Rayne Vs M&S

[DonkeyB]

What is the evidence of payment they have provided? When do they claim it was made?

 

And what was the date of the original claim? I thought you said judgment was passed in February.

[Rayne]

The evidence of payment that they have provided is a photocopied statement on M&S headed paper dated 15/11/10 and a "Statement of Payments" between Wescott and myself on blank A4 paper. The judgement itself was granted just before Xmas, but owing to ill health, wasn't acted upon until they went for enforcement action in February.

Tbh, on the basis that we're having further WORSE ill-health in the family from the end of May (a child with a congenital heart defect), I'm tempted to withdraw the Application for Set Aside, make my apologies, make them an offer of £5 pm which would be about all I COULD afford), and just pay it off for the next 35 years! Just to do away with the extra hassle that I can well do without right now.

As a further note, I've checked the payments that they say they received against this account with older statements, and the reference number on the standing order doesn't tie in with the reference number quoted in any of the paperwork they've recently sent regarding this, which makes me think "creative accounting"...but then can I really be bothered fighting this right now when I have other more important things to think about? Oh bugger it, I don't know anymore!!!!

[DonkeyB]

You must check if their evidence is accurate. Did you make any payments is the simple question. How do they claim the payments were made? When were they made?

 

You've been given advice here on the basis that you had no contact on the account for at least eight years. Is this not, in fact, the case?

 

What is the relevance of the M&S statement? Best if you scan and post them.

[Rayne]

Well yes I maintain that I've had zero contact regarding this account, altho its not beyond the realms of possibility that I've made payments to Wescott on other stuff.

The relevence of the M&S Statement is that the original debt was with M&S.

 

Out of curiosity, I just phoned M&S to see if they could verify when they last received payment on the account, and the account number given on the paperwork that Wescott supplied in their witness statement, isn't even mine!!!!

[DonkeyB]

What is the other account you have with Westcot? They can not appropriate money from other debts. You need to get very serious on this, and get all your paperwork and account details together to work out what is going on.

[Rayne]

Need a trip up into attic to see if any older paperwork is up there, brb

[Rayne]

Nothing anywhere in the house relating to anything to do with M & S or Wescott. At all.

[DonkeyB]

Do you have any memory of why you were paying them? May need an urgent SAR to Westcot for all info and correspondence.

 

Can you post up the docs?

[Rayne]

Off the top of my head no, only to say that I know damn well that nothing was ever paid by me against this one due to the sheer amount of it and the desire to clear smaller ones first. Could try and be sneaky and phone Wescott up against the reference number on the standign order that I DO have, see if that yields anything. They've been SAR'd but I can't put my hands on the paperwork for that at this precise moment...fair play my filing sucks these days :s

[DonkeyB]

Do that - see if it refers to another account. However, I think they will be wise to this. That's why an SAR is necessary.

[Rayne]

Agreed, but in this case I think nothing ventured nothing gained. JUst wish I could find the SAR paperwork I already sent, well the copy etc, if u follow. In the process of scanning everything they sent today so will post that up soon as I'm done, in between sorting kids etc.

[Rayne]

uploading now, identifiers edited

[Rayne]

Think these links are right, let me know if not:

 

[DonkeyB]

What do they claim was the balance at assignment? are the M&S statements not complete?

[Rayne]

They say balance at assignment was £6109.94 if I paid in F & F at that point otherwise interest of ££2334.16 plus costs of £290, plus interest will continue to accrue until payment.

 

The page that I've scanned and uploaded is the front page of several. Couldnt see much point in scanning the rest in as they were all pretty much of a muchness, same incorrect name and account number

[DonkeyB]

Not quite. That is not the assignment balance but what they were demanding in Oct 2010. What is the balance on the last page of the M&S statements? Are they your transactions?

 

Alternately, have they shown the original NoA and what was the assigned balance on that?

 

Do you have bank statements to see if you paid these amounts?

[Rayne]

Final balance on the M & S statements is £6269.94. Unfortunately, yes they DO look like my original transactions at the time, although still a little confused over the whole wrong name and and account number thing. Not relying on that part tho

 

I've checked the wife's bank account and there ARE payments to Wescott at the times that they state. However, again, the references on the payments do not tie up with the reference against this account as it is now.

[DonkeyB]

Everything is stacking up for them at the moment, I'm afraid. Your confidence in the account being SB may have been misplaced.

 

Why would your wife have set up a standing order to them? Your only hope is that you were paying a different account. Why did the standing order stop being paid?

[Rayne]

Thats what I was afraid of.

My wife gives me access to her account, still solely in her name, and I tend to deal with all payments etc. Although I'm still more than 100% certain that this is SB, being able to prove it is another matter. As for stopping payment, I have no idea, although looking at the state of the bank account at that time its entirely probable that we just weren't able to sustain that level of payment, whether it was for that account or any other.

[DonkeyB]

Your only defence now would be to deny that you had any knowledge of your wife making payments on your behalf. But this would be weak. Was it a joint m&s account?

