Summons received from Wescot/MBNA

[foreveraloe]

Not sure if this is in the right thread.

 

Well this is very strange!

 

Sometime ago back in about 1997/98, my husband had a credit card with Abbey National and was paying it back on a regular basis. Around 1999/2000 I was very ill and unable to work and we couldn't afford the monthly payments. He thinks he made an arrangement to pay a small amount, but can't actually remember how much.

 

We moved to our current address in the summer of 2002. He remembers having various conversations with Abbey at this time but can't remember actually making any payments. Abbey then either sold the debt to MBNA or they were taken over, not sure which. He doesn't recall receiving any notice saying it was being taken over, but it's possible he did receive one.

 

Over the years, he's received letters from Wescot threatening action etc. I think one or two "prove it" letters were sent, but nothing was ever resolved. To be honest, we're not in a financial position to pay it either.

 

The summons claims over £7,000 which is made of interest as well. It also claims that MBNA took over the debt on 19/11/03 the issue date is 26/11/09.

 

In all the time that we have lived at our current address (7 years), he has not made any payments or acknowledged the debt.

 

I have two questions really.

 

1. Is the debt now statue barred bearing in mind the dates?

2. What do we do now? Should we send them a "debt in dispute letter"?

3. Do we respond to the Summons now or wait until Wescot respond?

 

Any advice on the next step to take would be appreciated.

 

 

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Edited June 23, 2010 by foreveraloe
To add information

[hungrybear]

Just to clarify

 

-you have received an N1 county court claim with a claim number on it etc?

IF YES YOU NEED TO ACKNOWLEDGE SERVICE ASAP - if its from northampton you can acknowledge online

 

- HE IS SURE THAT THERE HAS BEEN AT LEAST 6 YEARS WITH NO ACKNOWLEDGEMENT / PAYMENT?

If yes when you acknowledge go for intend to defend in full

 

If he is sure that the debt is statute barred then that is an absolute defense and they are stuffed

[foreveraloe]

Hungrybear - thanks for the reply. Yes, it is definitely a genuine Nl form, sadly!

 

I have been having a frantic search around the house to see if I can find any correspondence that was sent to them from hubby, but came up with a blank! He is almost 100% positive that he hasn't paid anything for at least 6 years. I guess the only way to be really sure is to go through all bank accounts to check if any payments were made that way, but I don't think they would have been. If any were made, they would have been with a paying in slip with cash. As far as he can recall he certainly hasn't acknowledged the debt.

 

He got letters from time to time, from various DCA but just ignored them (silly I know!).

[42man]

Hi Forever.....firstly try and relax....if as HB has siad there has been NO payment towards the debt for at least 6 years then it will be statute barred....you must acknowledge receipt of the claim from within 14 days of the date on the claim....state DEFEND ALL.....once you have done this you get a further 14 days in which to submit a defence....I don't think you'll need to send the CPR but if you really want to then this one might be good - http://www.consumeractiongroup.co.uk/forum/legal-issues/162456-help-statute-barred-debt.html#post1744862 (send recorded)....however....this is the defence to look at (and use) - http://www.consumeractiongroup.co.uk/forum/legal-issues/162456-help-statute-barred-debt.html - You can be sure that if they discontinue you can go for a waster costs order too - http://www.consumeractiongroup.co.uk/forum/legal-issues/163506-county-court-claim-received.html

 

Please keep us posted....

[foreveraloe]

42man - thanks very much for that info - I'll get onto it straight away.

[42man]

Had you heard anything from Wescot previously ? or sent anything to them ?

[palomino]

One small point : MBNA ran Abbey's credit card scheme for them. Underneath it all there is only MBNA involved.

 

As has been pointed out the debt would appear to be statute-barred. Unless of course MBNA can prove you made a payment after they say they 'took over' the debt.

[hungrybear]

As has been pointed out the debt would appear to be statute-barred. Unless of course MBNA can prove you made a payment after they say they 'took over' the debt.

 

 

AH the infamous cash payment at a post office in Truro on a Sunday:D.

[palomino]

AH the infamous cash payment at a post office in Truro on a Sunday:D.

 

For £1 ...

[foreveraloe]

Had you heard anything from Wescot previously ? or sent anything to them ?

