Rashley V's Westcott

[Rashley]

Morning Guy's, need some serious help.

 

Had a phonecall from Wescot about three weeks ago regarding an old (NOT Statute Barred) Credit Card debt from MBNA. Told them I would CCA and statement request them, but don't get paid untilMonday so thought I'd leave it until then.

 

Guess what, this morning a Claim Form from Kingston Upon Hull drops through the door asking for £5.7K. No idea yet how much is charges or whether they have a completed CCA.

 

I'm sure I owe them some and would like to offer a payment plan, but given the fact that I have no statements and no CCA, unsure what next course of action is.

 

Could really do with yet more help !!!

 

Rashley

[mr.ton]

 

The Office of Fair Trading: Contact us

 

http://www.oft.gov.uk/shared_oft/bus...plaintForm.DOC

 

debtcollectionguidance@of t.gsi.gov.uk

[sillygirl1]

Challenge the WHOLE amount, and get the ball rolling back to them asap. They won't like it and will probably discontinue..... Westcot are pretty poor at this game.

[mr.ton]

Westcot are pretty poor at this game.

 

As are all DCA's from my experience of them

[2Grumpy]

Is this really a court document or a debt collection scare?

 

try comparing it with the real thing - there are a few posted on the site - or scan yours, remove personal details, load to photobucket or eqvt & post the link here.

 

Are MBNA the ones making the claim?

 

If this is a real claim, you will have to decide what to do.

 

You will have to acknowledge the claim by one date (probably saying that you contest the full amount) and supply a defense by a later date. Most likely you will have insufficient details & wont get all you need in time so you will use a general holding defense until you have.

 

How old is the card? Did you apply on paper or online? Is it personal or a business account?

 

Send a CCA request immediately (and a CPR request to see a copy of the actual signed document).

 

Do you remember receiving a default notice? Do you still have it? If not, include a request for the default notice in the CPR request.

 

You probably need a SAR as well - you need as much information as you can get. The SAR wont arrive in time to help with your defence but it may be useful later.

 

If it's not MBNA taking you to court, you should be asking for a copy of the letter of assignment.

 

Have a look through the legal issues forum as well as this one. There are a lot of successes so don't be despondent.

 

They need to have all of the documentation to win & it needs to be 100% correct. Most likely they won't be able to find all of it or it won't be correct.

[Rashley]

Looks pretty real to me !

 

Firstly, let me just say that I'm not trying to wriggle my way out of this. I do owe the guys some cash. However, I do NOT want to pay any unlawful charges. What I'd like to do is try and agree, either with Westcot or the court, a repayment schedule that suits both parties until the amount, excluding said charges, is cleared.

 

So, the question is how do I complete the court thingy, do I contest some of the amount, as yet unknown?

 

By the way, the original phonecall was from Westcot, Westcot are taking me to court. I think I rec's a letter before action.

 

Anything else required, let me know.

[2Grumpy]

If they take you to court you are stuffed unless you win completely

 

It will be all, plus court fees plus their costs or nothing

 

For them to win they need

 

A properly executed credit ageement with all of the appropriate terms

A valid default notice

A letter of assignment delivered recorded delivery by the original creditor

 

They are unlikely to have all that

 

Your best course is to contest this and win

 

Of course you can pay them something afterwards if you want to.

 

Acknowledge the claim before the date on the claim form saying that you will contest the fuill amount

 

Supply a defense by the second date

 

You will get the case transferred to a court near you if you are going to defend yourself

 

Read the rest of this thread & a few from the legal section.

 

Can you scan the claim form & post it here (block out persona details)

[mr.ton]

If they take you to court you are stuffed unless you win completely

It will be all, plus court fees plus their costs or nothing

 

Not so....they can repay a £1 per month if need be, once all outgoings are taken into account

[Rashley]

Thanks Guys,

 

No scanner I'm afraid, but definately NEVER had a deed of assignment delivered in any manner.

