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

[diggy116]

Hi , well i'm in court tomorrow .

Received a statement of costs yesterday from Nelson guest. , amounting to £651.00.

Sent my witness statement in , basically quoting case law of CCA and its legality , property act and misrepresentation case law and basically asking for wescot to have strict proof of any of their allegations .

In their statement they said no default notice is available because they deemed it unnecessary to keep the documentation on file , i pointed out in mine it is within 6 years and all records should be kept.

So they have no real CCA , No default notice , No assignment notice thus far.

 

This is my opening statement and obviously further exhibits of case law .

 

Ref

 

 

Claim number

 

IN THE COUNTY COURT

BETWEEN

Wescot SPV Limited claimant

 

AND

 

defendant

 

WITNESS STATEMENT

 

 

I , , will say as follows:-

 

 

1 I am the defendant, and i am not litigant in person

2 I have had very limited access to any documentation relied on for defence

3 In support of my defence I enclose the following

Exhibit 1 – case law relating to the requirements of a CCA and its legality

Exhibit 2 – case law relating to default notice

Exhibit 3 - Documentation relating to the strict proof to the claim of assignment

Exhibit 4 – a copy of the CPR letter dated 12 February 2008-06-08

 

 

 

 

 

 

Defendant’s response to the issues raised by the claimant

4 the failure in its entirety to comply to the defendants CPR dated 12/02/2008

5 The statement of truth previously submitted neither admit nor deny the allegation

6 The defendants claim in his statement of truth that the claimants first contact was via a county court claim related to the first knowledge there was a problem as no notification or default letter was ever received prior to the County Court Claim.

7 The defendant requires the claimant to provide proof of postage of all documentation in relation to compliance with the CPR as nothing was ever received and restricted me in my defence.

8 The defendant requires the Claimant to show strict proof of any properly executed default notification as these records should be available as it falls within the 6 year limitation act and under CPR requirements , non compliance should render this claim invalid .

9 During mediation the mediator stressed that no information regarding the mediation will be submitted to the judge as this would be frowned upon.

10 The defendant believes the claimant has acted totally unreasonable from failure to provide a true signed copy of a properly executed CCA , the total failure to comply with a CPR and the question of legality of assignment as to whether the claimant should have ever taken any payments in regard to the alleged debt.

11 On the facts presented , I ask that the court make a fair and just decision .

 

Statement of truth

I believe the facts stated in this witness statement to be true

..................................................................... dated.............................

[jpf104]

Just a quick thought - Have you checked what type of credit licence Wescot have got?

If its anything other than full (all sections) please post.

[jpf104]

How are you getting on?

 

Had an e-mail from the OFT today - this might be of use to you -

 

re Wescot SPV

I refer to your enquiry and can confirm that the above business has a consumer credit licence, the number is 580125 with an expiry date of 19/01/2011. The business categories are stated below:

 

Categories:

Credit brokerage

Credit reference agency

Debt Adjusting/Counselling

Debt collecting

 

It would apear that Wescot do not have a licence to offer credit. This means that the debt was almost certainly assigned equitably - IMHO. I also believe that this prevents them from taking you to court as they cannot offer credit. The only way they can enforce (via the court) if they bought the entire agreement - this would mean they would have to become the credit provider - which they are not licenced to do!. Some food for thought?

[diggy116]

Hi and thanks for all the help , i have been peeeeed off since the court date on 13th June and stacked out with work so only just getting back with things .

Went to court on said date armed with all my defense info , wescots bod turned up and said come into this room and she offered me a tomlin order , I said no way am i signing that , we'll see what the district judge has to say on this .

Go into room wescots bod says blah blah blah , I say blah blah blah then bring up non executable CCA , no default notice , property act no assignment letter .

He (the so called judge ) then goes on to say arh yes there seems to have been a default notice , hmmm the CCA , whats this property act , i start to say failure of cprequest she then says i have a tomlin order for £300 and drop all costs and fees , the judge then says ooooo! Mr .... if i was you i would take that offer as its the best you can do , I panic a bit start losing the plot of things and agree .Arghhhh.She (wescot bod) then had to go photocopy documents so i went with her and after this was done she said to the usher to take her back up to see him (judge) , what for ? lunch !!! hmmm

When i get home i start thinking and boiling but then since the CCC and the account was put on hold i continued to pay £50 a month and made 5 payments so yesterday i called on skype and said i was recording , but once i gave my DM reference they transfered me to the man in charge i said i would like to pay my £50 to finalize the tomlin order as i had already made 5 previous payments since the account was put on hold . He then said he doesn't give me permission to record this call and was not going to talk until i stopped recording (yer right ) I said why what you got to hide , he said blah blah blah stop recording .

