otherwise it isn't effective and so westcot don't actually own the debt, even though they think that they do.

 

As for getting your money back, it used not to be possible under the old principle that everybody is supposed to know the law, however "mistake of law" is now recognised following recognised in the House of Lords decisions in Kleinwort Benson Ltd v Lincoln City Council [1998] UKHL 38s It has also been held that you could make a claim where the other party had misrepresented the law (westcot saying that the debt had effectively been assigned to them when it hadn't) so ignorance as to the law is no bar to you making a claim for this.

 

It might be helpful if you post up some of your defence and then people can help by commenting constructively on what you've already done.

 

Hope this is helpful

 

ps this is the case for misrepresentation:-

 

Pankhania v Hackney LBC [2002] EWHC 2441 (Ch)

Edited May 18, 2008 by nicklea
see ps

[diggy116]

Hi i have submitted my defense , usual templated letter ;

In the County Court

Claim number

 

 

- Defendant

 

 

 

Defence

 

 

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served .

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet

Build up to proceedings

 

5. The claimant's first contact was via the County Court claim and no default notice was received prior to this.

 

6. I believe this in itself is unreasonable and not in accordance with pre action protocols laid down in the Civil Procedure Rules in that the claimant has failed to take reasonable steps to resolve this dispute before instigating litigation

Failure to enclose documents relied upon in the Particulars of Claim

 

7. Further to the case, on 12/02/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

8. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person

 

9. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)to enforce any security.

 

 

 

10. I note the opening part of section 88(1), which states

 

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form....... The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

11. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) should render it invalid

 

Conclusion

 

12. The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information. In addition I believe the claimant has acted unreasonably in bringing this action and further believe the claimants action should be viewed as vexatious. It is requested that the court strike out this claim as there is no prospect of success in view of the matters pleaded above

 

13. The claimant's case cannot succeed as matters stand. It is averred that the claimant and its representatives have acted unreasonably when dealing with this dispute. The claimant and its representatives have subjected me and my family to a unacceptable level of unwarranted stress and it is averred that such actions amount to harassment and has caused an unacceptable level of distress for my family, especially since they ignored the fact that their document purporting to be a credit agreement failed in its entirety to comply with the CCA 1974

 

14. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

15. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, the is confirmed by case law as well. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

16. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in 2001 the Consumer Credit Act 1974 is the relevant act in this case.

 

17. I also respectfully request that if any information has been registered with any credit reference agencies or third parties by the claimant , that this be disclosed and thereafter duley removed at the courts request

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

 

 

 

 

 

Between

- Claimant

 

and

 

 

I am busy reading all aspects of case studies and others experiences so as to have a greater knowledge of what i am doing .

So all help is grately received as ever , thank you ..

Regards Diggy.............

Edited May 18, 2008 by diggy116

[sillygirl1]

Nice one, all the relevant points have been covered - especially the striking out claim section.

 

Good luck with this, Neslon Guest are basically 'solicitors for hire' and seem only to exist to do Westcots bidding. It's time the Solicitors equivalent got tough with these lot - including Bryan Carter and Buchannan Clark & Wells.

[diggy116]

Hi all , I presume all i have to submit to the courts are case examples of ------- v ======= 14 days prior as i will be relying on these cases in my case to slap out any of wescots bull ****......

Also i have just checked my credit score and it is 900 and on very good , so if they think ( after 5 yrs good behavior ) I'm going to surrender easily they had better think again , roll on June 13th I'm getting exited now and this dose not phase me as i took on the tax man and won and they are so far up their own its unbelievable .

All help always welcome and much appreciated as you can never have too much knowledge....

 

Regards Diggy...........

[nicklea]

Hi Diggy,

 

You should get an order from the court giving you timescales of what has to be disclosed by when.

 

One thing you didn't mention in the defence is about the agreement not containing all the prescribed terms. Without this it is unenforceable - full stop.

 

With a default notice they can rectify that by sending a proper defualt notice in which case an agreement that is otherwise enforceable can be enforced.

 

I just think that referring to the lack of prescribed terms is a stronger defence as they can't do anything about that.

 

regards

 

nicklea

[diggy116]

Thank you thus far , i agree and understand .

The assignment one is goading me , i have just found a letter from wescot that is headed notice of assignment and goes ;

 

We write to give you formal written notice that the above client assigned to wescot the debt of £1823.20 owed by you to the above client under the credit agreement referred to above.

It is essential that alll future payments , correspondence or queries regarding this account be directed to our central recovery office at the address below .