[DonkeyB]

It was a standing order, so you must have set it up for them. Any idea why you would have done this? Are the payments to Westcot or an agent?

[Rayne]

Well oddly I thought no, but looking at the application, my ex wife is, or was, an additional card holder. Got no memory of that tbh.

As for setting up a standing order, it would have been me that did it, but again, I maintain that theres no earthly reason I would have set one up on this as I was concentrating on trying to clear smaller ones at the time and to set one up with them would have been the equivalent of ****ing in the wind due to the amount owed. Ergo I wouldn't have done, at least not knowingly. And my current wife doesn't set up standing orders / direct debits etc, she leaves all of that to me, always has done, so I know she never would have.

[Rayne]

oops, missed a question, was direct to wescott

[Rayne]

As this is so stacked against me, and on the grounds I have no fight left, I'm going to email Wescott and the Court, make them an offer and be done with it. Thanks for all the advice etc, really do very much appreciate it.

[Rayne]

Sirs

 

 

 

I can confirm that I am in receipt of the Claimant's "Witness Statement". In the spirit and rules of the Overriding Objective of the CPR, I am willing to enter into MEANINGFUL discussion regarding this case.

 

 

 

First though, some background, as Wescot seem unwilling to accept a couple of things, which I wish to make perfectly clear to the Court, and as vindication at least on my own admittedly, haphazard defence of this case.

 

 

 

1. Regardless of what Wescot say, and are prepared to say in Court, I have been resident at this address for in excess of 8 years. This is a matter of public record. Yet in all that time, and despite extensive searches of this property, I have not one item of paperwork from Wescot relating to this debt, other than their original claim, issued in late 2010. Now whether this is down to Wescot or myself I do not know.

 

 

 

2. The Claimant refers in his Witness Statement to my Application to Set Aside as not being prompt. If he has read the Application, and paperwork that was attached, then the Claimant is aware that there have been ongoing health issues which have contributed a large part to the haphazard defence. Indeed I have offered to the Court to make medical evidence available to the Court, should the Court so decide. The Claimant appears to be purposefully ignoring this fact.

 

 

 

3. Whilst the Claimant has indeed submitted evidence in support of their claim, the evidence itself appears to be incorrect. For example, their exhibit MR-4 refers to statements from Marks & Spencer plc. I have spoken to M&S myself regarding these, a most helpful young lady by the name of "May", advisor ID "MG1", using the account number supplied, and can confirm that M&S confirm that neither the account number nor the name quoted on the statements are in fact mine.

 

 

 

4. The Claimant states that they received a number of payments against the M&S account, yet the reference numbers do not tie in together. And whilst I am unable to prove that I never made payment against the M&S account, I feel that there is enough doubt to at least raise the matter and bring it to the Court's attention.

 

 

 

5. As I am unable to refute entirely the Claimant's claim that this is NOT a statute barred case, then I must enter into a repayment discussion, which is what the rest of this email refers to. Referring to the previous Application for Attachment of Earnings Order made, which I can confirm as being unchanged at this time, or for the foreseeable future, then I make the Claimant the offer of £5.00 GBP per month, on the understanding that:

 

 

 

a) They do not "sell on" nor "assign" nor otherwise dispose of this debt to a third party for collection or enforcement action, or any other action, so long as they receive the above amount every month.

 

 

 

b) At the end of May this year, 2011, my wife is due to give birth to a child with a congenital heart defect, Hypoplastic Left Heart Syndrome, a very rare and deadly form of heart defect. The projected survival odds without invasive open heart surgical procedures, are 0%. The projected odds with invasive open heart surgical procedures are around 60%. There is no cure for this form of heart defect. And at any point, the child may still deteriorate to the point that their heart can no longer sustsain them. With this in mind, at no point are Wescot to commence further contact in an effort to obtain further increases in the above rate of payment, so long as point (a) above has not been breached.

 

 

 

c) Debt Collectors are well known for their "bully boy tactics", and although I have never experienced such tactics with Wescot, I am sufficeintly aware of them to insist that Wescot themselves at no point will ever resort to them. I would draw the Courts attention to an article in the Daily Mail in 2007 http://www.dailymail.co.uk/news/article-484772/Grandmother-terrorised-death-bank-wrongly-hounded-16-000.html. Further, I would draw their attention to the numerous Consumer Forums (CAG, MSE to name but two) asking for assistance in dealing with Wescot. THIS account, with point (b) above in mind, is to be handled with the utmost sensitivity at ALL times.

 

 

 

d) Should Wescot decide to breach any of the points above, then a claim for compensation will be made, for no more than the amount outstanding, unless it can be proven that Wescot's actions have led to a failure in care for the child mentioned in (b) above, and, as a result of that failure, the child's health has been detrimentally affected further.

 

 

 

I would be grateful if the Claimant lets me know whether or not they accept these terms, by either return email with the Court copied in, or by letter, with a cc to the Court, no more than one calendar week from 21 March 2011.