Rayne Vs M&S

[Rayne]

Evening.

 

Dropped the ball big time on a statute barred debt belonging to M&S, due in part to personal reasons which I won't go into here.

 

Anyways, the upshot is that I currently have a CCJ against me from Wescot SPV Ltd, relating to an old M&S card, to the tune of approx 9k. Its been moved now from Northampton to my local Court for enforcement action, and I'm currently filling out an attachment of earnings for them (the Court that is, NOT Wescott). I will of course be taking this in hand tomorrow in order to meet their deadline.

 

I'm currently unemployed and have been for 4 yrs, possibly longer. I don't claim income support or jobseekers, however, although my wife works (but is currently on Maternity Leave and only receiving SMP), we are on full Housing and Council Tax Benefit, as well as Child & Working Tax Credit.

 

Obviously I'm not making an offer of repayment due to its SB status, however, how do I now proceed against my own ineptitude? My plan is to have this judgement "set aside" (?), but would appreciate some assistance in making this happen.

 

I also would like to nail Wescott SPV Ltd to the wall for taking this action in the first place as I am in no doubt at all that they are in full knowledge that this debt is SB, and have wilfully taken it to this level in order to defraud the money. After all, 9k is 9k, doesnt matter who gets it, or doesnt in this case.

 

I have yet to CCA Wescott etc, due in main to them only having a PO address and my not trusting things to be delivered in a proper manner to that said address. Nor have I hit them with any request under the CPR, so in actual fact all I have from anyone is the original claim issued via Northampton, the Default Judgement issued by Northampton, the notification that it has been moved to my local court, and the Notice of Application for Attachment of Earnings Order.

 

Think that covers it all, but if I think of anything else, I'll mention it.

[Rayne]

Sorry, bumping this as my deadline for getting the AoE in is tomorrow. Its completed etc, going in post registered 1st class now.

 

Getting back to the original question, getting this damned thing set aside. Spoke to Gloucester just now and they're sending out paperwork I need to complete in order to start the ball rolling on that part. What else would I need? I'm guessing that Wescott most likely relied on the fact that with this being done around xmas time as it were then I wasn't going to contest it too much and that delays in xmas post etc would count in their favour.

 

However with xmas well and truly dusted and my illness being firmly kicked in the teeth I'm quite keen to get this done and see the back of it.

 

So, I apply for a set aside due to it being SB, I guess, and it is only a guess, that I will need to approach Wescott for copies of anything that they may have originally been relying on had I contested it properly in the first place.

 

As an aside, I've never received any DM for this nor Notice of Assignment, nor any statement etc in approximately 8 years. Looking at my CRF theres a linked address going back to 2004, ie my parents, but after consulting with them, they confirm that they dont receive any post for me other than from an old employer relating to a pension scheme. Are these also further grounds to get this set aside or to throw at them when the time comes? I have no issues with going to court over this, the likes of Wescott don't scare me, I deal with drug dealers and **** every day of the week around here so Wescott to me are nothing.

Edited January 27, 2011 by Rayne

[victoria_siempre]

Hi rayne

 

I don't understand your question.

 

How can they get Application for Attachment of Earnings Order if you have no employer?

 

x

 

vic

[Rayne]

Agreed tbh, however I think they would require some form of proof, ie it wouldnt be enuff for me to turn around and say "Hah, I'm not working so up yours"

[Rayne]

sorry, edited the wrong post then, so more info in the one above :s

[Undercover-Elsa]

Hi Rayne,

Just to clarify, they've already got a County Court judgement against you? (Not just sent a County Court Summons?) Presumably this was by default, ie undefended and not admitted?

 

Have a read here:

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=12_how_to_set_aside_a_judgment_in_the_county_court

 

I think you need to act quickly and make an immediate application to have the CCJ set aside. At the same time contact your local court and ask for the enforcement to be delayed pending a set aside application.

Hopefully others more knowledgeable than I will also advise

 

Elsa x

[Undercover-Elsa]

Hi,

Sorry posts crossed while I made coffee!

I believe you'll need to obtain confirmation that this wasSB prior to the CCJ, so you'll need to send a Subject Access Request to the original creditor to establish the date of last payment. (SB clock starts the day after that, afaik).