 

 

42man - in response to your question, yes I believe hubby did have letters from Wescot from time to time with quite long gaps in between when he received nothing. I was under the impression that he did write a "prove it" letter of sorts, but cannot find a copy of it, so am not entirely sure. I have found an old credit card statement which states last payment was in November 2002! As yet, I have found nothing newer than that. I do know that he spoke to Abbey on the phone some years ago, until I told him to stop doing that. I know for a fact that he has never spoken to Wescot on the phone!

[foreveraloe]

I have now acknowledged summons online and stated that we intend to defend.

 

On the question of statue barred, is it up to us to prove that it is SB with paperwork we may have (although I haven't found anything newer than mentioned above) or would the onus to prove debt is still enforceable be on Wescot? This has been bugging me a bit, so any advice on this point would be appreciated.

[hungrybear]

I have now acknowledged summons online and stated that we intend to defend.

 

On the question of statue barred, is it up to us to prove that it is SB with paperwork we may have (although I haven't found anything newer than mentioned above) or would the onus to prove debt is still enforceable be on Wescot? This has been bugging me a bit, so any advice on this point would be appreciated.

 

 

No it is for you to state in the defence, towards the bottom, that if it is proven by the claimant that there was an enforceable agreement, compliant DN, Notice of assignment etc then the defendant will rely on the provisions of one or more of sections 2,5 and 9 of the limitations act 1980 and puts the claimant to strict proof of an acknowledgment or payment within the timeframes therein. Or words to that effect.

 

You now need to get a cpr 31.14 request off for documents referred to in the POC and a cpr 18 off for other information. I would include in the cpr 18 a request for proof of last payment with full audited tracking from the banks involved. - if the last payment was in the last 6 years then that information is available.

 

It would be unwise at this stage IMO to just rely on saying it's SB, you need to hit them between the eyes on all fronts

[foreveraloe]

Just a bit confused here. Could some please clarify exactly what letters I need to send off. Below is what has been suggested:

 

Combined CPR 31.12 and CPR 16.4(2) Requestcpr 31.14

cpr 18

 

I obviously want to send off the correct one. Sorry if this sounds a bit dim!

[hungrybear]

Just a bit confused here. Could some please clarify exactly what letters I need to send off. Below is what has been suggested:

 

Combined CPR 31.12 and CPR 16.4(2) Requestcpr 31.14

cpr 18

 

I obviously want to send off the correct one. Sorry if this sounds a bit dim!

 

I think you have a touch of CPR fever:p

 

I may now sound a bit like Kryten! (red dwarf when rimmer quotes space code):

 

16.4 is about contents of the POC. You may refer in your defence to their 'not fully particularised claim' etc but there is nothing to request as such here.

 

31.12 is about specific disclosure, this MAY come into play later but not yet.

 

31.14 and 18 YES THESE ARE THE ONES TO SEND!

 

Send a covering letter and the two requests in one envelope by recorded delivery. I think it is important to state in the covering letter that if they dispute their obligation to disclose any documents referred to in the 31.14 cpr because they are not directly mentioned in the POC then you would draw their attention to the appended CPR 18 request and require disclosure under that rule in any case...... or something like that.

 

I know all this Bo*(*&cks is confusing, time consuming and frustrating. Just take it one step at a time then come back on here and we'll find someone to help you deal with the reply.

 

I would strongly suggest at this stage you put together a holding defence to submit the day BEFORE the court submission deadline - it's quite a common trick to not respond to your cpr request on time, I think in the hope that it will make your head spin round and hopefully not submit a defence, so allowing jugdement by default. But you're on cag now so they had that one!.

 

To do list:

 

1)Send cpr 31.14 and 18 with covering letter by recorded delivery

2)work out the deadline for defence submission - any doubt ask on here and check with the court - you cannot afford to miss this deadline it gets very complicated if you do.

3)draft holding defence for submission the day before the deadline either online or in person. If you have to post it for any reason then special delivery two days before the deadline is a must.

4)sit down, have a beer and enjoy christmas!

[foreveraloe]

Hungrybear - thanks for that info.

 

However, I have a further development!! Much to my dismay I have found a letter from Wescot dated 15/12/04 which refers to "a recent communication" and "an offer to pay £40 pw"!!! I assume that silly hubby did in fact speak to them on the telephone (despite my telling him not to!!!). Although I am certain that no payments were ever made regarding that so called arrangement. The last payment I have found was in Feb 2003. I don't think that we can now use the SB route.

