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

[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

[Rayne]

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

[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?

[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

[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.

[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.

[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.

[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

[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!!!!

[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!!!!

[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.

[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

[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:

 

[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

[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.

[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.

[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.