[Rayne]

oh its definitely SB, not had any dealings with this at all in about 8 years, since before I met my current wife

[Undercover-Elsa]

That's good news

What I meant though was that you'll need the documentation to establish this to the Court...

[Rayne]

i knew that, honest i did lol

 

Just had the Application for set aside thru from the court. In it I have stated that this is SB. I take it I need to also state that I am / have contacted the claimant for further information regarding their own POC as per CPR 31:14 (I think its that one anyway) and that I am awaiting further documentation from them at this time?

[Undercover-Elsa]

Hi, When did you send the 31.14 request?

It will help too if you can give a good reason why you didn't respond to the claim in the first place.

What were the original POC? Did they enclose docs mentioned in the POC with the claim, or note that they would forward them seperately?

 

Elsa x

[Undercover-Elsa]

There are some good guidelines on filling in the form here:

 

http://www.bdl.org.uk/images/12_how_to_set_aside_a_judgment_in_the_county_court.pdf

 

 

Also, I'd send off that Subject Access Request ASAP as they can take a while. They are supposed to respond within 40 days of receipt.

[Rayne]

not sent the cpr 31:14 request in yet, was going to do that with this application, and no, wecott have never sent me anything at all as of yet, least of all anything in support of their own poc's

[debbbbsy]

Hi, I thought CPR 31.14 was Pre-action protocols, used when a claim is issued, used to demand documents mentioned in the POC before judgement is made.

 

I have yet to CCA Wescott etc,

You cannot send a CCA request. The judgement is now your agreement.

 

Debs

[Undercover-Elsa]

I agree debbs..this seems all back to front

 

As judgement's already made, you need to get it set aside first. But you do need to establish (prove) that it's definitely Stat Barred and for that you need to send for the SAR asap.

[debbbbsy]

Obviously I'm not making an offer of repayment due to its SB status

 

I also would like to nail Wescott SPV Ltd to the wall for taking this action in the first place as I am in no doubt at all that they are in full knowledge that this debt is SB

 

I've never received any DM for this nor Notice of Assignment, nor any statement etc in approximately 8 years

 

So. When you recieved the claim. knowing it was Statute Barred, hadn't had any contact for 8 years. What exactly did you do before they got judgement ?

 

relied on the fact that with this being done around xmas time as it were then I wasn't going to contest it too much and that delays in xmas post etc would count in their favour.

 

When u recieved the claim, you had 14 days to acknowledge, and then a further 14 days to file a defence.

[Rayne]

claim was acknowledged online, however, due to other "distractions", i failed to file a defence and basically left it sitting on a back burner too long - hence the reason its at this stage now.

 

Have now SAR'd Wescott, and sent back paperwork requesting the set aside. Also sent back the Application for Attachment of Earnings which basically states im not even prepared to offer them a penny a month

[Rayne]

Have now received Notice of Hearing (31st May) in my local County Court at 2pm for the Defendant's Application to set aside the Judgement dated 22 February. Apparently 30 mins have been allowed for the hearing and parties should file and serve statements at least 5 days before the hearing. I've emailed the court asking what that last actually means, but I'll ask here as well.

 

In the meantime, still haven't received anything back regarding the SAR, but in all honesty I'm not expecting to either, certainly not in time.

 

Unfortunately, this isn't something I can allow to go on for much longer past 31st March owing to some extreme health conditions within the family, my own notwithstanding. Briefly, my wife is currently pregnant with a child who has been diagnosed with a congenital heart defect which, in the consultant's terms, is "incompatible with life." The child, once born, will require open heart surgery within the first few days of birth, another one at a few months old and another one at a few years old. Projected odds for survival, 60%. SO, as you can imagine, I'm currently under a massive amount of stress to sort this out NOW. The Court has been apprised of this in my initial Application for Set Aside, as being the reason that it wasn't properly defended at the time Wescott brought the initial claim. I have also stated that this can be backed up with medical evidence if the court so requests.