 

Basically, I know I owe, if I have to pay, I just wanna pay what I owe, NOT what they have decided to add on in charges. £1 a week sounds like too much to me !!! (Joking, although it does make you wonder why you bother working sometimes.)

 

I'll do a CPR request and post it up for review if that's OK.

[ScabHunter]

The first step is to ascertain whether or not this is a genuine court document. You say that you think it is, so assume for now that it is. It is much better to waste time replying to a court form you later find is false, than it is to ignore a form which turns out to be genuine.

 

You say the form has come from Hull? So, it wasn't issued through the Northampton Bulk Centre? In that case, there should have been documents, including the agreement itself, attached to the claim form. Were there?

 

What you need to do is acknowledge service first of all, to give yourself time to make the proper CPR requests and submit a defence.

 

If you have no scanner, can you type in the exact wording of the Particulars of Claim, leaving out any exact amounts which could positively identify you?

 

SH

[sillygirl1]

Westcot are well known for sending out a Notice of Court Action on blue paper exactly like a proper court document. The only way you can check this is to go online and type in the reference on the Northampton County Court Website. It seems a bit 'sudden' for them to start chasing this. They are not known to take people to court as they often don't have the proper paperwork and to do it like this is against the pre-action protocols.

 

We can help you write a solid defence against them.

[ScabHunter]

Westcot are well known for sending out a Notice of Court Action on blue paper exactly like a proper court document. The only way you can check this is to go online and type in the reference on the Northampton County Court Website. It seems a bit 'sudden' for them to start chasing this. They are not known to take people to court as they often don't have the proper paperwork and to do it like this is against the pre-action protocols.

 

We can help you write a solid defence against them.

 

Interesting. My only question here would be - If the papers were issued from Hull and not through Northampton, would they show up on the Northampton County Court Website?

 

I think you would need to get in touch with the issuing court to find out whether it is genuine.

 

Is there any tell-tale wording on the document, such as the aforementioned "Notice of Court Action"?

 

Did you receive a proper "Letter Before Action" from Westcot before this?

 

SH

[sillygirl1]

Sorry, meant to say Kingston on Hull (which again makes it dead supsicious to me as most bulk claims go via Northampton...). Still bunged up with swine flu...

 

They did a document like that to work for somebody who has never lived in our office and I sent it to the legal team, who reported them to the relevant authorities for 'faking a legal document'... sometimes they send out red documents as well.

 

Making a document look like a court form is against the OFTs guidelines.

[Rashley]

For some reason, I really hope I'm not being taken in. I'll find a scanner, but in the meantime, it's on Blue Paper and came with a response pack and notes. It has a stamp, rather than a seal where it says SEAL.

 

Came in a plain hand writen envelope (with wrong postcode and My dateof birth missing on the form)

 

POC says;

"1. The Claimants claim is for £xxxxx beingmonies owning (sic) to the Claimant due under a crediy agreement.

2. Under an agreement between MBNA and Wescot SPV Ltd, MBNA sold and assigned all rights, titles and interest, under this credit agreemnet to Westcot SPV ltd.

3. The sum of xxxx remains outstanding despite repeated demands.

 

and the claimant claims

 

1. £xxxx

2. Interest pursuant etc..."

 

Finally, there is a case number, how do I check this?

 

Thanks guys.

 

Sorry, forgot. Think I got an LBA, but so much been going on can't swear to ot.

 

Only wording at top of form is "Claim Form"

[Rashley]

Morning, any ideas chaps?

[Big_Bother!]

Hi Rashley

Have you been served with a proper Default Notice? This should have been sent 1st Class recorded and signed for by you. You then have 14 dyas to rectify the sitation - sounds like they have committed fraud.

[Rashley]

Morning,

 

I have never been sent anything that I had to sign for.

 

I assume I should carry on with the defence and CPR to prove this?

[ScabHunter]

I would telephone the court, quoting the case number, just to verify that this is a genuine claim.

 

If it is, then you need to send off the Acknowledgment of Service saying you will be defending all of the claim.

 

I'll read through the thread again to make sure we get the CPR letters right.