I then hung up and phoned again this time chose the payment department informed her i was recording , and said i want to pay £50 she said ok and the transaction was done , i then said can you confirm 5 payments since 22/02/08 CCC she said yes and gave me the dates i said thank you and hung up.

I am annoyed with the judge and myself but in the end they wanted £623.20 plus £130 fees and £740 costs ,So £300 was acceptable , But am i right in thinking as the debt was put on hold upon CCC i can use the amounts credited since then against the tomlin as there is no mention of these amounts in the signed documents ......

THE JUDGE HAD ALL THE NON COMPLIANT INFORMATION IN WRITING IN FRONT OF HIM , ALL HE DID WAS PULL MY PROPERTY ACT PRINTOUT TO BITS .

BUT I STILL WANT BLOOD AND AM SENDING A CCA FOR THE OTHER ONE THIS WEEK

KINDEST REGARDS DIGGY

[jpf104]

Er I am I missing somthing here? what the hell were wescot taking you to court for? they couldn't - they were not the OC and could never be.

Was a judgment made against you?

Did you agree to the tomlin order??

How was all this left?

Property act?? what was this?

 

sorry but wescot had no case they couldn't have - unless I am missing somthing - which I don't think i am.

Perhaps you could fill me in.

[diggy116]

This is what i thought and went in all guns blazing and came out dazed as to why the judge just took her side and advised i accept tomlin order .

There was NO judgment .

I left the building well peeed ..

In my defense i presented an unenforceable CCA , No default notice ( out of interest i have no default recorded on experian should this of been on there if i had had one ).

The property act was just in relation to the assignment compliance.

I got the impression the judge and Wescot bod knew each other he didn't take any of my defense in to consideration and just made a point of saying i put not litigant instead of litigant in law and said what is the point of the first page of a 50 page document , NO mention of the CCA , a mumble of "there appears to have been a default notice" .

I basically bottled it in there out of fear he was going to give me a ccj the way he was going on....and signed the tomlin.

Everyday i get more wound up about 'the judge' i had it all in hand with a very strong defense (let alone it should not of actually been in court ) started well then he just said i advice you take the tomlin ????????.

Can i report all this to the OFT or other body as it's starting to really bug me , especially as i spoke to a big wig at wescot and he refused to discuss anything .....

regards Diggy...

[nicklea]

Hi diggy,

 

I'm sorry to hear about what happened. It can be very intimidating being in front of a judge.

 

THE JUDGE HAD ALL THE NON COMPLIANT INFORMATION IN WRITING IN FRONT OF HIM , ALL HE DID WAS PULL MY PROPERTY ACT PRINTOUT TO BITS

 

Can I ask, in what way did he pull the printout apart?

 

The relevant parts are s136 and s196 - are those the one's that you printed out?

 

You said that he had all the information about the cca in front of him. You didn't mention anything in your defence about the prescribed terms - did you raise this with him when you spoke?

 

 

Er I am I missing somthing here? what the hell were wescot taking you to court for? they couldn't - they were not the OC and could never be.

 

They told the court that the debt was assigned to them - and the court believed them that it was done properly.

 

He (the so called judge ) then goes on to say ... whats this property act

 

Not all judges are going to know all of the laws inside out. So, at times, you will need to quote the exact section and sub-section of the relevant act and even, sometimes, spell out in simple langauage what it actually means.

 

 

Was a judgment made against you?

Did you agree to the tomlin order??

How was all this left?

 

By the sound of it, he did agree to a tomlin order so he wouldn't have had a judgement against him

 

 

Property act?? what was this?

 

law of property act 1925 - this is the act that allows debts to be assigned

 

sorry but wescot had no case they couldn't have - unless I am missing somthing - which I don't think i am.

Perhaps you could fill me in.

 

This is true, but if you read what diggy wrote:-

 

I panic a bit start losing the plot of things and agree

 

Your case also depends on how well you present it to the judge on the day. It can be very difficult when the judge seems just to be talking to the other side because they are a solicitor and you're not (believe me - I've been there and experienced it).

 

The major point in diggy's defence was that the agreement did not contain the prescribed terms and so it was not enforceable. Unfortunately, he didn't include this in his defence:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/144432-wescot-me-well-see.html#post1528611

 

Also, the assignment wasn't effective, but he also didn't include that in his defence.

 

BUT I STILL WANT BLOOD AND AM SENDING A CCA FOR THE OTHER ONE THIS WEEK

 

I'm sure that you will feel less pressured next time - it's always so difficult the first time you do this.