 

On the initial application to set aside, I have ticked the box "the evidence set out in the box below" and stated the following:

THIS DEBT FALLS WITHIN THE PROVISIONS OF SECTION 5 OF THE LIMITATION ACT 1980. IT IS A MATTER OF PUBLIC RECORD THAT I HAVE RESIDED AT MY CURRENT ADDRESS FOR THE PAST 8 YEARS. IN THAT TIME I HAVE HAD NO DEALINGS WHATSOEVER WITH THIS DEBT, BY TELEPHONE. LETTER, EMAIL, PAYMENT, NOR ANY OTHER METHOD, ACTUAL OR INFERRED. THIS CAN SUBSTANTIATED WITH A SIMPLE CHECK OF MY CREDIT FILE (ATTACHED)

FURTHERMORE I AM OF THE BELIEF THAT THE CLAIMANT IS FULLY AWARE OF THE ABOVE AND IS ATTEMPTING TO USE PERCEIVED IGNORANCE OF THE LEGAL SYSTEM IN AN EFFORT TO FRAUDULENTLY OBTAIN MONIES THAT THEY ARE NO LONGER ENTITLED TO.

IN ADDITION, NO DEFAULT NOTICE HAS AS YET BEEN ISSUED, NOR ANY OTHER PAPERWORK IN SUPPORT OF THE CLAIMANT'S CLAIM, BEYOND AN EXTREMELY VAGUE PARTICULARS OF CLAIM.

 

 

For info, their PoC was:

 

The Claimant claims for sums due under a/various Personal Loan Agreement(s) entered into between Marks & Spencer plc and the Defendant. The rights of MArks & Spencer plc passed to the Claimant pursuant to an assignment dated 19/01/06 between Marks & Spencer plc and the Claimant. The agreement(s) was/were terminated upon the Defendant failure to comply with terms of the Agreement(s) and or the statutory Notice of Default served by Marks & Spencer plc.

And the Claimant claims:

Personal LOan Account 123456789 balance of £6109.94 as of 19/01/06

Interest under Section 69 of the County Court Act 1984 at the rate of 8% a year from the assignment Date(s) to 01/11/10 of £2339.52 and also interest at the same rate up tot he date of judgement or earlier payment at a daily rate of 1.34 AND costs.

[DonkeyB]

No, no, no – do not claim fraud. You cannot prove it.

 

It was YOU who failed to enter a defence! So you need to grovel, give a reason for not defending properly at the time, and state it has come to your notice that the debt was SB at the time action was taken. If you believe the claimant knew this, you must provide evidence. As you say they had not contacted you, how can you prove this?

 

For example, what was recorded on your credit files at the time? Was there ANY correspondence from the claimant prior to the claim being issued? Was there a letter before action?

 

Keep it simple – and acknowledge you mucked it up in the first place!

[Rayne]

Okies will drop the "fraud" part at the earliest opportunity.

 

Aside from the actual CCJ itself, there's zero on my CRF about this prior to October 2004 and then only a previous address (which is incorrect anyway, as in 2004 I was at my current address). Between then and the claim being issued, nada.

 

Have already aknowledged to the Court that I fouled the defense up in the first place.

[DonkeyB]

Good. Keep grovelling! If there were ill health issues or family issues at the time, which you can prove, don’t hesitate to use them in mitigation for failing to complete your defence.

 

Can you tell us why they would have known it was SB? It looks like M&S took a long time to record the default and then sell the account. You may also want to contact the claimant with your evidence – they may choose not to oppose the set aside when confronted with the facts.

 

As there is a set aside hearing, all enforcement activity should cease. Good luck.

[Rayne]

They can defo be proven, as stated in my Application to Set Aside, I have more or less invited them to review medical evidence, certainly told them it would be available to the Court if requested.

As for "how do I know that they knew it was SB?"...apologies, I tend to tar all DCA's with same brush and accuse them of underhand tactics before I can support that claim. In retrospect, they may not. I doubt that personally, but I do concede that they may not.

[Undercover-Elsa]

Hi Raine,

So sorry to read of your wife's problems, hun. Hope everything goes well for you all.

 

When is the 40 days up for the SAR ?

 

Elsa x

Edited March 10, 2011 by Undercover-Elsa

[Rayne]

Thanks Elsa.

 

No idea atm as head's all over the place.