 

So will have to defend on the grounds of financial difficulties etc. Would the cpr letters referred to above still be relevant or would other letters now have to be sent.

 

Advice would be very much appreciated. I want to get them done today if pos or in the morning so that I can send off.

[hungrybear]

Hungrybear - thanks for that info.

 

However, I have a further development!! Much to my dismay I have found a letter from Wescot"!!! I assume that silly hubby did in fact speak to them on the telephone (despite my telling him not to!!!). Although I am certain that no payments were ever made. The last payment I have found was in Feb 2003. I don't think that we can now use the SB route.why not? a)they would have to prove it and b)as soon as he realised that, in the confusion at the time, he had discussed an alleged debt that he did not recognise, he made no payment.

 

It is for them to prove that it is not SB not you that it is.

So will have to defend on the grounds of financial difficulties etc. Would the cpr letters referred to above still be relevant or would other letters now have to be sent.

surely you defend on the grounds that they have to prove that was a debt and that it is enforceable and not sb.

Advice would be very much appreciated. I want to get them done today if pos or in the morning so that I can send off.

 

Remember that SB is only part of you defence anyway as I said yesterday.

 

I suggest you do like I have done in the quote of your post for future reference. Once in court, the trolls decend on cag.

 

IMHO this changes litlle if anything

[postggj]

However, I have a further development!! Much to my dismay I have found a letter from Wescot dated 15/12/04 which refers to "a recent communication" and "an offer to pay £40 pw"!!! I assume that silly hubby did in fact speak to them on the telephone (despite my telling him not to!!!). Although I am certain that no payments were ever made regarding that so called arrangement. The last payment I have found was in Feb 2003. I don't think that we can now use the SB route.

 

chill on this one

 

even if your hubby did agree a repayment on the phone, it means nothing

 

it has to be done in writing or payment to cancel out the statute barred

 

you have no wories

[foreveraloe]

I have sent off my CPR 31.18 and 18 letters. I sent them to both addresses on the claim form because I don't trust them! The one sent the non-po box address has been delivered and signed for - the other hasn't.

 

Anyway, I now want to work on getting the Defence sorted out. Not sure which way to go on this. I think defence will have to be on the grounds that we simply don't have the money to pay it. Whilst I appreciate this is not a defence in itself, if it turns out the debt is not SB and they produce the documents asked for, that is the only defence we can rely on.

 

Any advice or thoughts on this would be appreciated.

[Huff&Puff]

Not having the money to pay is not a defence, you will lose in court if you try that.

 

You need to heed the excellent advice given so far, and defend on the grounds of it being statute barred, there is no enforceable agreement, default notice and notice of assignment. They have to prove otherwise, and even if they somehow can, you will still be no worse off, as the judge will only order you to pay what you can afford.

[hungrybear]

your defense at this stage is a holding defense based on the fact that they have not produced documents.... oh and the fact that it is statute barred.

[foreveraloe]

Thanks for the responses on this. Still not received any acknowledgment of the letters regarding the CPR info.

 

Just about to do the defence, but I've read somewhere on here that the POC should mention the fact that if it is credit card debt, it should state that is for an agreement under the CCA 1974. Is that correct and also they can't claim interest under s69 of the county court act 1984? Or am I just getting a bit confused?

 

Anyway, I think at this stage a holding defence is what I shall do - I'm still unsure about the SB aspect of it, cos if they prove it is NOT SB, won't we look a bit daft if we claim that now?

[tosh1]

subbing

[foreveraloe]

Advice on the next step would be greatly appreciated.

 

No response at all from Wescot regarding the CPR requests, not even an acknowledgment - not surprising really.

 

Hubby received a letter from the Court on 29 December stating copy of our holding Defence had been sent to Claimant and they had 28 days to respond. Well, again, no response.

 

Yesterday, he received an Allocation Questionnaire. Case has been transferred to our local county court.

 

What's the best way to deal with this now. He has no documents to go on, only statements dating back to 2003. He still can't defend properly with no documents. The fact that Wescot have totally ignored the CPR requests surely weakens their case?

[tosh1]

Hi

 

I dont think that Wescot have a case. they would have replied by now if they had.

 

Tosh1

[ODC]

Westcrap obviously expected you to roll over and not defend. They obviously thought they would get a judgement by default.

 

The fact that they have not complied with your CPR request leaves them in trouble with the courts and is a good defence for you