 

The interesting bit is this is dated 10/01/2006 and as we know as stated above the archive reports from MBNA show the debt being sold to wescot 12:26 on the 19/05/2004 i take it SOLD means ASSIGNED

 

Also if you work out the origional debt was for £3723.20 and as i started paying £50 a month on 10/11/02 then that is 38 months until the date of above = £1900 , £3723.20 - £1900 = £1823.20 , SO why does it state they sold this on the 19/05/2004 for £3923.20 sniff sniff whats that smell ...

 

right heres another good one , I received the CCC on the 25/01/2008 for £623.20, so thats 24 months after 10/01/2006 , so again 24 x £50 = £1200 and again £1823.20 - £1200 = £623.20 , excuse me if i'm missing something here WHEN IS THIS OR WHEN EVER WAS THIS BEHIND OR LATE , WESCOT are flamin muppets and i want blood

 

 

This combined with an application form as a CCA they had better turn up at court

 

They also state in thier POC all rights blah blah balh have been assigned to wescot

 

Regards Diggy.......................

[diggy116]

Hi all , just to update .

14 days up on the ' to file all evidence relied on ' so i phoned the court today and asked if they had received wescots information as i had not , she said no nothing at all , so i asked what i as the defendant should do now , she advised me to write to the judge to order wescot to supply the info , I said i shall await tomorrows post and if nothing turns up i shall write that letter to the judge . They better turn up at court i've bought a new shirt !!!!!! lol .....

[diggy116]

Hi all , In court next week and all is running smoothly but i just need a bit of advice on assignment .

I want to have them on the failure to assign the debt properly , but i need to know which route to go down , 1) i have the notice of assignment letter but it is dated wrong ie; they say assigned in 04 but my letter is for 06 and a different amount so legally incorrect or , 2) I deny having received a notice of assignment which has to be sent with proof of postage and the fact it has not been produced thus far by wescot in there POC or the CPR .

Thanks Diggy.......

[jpf104]

diggy116 - Can you give more details. i.e.

 

• What was the original debt (credit card, loan etc)
  
• Who was the original creditor
  
• Who is taking you to court (the OC or Westcot)
  
• What correspondence have you received re the assignment - was the assignment equitable or absolute
  

[diggy116]

Hi sorry i have the Wescot and me , we'll see thread but it always gets quickly lost as its very busy all the time ,

as for the assignment i am not sure but it was shown as assigned on my credit file , just dropped off (6yr old )

The CCA is just an application form and there was no notice of assignment until 06 4 years after they say and 2 years after other forms say sold to wescot for £200 more than otherwise stated its all in that thread,

I want to go for misrepresentation law on this .. So any help with assignment law would be very gratefully received .

kind regards Diggy..........

[maroondevo52]

Hi, Diggy.

 

It would be better for yourself if this thread was added to your other one, people will be able to get the whole story and give advice accordingly.

 

Do you want it moved ?

 

Regards.

 

Scott.

[jpf104]

Ok here goes - If it is Wescot taking you to court - in order for them to sue in their own name the debt must be assigned Absolutely, that is they would have had to buy the entire agreement.

If the court action is being taken by Abbey that’s a different matter.

 

Its important to ascertain how the debt was assigned.

 

If it was Equitably assigned, that is the balance and the right to collect was sold, you must use this in your defence.

If the assignment was absolute then they may have the right to sue in their own name. If this is the case your defence seems (IMHO) good as it stands.

For more on assignment see:

 

 

http://www.consumeractiongroup.co.uk/forum/bailiffs-sheriff-officers/112975-equitable-assignment-how-affect.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/146027-aktiv-capital-no-replies.html

[diggy116]

Hi , and big thanks so far and if you wish you can merge the 2 but i would probably prefare it to be located in here as it is in court on Friday..

 

The story goes , I have received wescots witness statement on Thursday ( i phoned the court to let them know i had received it late and i will prepare mine over the wkend and drop it in by hand on Monday , she said thats fine .) In this is goes on to use the application form with no prescribed terms as a CCA , then it points to a computer archive that a NOA was sent to me on 02/10/02 but on a workscreen copy from mbna it states that mbna sold the debt to wescot on 19/05/2004 , but i have a notice of assignment letter dated 10/01/06 .

Also the debt was for £3723.20 at 02/10/02 but was sold for £3923.20 on the 19/05/04 £200 more , when i queried this nothing was determined but now on a sheet with a payment schedule a payment for £200 by cheque has appeared , I know i didn't pay them £200 (couldn't of afforded it at the time ) ...