 

SH

[Rashley]

Afternoon chaps,

 

thanks for all the previous advice. I called the court today who confirmed that this is genuine.

 

Coud you peruse my CPR request and make sure it's OK? Thanks.

 

Should I send to to Nelson guest who are named as the solicitors and address for correspondence or Westcot SPV, the claimants?

 

Thanks (x 10 million)

Mr R Ashley.doc

[ScabHunter]

OK. I thought it sounded as though it was, but it was best to find out.

 

The first essential is to send out the Acknowledgment of Service. Don't forget to do that, whatever you do.

 

I will be back with a post about CPR letters in a few minutes.

 

Did any documents come attached to the claim form?

 

SH

[Rashley]

Just a response pack and the notes on comletion

[ScabHunter]

CPR 31.14 allows a defendant the right to inspect documents mentioned in a statement of case. The question is, what counts as a mention? Does it have to be a direct mention, or can it be indirect? The CPR are not specific here.

 

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Ministry of Justice

 

Going back to the PoC in this case, the credit agreement is clearly mentioned. The word "assigned" appears in the PoC, in the context of the account being sold to an agency, so I would treat this as the Notice of Assignment being specifically mentioned.

 

The use of the word "sold" is interesting, as it implies a default and termination. Can we therefore include these as part of a CPR 31.14 request?

 

In the absence of any clear direction, I would certainly do so as there is no potential downside. A request for these will be included in the Part 18 request anyway, and the court will need to order them to be disclosed if the case is to be fairly heard.

 

If I was fighting this, I would send the following -

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgment of service to the court in which I indicate my intention to contest all of your claim.

 

Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment

 

3 the default notice

 

4 the termination notice

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully,

 

xxxxxxxxxx

 

 

More to follow.

 

SH

[ScabHunter]

The wider ranging but less powerful CPR 18 then needs to be used to attempt to gain other information which will be needed in ascertaining whether or not this claim has any justification. Examples are, statements which will be needed to calculate the amount of unfair charges or other excess monies which have been added without there being a contractural justification, the amount of insurance (possibly mis-sold PPI) added to the balance, and the evidence that this alleged debt was securitised in the UK.

 

PART 18 - FURTHER INFORMATION - Ministry of Justice

 

I would send this -

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

CPR 18 - REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

b. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

c. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

d. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

e. Copies of statements for the entire duration of the credit agreement.

f. The Deed of Assignment

g. Evidence of securitisation in the UK

h. The termination

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

 

Don't expect these requests to be complied with, as the word "compliance" is not in the DCA dictionary. If they do not comply, they can be challenged again at the AQ stage, or, in the case of CPR 31.14, you can make an application to the court. These are the relevant links.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-3.html#post1771008

 

Send CPR letters, or indeed any communications, to the address given as the "address for correspondence". Use Special Delivery if you can afford it.

 

SH

[Rashley]

Thank you for all that !!

 

3 questions;

 

I never requested a CCA formally, just in a phonecall. Take that bit out ?

 

Send BOTH Letters to Neslon Guest?

 

Finally, I'm a kinda pessimistic guy (years of being beaten by the big companies I suppose), What, if any, is the downside of filing a defence. I know I owe them some money but I also recognise that some of it is made up of unlawul charges. What is the courts view on defending a partially valid claim?

[ScabHunter]

If you didn't make a formal CCA request, I would take this bit out -

 

"Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored."

 

Yes, send both letters to the address for correspondence.

 

There are no negative consequences for filing a defence, as a defence can only refute what is contained in the Particulars of Claim. At this stage you have no paperwork, so your only sensible course of action is to submit a holding defence and try to obtain the paperwork necessary to determine whether or not there is any debt, and, if so, whether or not that debt can be enforced through the courts.

 

If there are unlawful charges on the account statements, that is likely to mean that any default notice issued was inaccurate. As the account has now been terminated, that would leave the creditor unable to claim for the balance, and only entitled to any arrears.

 

There may be opportunities for negotiation as the case progresses. It is far too early to say at this stage.

 

SH