 

 

regards

 

nicklea

[I've got no money]

Yes - some Judges' can be a bit like like that - they see something they think is in your favour - a Tomlin Order - and twist your arm to persuade you to accept it. Don't forget it means that they don't have to make a decision that way...

 

The Advocate for Westcot would have been an agent (someone from a local solicitors firm who had been instructed purely to put forward what Wescot wanted saying). They would be someone who regularly appeared in court so in that sense the judge may have known them as the regularly appeared in front of him.

 

The problem now of course is that you consented to a Stay. Does the Tomlin Order say that if you default that they get a judgment or does it say if you default it gets reinstated.

[jpf104]

This is very poor - here's how I see it:

 

1. Wescot had no legal right to sue
   
2. Their threats of £750 costs were false - if the claim was not on fast track
   
3. Wescots knew this thats why the Tomlin order was offerred
   
4. The points regarding the unenforceable CCA albeit true were not the way to go here
   
5. The key defence here was Wescots legal right to sue - they had none.
   

For future reference the point about assignment (if anybody else finds themselves in this position) is to absolutely clear about the legal rights of the assignee. If it had been me I'd have had the case struck out as Wescot had no right to bring the case in the first place. I'd have not argued any points about unenforceability unless the Judge did not understand the LOP, various House of Lords rulings and several tons of case law.

The tactic used by Wescot here is to intimidate the defendant by making him believe that there was a case to answer, when there clearly was not and to suggest if the judgement was issued he would have been landed with huge costs.

Court appearances of this type are all about persuasion its the defendants job to ensure that the ‘right’ argument is pursued. Sadly on the day the focus was on the agreement and not on the assignmnet - a big mistake IMHO.

[diggy116]

Hi guys i know i let myself down by not being strong enough on the day but as stated i will definitely know better for the next .

 

The Tomlin is as :-

 

IT IS ORDERED THAT

 

1. Judgment , or any orderer direction , against the defendant shall not be requested without permission from the court

2. All further proceedings in this claim be stayed (wescot did put set aside but the judge made them change it to stayed )except for the purpose of carrying the terms of the schedule into effect.

3. Both parties will bear their own costs.

4. Liberty to apply

 

SCHEDULE TO TOMLIN ORDER

 

1. the defendant to pay the claimant the sum of £300, to be paid as follows.

2. A sum of no less than £50 per month , to be credited by the last date of each month for the duration of 6 months.

3. Payments are to be maintained by the defendant until the sum referred to at paragraph 1 above , is paid in its entirety.

4. upon payment of the total sums reffered to at paragraph 1 above the defendant is discharged from any further liability in respect of the claimants claim in this action.

5. If the defendants defaults on any of the above mentioned payments , the whole of the outstanding sum will be payable immediately to the claimant and the claimant will be entitled to enter judgment and take enforcement procedures against the defendant for the outstanding sum under the claim and detailed in the claim form (then the judge added "less payments made by the defendant since issue of claim " ).

6. If the defendant defaults on any of the above , the claimant is also at liberty to recover costs of litigation , to be assessed.

7. If any dispute arises out of this agreement the parties will attempt to settle it by mediation before continuing any litigation , if no legally binding settlement is reached within 28 days from a party's notification of intention to mediate , either party may litigate.

 

 

Thank you Diggy........

[diggy116]

Hi , It is now December and after paying £150 on the tomlin and a previous £150 on payments made prior to tomlin but after CCC , to which i presumed was the £300 . I have now recieved a direction hearing letter dated for 2nd January as they say i am in default of the tomlin order . I have phoned the court to confirm things . What i really need to know is as with all the above info can i still request wescot produce the documentation needed before ie; nottice of assignment , default notice and an enforceable CCA , or is it too late at this stage . If i can , do i do it before the 2nd January or at the direction hearing , Thanks for any assistance , regards Diggy.....

[diggy116]

Hi ,

To cut a long story short about the history of this situation which can be read on my other threads , but i signed a tomlin order but have not paid it all (but can do ) It is the mule in me that will not let it go because i rolled over and died last time.

I have recieved another direction hearing for January the 2nd and will attend as i need the claiment to produce the required documentation they did not before.

What i found on wiki is this ;

The written agreement is put before the judge who will record it and give it the approval of the court. It is a kind of court approved contract between the parties. If one of the parties doesn't carry out their side of the bargain - then, Hi ho, Hi ho - It's off to court we go!

Notice that if a Tomlin Order is not adhered to, then there is no judgment in default, it is just that the case is no longer suspended and you can go back and carry on pursuing your claim.