As stated previously i'm not after not paying this as its only £300 now but the manner in which weswho have gone about this has really peeeded me so i want blood now and all help will be most grateful thank you..

[I've got no money]

Can I ask what about the actual assignment. Has it been disclosed. What does it say. Unless I am mistaken under the CPR rules on disclosure you are entitled to be provided with a copy of every document referred to in any claim form, statements of case or witness statements etc

[diggy116]

Hi I don't have a clue as Wescot have failed to comply with my CPR request in any way , the only things i received were from MBNA and that consisted of an application form and a load of computer jargon . ( i sent CPR requests to MBNA , WESCOT and NELSON and GUEST there solicitors ) . I informed the court of their failure to supply the information needed , but he is continuing with the hearing and i carn't beleive wescot are going to turn up on Friday with what they have .

What they have in their witness statement is as follows ;

Exhibit 1) . an application form for a CCA with no prescribed terms .

Exhibit 2) . an archive print out highlighting my name and address , number of letters sent = 9 to defendent (prior to May 2006) , date and amount and methods of payments by defendant , total amount paid by defendant = £2300 (up to May 2006 ) , date registered with claiment = 19/09/02 , balance when assigned = £3923.20 .

Exhibit 3) . List of credits and aknowledgments to account .

Exhibit 4) . another archive print out with highlighted , date of claiment notice of assignment letter to defendant 17/09/02 and date of claiments notice of debt collection letter 02/10/02 .

Exhibit 5) . the county court claim form .

Exhibit 6) . a copy of my CPR letter to them ? .

Exhibit 7) . a copy of a letter they sent to me in responce to my CPR , i refer to your letter dated 12 February 2008 regarding the above matter .

I can confirm that Wescot will not take further action or request judgment until we have responded in further detail to your letter .

In the meantime , your account will remain on hold .

 

So all i know is that it was assigned to Wescot 17/09/02 , but sold to Wescot 19/05/2004 and i have an old letter with notice of assignment 10/01/2006 ...

square pegs round holes comes to mind ...

 

Thanks Diggy..

[nicklea]

The noa has to be sent by a registered postal service (eg royal mail recorded delivery or special delivery) under s196(4) Law of Property Act 1925 otherwise it has not been sufficiently served on you and so the assignment is not effective.

 

The whole thing with dates is only important if the noa says that the debt was assigned on a particular date. It doesn't matter what the date of the letter is, it's only important if it says the debt was assigned on xx date or just that the debt has been assigned.

 

If it just says that the debt has been assigned then that is ok. If it said that the debt was assigned on a particular date and that date is different to the date of the actual agreement/deed/document of assignment then it is not effective as it is describing a non existant document.

 

You need to see the actual deed/agreement of assignmen as well

[diggy116]

Hi , i have just noticed on the claim poc it says that under an agreement between mbna and westcot spv limited ( why is it now spv limited ? ) , mbna sold and assigned all rights title and interest , under this credit agreement to wescot spv limited ...

But in there witness statement they say they sent an NOA on the 17/09/02 but in the bumph from mbna it states on numerous occasions that it was sold to wescot on the 19/05/04 , surely NOA and SOLD too , are the same thing ?????

Thanks Diggy...

[jpf104]

Nicklea - Your assuming the assignment was absolute. LOP is only an issue if the rights and duties (absolute) were assigned. If the assignment was equitable the LOP is irrelevant. Check out the threads in my previous post.

 

It is unlikely that they will disclose the detail of the assignement - they will claim sensitive commercial data.

I personally would push under CPR to see an 'edited' (omiting money paid etc) NOA stating the contractual terms under which the debt was assigned. This will prove the status of the assignment. In any event if, which is highly likely, the debt was equitably sold the judge will dismiss the claim on the grounds that an equitable assignee is prevented from suing in their own name unless the OC is a party to the action, or if they are unwilling to do so, cited as co-defendant.

I can't see MBNA being happy with the latter!

[nicklea]

Nicklea - Your assuming the assignment was absolute. LOP is only an issue if the rights and duties (absolute) were assigned. If the assignment was equitable the LOP is irrelevant. Check out the threads in my previous post.

 

Correct, it has to be absolute for wescot to take the op to court in their own name. The op specifically states that it is wescott that is the claimant

 

It is unlikely that they will disclose the detail of the assignement - they will claim sensitive commercial data.

Not necessarily, the actual sums and the accounts listed are often contained in schedules. What is important is the date of any agreement/deed