Just received copy of Claimant's Witness Statement in post, which is what I assume they're going to rely on in Court on 31 March. As follows:

 

I, Wescott Employee, of Wescot SPV Ltd, will say as follows

 

1. I am tasked by the Claimant as a Litigation Manager and have the conduct of this file on behalf of the Claimant. I am duly authorised by the Claimant to provide this Witness Statement.

 

2. I have had access to the Claimant's file of documents and the CLaimants computerised case management system in connection with this matter. The contents of this witness statement come form my own knowledge except where indicated.

 

3. In accordance with the Law of Property Act we exhibit a copy of the Notice of Assignment which we can confirm was served upon the Defendant (Exhibit MR1)

 

4. The claimant can confirm that the Judgement entered for £8863.20 is a regular Judgement, for the reasons below:-

 

 

5. The Claim FOrm and Judgement were served by Northampton County Court to the address of:

a complete miss-spelling of my actual address

which the Defendant has confirmed as his correct service address in his Application dated 22 Feb 2011, therefore in accordance with CPR.6.9(2) the documents were served at their usual or last known residence. The claimant is also able to confirm that the defendant received the claim issued 29 Oct 2010, filed an acknowledgement of service on 8th Nov 2010, but failed to respond further (Exhibit MR2)

 

6. Claim is in respect of a credit agreement signed by defendant which he has failed to repay. Credit agreement was commenced on 14 May 1998 in relation to Marks & SPencer Account Card. Copy of signed agreement is exhibited at MR3

 

7. Defendant has stated within his Application to set aside Judgement that

"I respectfully ask the Court to set aside original Judgement on the basis that the alleged debt is statute barred under the provision set our under section 5 of the Limitation Act 1980"

Claimant accepts Defendants claims underSection 5 Limitation Act 1980:-

An action founded on a simple contract shall not be brought after the expiration of six years from the date on which cause of action accrued.

However I point to section s29(5) and (6) Limitation Act 1980 which state:

Limitation period can be restarted by an acknowledgement or part payment:-

where the right of action has accrued to recover any debt, and the person liable or accountable for the claim acknowledges the claim or make any payment in respect of it the right shall be treated as having accrued on and not before the date of acknowledgement or payment

 

Claimant exhibit at MR4 a statement of transactions showing the financial history of the agreement for the final 3 years before assignment (Oct 21st 2003 to 7th Sept 2006) and also exhibits at MR5 a statement of payment made to the claimant which confirms that at no point during the agreement has there been a period of 6 years between acknowledgement or payment and this Claim was issued within 6 years of the last payment. The claim is therefore not statute barred.

 

8. As the sum claimed is not statute barred and the defendant does not deny receiving or benefitting from funds advanced to him by the creditor or shown any evidence to dispute his liability for the sum claimed, as per CPR 13.4(3) which states:

An application under rule 13.3 (cases where the court may set aside or vary judgement) must be supported by evidence.

the Claimant therefore feels CPR 13.3(1) applied to this case and the Defendant has to show that he had a real prospect of successfully defending the claim.

The claimant would stress that a "real" prospect must be more arguable and the case of ED&F Man Liquid products Vs Patel (2003) EWCA Civ 472 states that

The burden of proof was on the defendant

The claimant also refered to the Case of ICI chemical & polymers ltd vs TTE Training Ltd (2007) EWCA Civ 725 24.2.3 The claimant submits that this case states that

a case should not proceed to trial on the basis that some further evidence may materialise in the future

 

9. I refer to CPR 13.3(2) which confirms that the court must have regard to whether the person seeking to set aside judgement has done so promptly. The defendent application of 22nd February 2011 is clearly not PROMPTLY

I also refer to Nolan v Davenport (2006) EWHC 2025. It was ordered that;

a debtor who did nothing until the creditor sought to enforce the judgement. The applied to set aside judgement, was refused permission to set aside, it being held that the debtors conduct amount to an abuse of process

 

10. In an application to set aside rge claimant is entitled to their costs we would direct the judges attention to Evans V Bartlam 1973) AC 473. This states that

the court should order that the claimant receives their costs when the court sets aside a regular judgement.

[Rayne]

Will post more up once this damn laptop stops acting up :s