Basically i need advice as to if i can advize the judge at this hearing that he cannot give any form of judgement on this because of non cca and assignment and that the claiment cannot and should not be in court due to not been assigned absolute debt and no documents to back anything up.as they failed 1st time on my cpr , but i was weak and caved , i am now stronger .

But the main advice i need is can i carry on after a tomlin or am i baluggered ????????? ......

ps i told them to kiss my ar** on the phone , can they use this in court lol lol .......Thank you......

[diggy116]

Hi, I recently messed up in court and signed a Tomlin order on an unenforceable debt as there is no CCA , no assignment or default notice

 

The amount was for £300 and as i carried on paying £50 a week to the claimants after a CCC was ordered and the account was in dispute since January 08 therefore i paid £250 inbetween the CCC being given and the date of CCC so i thought i had paid £250 already and i made a £50 payment on the first instalement to make the £300 , but they did not see it this way and we went back into court today as they wanted to implement the Tomlin order , which is

 

 

 

 

IT IS ORDERED THAT

 

1. Judgment , or any orderer direction , against the defendant shall not be requested without permission from the court

2. All further proceedings in this claim be stayed except for the purpose of carrying the terms of the schedule into effect.

3. Both parties will bear their own costs.

4. Liberty to apply

 

SCHEDULE TO TOMLIN ORDER

 

1. the defendant to pay the claimant the sum of £300, to be paid as follows.

2. A sum of no less than £50 per month , to be credited by the last date of each month for the duration of 6 months.

3. Payments are to be maintained by the defendant until the sum referred to at paragraph 1 above , is paid in its entirety.

4. upon payment of the total sums reffered to at paragraph 1 above the defendant is discharged from any further liability in respect of the claimants claim in this action.

5. If the defendants defaults on any of the above mentioned payments , the whole of the outstanding sum will be payable immediately to the claimant and the claimant will be entitled to enter judgment and take enforcement procedures against the defendant for the outstanding sum under the claim and detailed in the claim form

6. If the defendant defaults on any of the above , the claimant is also at liberty to recover costs of litigation , to be assessed.

7. If any dispute arises out of this agreement the parties will attempt to settle it by mediation before continuing any litigation , if no legally binding settlement is reached within 28 days from a party's notification of intention to mediate , either party may litigate.

 

 

 

 

I really need advice on this as I turned up today and Wescot did not and I asked for it to be struck out , she said no ,she the said i will not make any judgement today but adjourn and request wescot to attend a future hearing as they are requesting the full amount + costs of £660. I then asked if she would order the production of deed of assignment for that hearing , she said no as i consented to a Tomlin ,i said i did not understand it fully and anyway it is for an unenforceable debt , she said i will not make an order for that , put her head down and i walked out..

 

 

I need advice as to why she just did not make a judgement there and then or do i have a snippit of hope to get this back on my side ..

 

KIndest regards Diggy

[tifo]

sorry to hear this, but i think you didn't get a 'good' judge on the day ...

[diggy116]

Hi, I have been doing some homework around forums and sites and it appears that the Tomlin fails to meet certain things .

 

1) The wording "by consent" prior to the "it is ordered" part is missing.

2) Any claim for costs must be addressed in the order section and not the schedule as the schedule is a confidential contract and not within court jurisdiction.

3) The failure to place a "from" or "by" date on the schedule so leaving no time scale or deadline to be met, rendering it unenforceable.

 

Maybe the judge on the day realized the claim for costs part and is why she has asked for wesclot to attend next time.

 

Anybody have an opinion on these matters !!!!

 

Thanks diggy...........

[diggy116]

Hi.

After a good learning curve my issues with Wescott are now at an end and all in all at the finish i will have only paid £50 more than the original amount that was due and it has cost Wescott a lot more in solicitors fees and other things, so a moral victory in a warped way...

As a final amount i have to pay £400 by the end of March, which is not a problem in the slightest but i really need to know is what method will cost Wescott the most money to do.

I was thinking of sending 40 cheques of £10 and if they have to pay for every cheque presented at the bank then that is what i shall do...

Which way would any one recommend as the most costly ????????.......

[scorterooney]

Dunno about most costly but im sure i know most annoying :grin:

 

If i lose my set aside hearing on tuesday i have every intention of paying the £2400 + costs in person to First Credit via the medium known as the one pound coin - LOTS of them

[baileyboy]

My business once got paid by an american cheque, as thats all he had on him.

 

Cost an absolute arm and a leg to push it through the bank..

 

Bounced 3 months later to boot.

 

Expensive lesson which I wouldn't repeat - not even to help someone out.!

[cerberusalert]

It's a shame they withdrew the half-pence from circulation

[underdog13]

What was the outcome of this, Diggy?