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Westcot Claimform - M+S card - *Set Aside*


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I had a Credit Card from M&S and the contract was terminated around 05/2006 and the account was transferred to DC (Legal&trade collection), one of there agent used to do the door collection of £25 a month from 07/2006 and then I stopped the door collection and the last payment was on 06/05/2008 and the closing balance was £2128 as shown on the collection card. I terminated the door collection because I felt that I was intimidated. After that I had phone calls and I ignored them as I had few DC on my back and then I heard nothing from them for 4 years.

On 19 July 2012, I had a letter from Wescot SPV saying “we inform you that unless you made a full repayment of your outstanding balance or contacted us to agree an acceptable repayment plan we would take legal action”.

 

I ignored the letter and thought I will deal with them when I come back from abroad. I left the country on 01/08/2012 as I visit my elder parents every year; I come back on the 06/09/2012.During my absence Wescot issued:

1) On 03/08/12 a county court including interest form 09/05/2008 to 03/2012.

2) On 06/08/12 an intimidating letter asking me to pay £2939 to avoid CCJ.

3) On 28/08/12 a judgment by default was issued against me, asking me to pay the claimant a total of £2939.

What is irritating me is that I had no given a chance to challenge them because I was a way and those DCs know most people go away during the month of August.

My Question is that can I challenge them and ask the court to set a side the CCJ on the basis that I was unable to defend the case because I was abroad?

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Hi Noumidia,

 

Introduction

 

To have your judgement set aside you will need to put forward a reason why. You must keep your reason as clear and simple as possible.

Here are a few valid reasons below.

 

 

Were you given 28 days notice in order to pay?

Were you living at the address when the summons and judgement took place?

If you took out a loan or any form of credit were you in receipt of the Default Notice before receiving the summons.

Did you receive the summons? They are not sent by recorded mail.

Maybe you were unable to attend court and defend yourself.

The judgement should not appear on the credit files if it was paid up within 28 days.

If you agreed to settle 'out of court' with the plaintiff you should not have received a Judgement.

If you did not receive any notification of the judgement/s made against you, then you can appeal.

Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?

Was the summons taken out against both yourself and another person jointly. If this is so, did you both receive your summons?

It could have been that you were away from the time between the issue of the summons and entry of the judgement?

Did you receive the summons on time for you to apply to the court. You have 21 days to reply to the court. If the summons was 21 days late then the judgement would have already been taken out against you?

Did somebody use your name or address to obtain credit, which resulted in a County Court judgement without you knowing?

 

 

Regards

 

Andy

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As i said I have not heard from them since 2008 and i was abroad from 30/07/2012 to 06/09/2012 and i do have a solid proof. the summon was in my sole name.

Edited by Noumidia
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Hi Andyorch

In my case is "I was away from the time between the issue of the summons and entry of the judgement?"

I got another letter from wescot today saying " Unless this default is paid within the next 7 days,the claimant my commence enforcement action". My questions are

1) How long do they have before they commence enforcement action?

2) Do I have a valid reason to set a side the judgment default?

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Hi Andyorch

In my case is "I was away from the time between the issue of the summons and entry of the judgement?"

I got another letter from wescot today saying " Unless this default is paid within the next 7 days,the claimant my commence enforcement action". My questions are

1) How long do they have before they commence enforcement action?

2) Do I have a valid reason to set a side the judgment default?

 

 

 

1) Immediately if it is a forthwith judgment.

 

2) If you can prove you were abroad and have a Defencen to the claim then you have a good chance.

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1) I can prove that i was abroad by producing my airlines boarding cards.

2) My defence is where i need help, i did set a side an SD before i have been to court few times against the DC.

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As stated the set a side is not a problem but the defence?

 

Andy

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My defence would be:

1) File CPR 31.14 Request.

Then base the defence on the following points:

1. The claim as pleaded does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence. The Defendant has made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow him to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

 

2. It is Not admitted that the Defendant signed an agreement with XXXX . If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. The Defendant does not have in his possession any such agreement and is not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

3. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is not admitted that any such Agreement is enforceable within the terms of the Act. The Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its' inception.

 

4. The Defendant has no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.

 

5. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing.

 

6. Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed or at all.

 

7. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all.

 

Statement of Truth

 

I believe that the facts stated in this defence are true.

 

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In a particulars of claim its stated that " And the claimant claims interest puruant to section S69 of the county court act 1984 at the rate of 8% per annum from 09/05/2008 to 03/08/2012 totatlling £724.58 to date of judgment or sooner."

I thought Statutory interest cannot be added to debt that is regulated by the Consumer Credit Act 1974.

S69 interest is interest which is added to the principal sum under the County Courts Act 1984 S69

 

Why arent they entitled to it?

 

Because its a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states they are not entitled to it !!

 

 

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12))

 

The general rule

2. -

 

(3) Interest shall not be payable under this Order where the relevant judgment -

 

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974.

 

(b) grants

(i) the landlord of a dwelling house, or

(ii)the mortgagee under a mortgagelink3.gif of land which consists of or includes a dwelling house,

a suspended order for possession.

Can i add this to my defence??

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They are entitled to claim sec69 interest Noumidia as are you if it was your claim.

 

The above is post Judgment, as there is no judgment as yet, hence " And the claimant claims interest puruant to section S69 of the county court act 1984 at the rate of 8% per annum from 09/05/2008 to 03/08/2012 totatlling £724.58 to date of judgment or sooner."

 

Regards

 

Andy

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To have any hope of setting aside the judgment you have to put forward a positive defence, not just pure speculation like "the agreement might be unenforceable, but I don't know whether it is or not so the Claimant should prove it". Post #8 contains nothing of any substance whatsoever and will irritate a District Judge and result in the application being dismissed and further costs being awarded against you.

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My defence is

1) I do not owe money to wescot.

2) I had no contact or agreement with wescot.

3) The CCJ was not served proprely,i did not heard from DC for 4 years about the account and suddenly without any warning ( letter before action) you were issued a ccj.

4) The claimant who need to prove that i own them money as the stated in the claim that "M&S has sold and assigned all right, title and interest under this agreeemnt to wescot SPV Limeted."

My credi file does not shows any debt to either wescot or M&S. I do not trust DC because they are not honest people they alaways lie and if you dont put a defence against them, they get away with it. I dont mind further cost because the already inflated the original debt by almost 30%. I will make a defence,if i loose then more knowledge gained and i will passed it to other consumer so they would not make the same mistakes.

Edited by Noumidia
vocabulary error
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Westcot don't have to prove anything, they already have a judgment against you. It's up to you to prove you have a defence with a real prospect of success. Whether they contacted you before issuing proceedings is irrelevant, as is what is on your credit file. If you can prove that the account was not in fact assigned from M&S to Westcot then great, but now they have a judgment they don't have to prove it was.

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Gaston

That is the point to set a side ,so i get back to square 0,then i defend my case by denying i owe money to wescot. Any DC can go to my CRA and pick up debt registered against me and then issue a ccj,then they dont have to prove anything because they have a judgment against me.My point is what happen if one day M&S ask for their debt? i will just tel them oh by the way i paid somone else !!

Edited by Noumidia
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It doesn't work like that. You won't be given a chance to put in a defence you don't actually know you have. You could have done that after the claim form was issued but before judgment was entered, but not now. Why don't you just ask Westcot for details of the assigment? Or why not ask M & S? If it turns out there never was an assignment you'll have something to bite on other than pure speculation. It's for you to prove there was no assignment now, not the other way round.

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Noumidia I must agree with Gaston on this occasion.

 

 

They simply would not risk presenting the summons as claimant, if a valid assignment was not in place.You will need further reasoning to make a defence rather than just questioning the assignment.

 

Regards

 

Andy

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Gaston

You said "You could have done that after the claim form was issued but before judgment was entered, but not now".The point is that I was abroad when the claim was issued, i never given any chance to defebd my self.

 

 

Do you have a Defence?

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Ganymede

 

All you lot are telling me give up and bite the bullet. As i said i have been to the court before for an SD to set a side and my defence was denying owing money to the DC, gues what the DC solicitor chikened and asked the judge for more time. The judge give the DC 4 weeks to provide the documents relying on, and in the end the DC defaulted because they did not provide the document i asked for. Now it me who is chasing them for the costs.

My point is depend of the judge, and have little hope is better than having none. After all no one come forward to say i had a similar case and you have no defence.

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Noumidia...... opinion seems to be that you'll struggle turning this one around, and tbh my thoughts are the same. If you are insistent on a set aside app; Assume from your posts you don't deny the existence of the account, have you ever made a compliant CCA request and if so are/were they in default of that request? The others are trying to assist but you really must find a known pre judgment position that you can evidence to stand the slightest possibility of setting aside. The alternative would seem to be to bite the bullet and perhaps spend the fee on a time order application.

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Ok Guys lets keep this on track.

 

Noumidia I will play devils advocate here and lets suppose you did submit the defence offered in post #8 this is the likely response you will get:-

 

 

My defence would be:

 

1) File CPR 31.14 Request.

 

Then base the defence on the following points:

 

1. The claim as pleaded does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence. The Defendant has made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow him to properly respond to the claim. The Claimant has failed to respond to the Part 31 request. Ok thats a fair point and one which they will probably not be able to respond to and is possible if pushed hard enough you could get them to discontinue but not all (very few) DJ, would not rule against the Claimant for none disclosure.

 

2. It is Not admitted that the Defendant signed an agreement withXXXX . If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted.The Defendant does not have in his possession any such agreement and is not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.When a debt is assigned you don't sign a fresh agreement the Assignee takes over all responsibilities and becomes your new creditor for all intense and purposes.

 

 

3. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is not admitted that any such Agreement is enforceable within the terms of the Act. The Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its' inception.How do you know this have you ever requested a copy of the agreement from the Original Creditor or Wescot or had sight?

 

 

4. The Defendant has no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.Ok fair point but the majority of creditors do not retain DN,s but they can track that one was issued.This would be acceptable in Court unless you have a real copy and there are a major flaws with it

 

 

5. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing.They will get copies of the Agreement (probably microfiche) and copy statements show them to the DJ and hey presto ...you had the money

 

 

6. Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed or at all.Not complying with a CPR request does not negate the question of Costs...you will still be liable

 

 

7. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all.But the debt has been assigned to Wescot so you do owe the money to them now unless of course there is a mix up in identities and you never borrowed any money from the OC which Wescot have now been assigned.

 

Statement of Truth

 

I believe that the facts stated in this defence are true.(If its not you are committing perjury)

 

Now a set a Side will cost you £80.00 to make the application ( irrespective if its accepted or not) if lets say it was accepted you would have to in the least outline to the DJ why you request the set a side and a synopsis of the defence that you will be submitting.If you submit the above Noumidia you will waste £80, at worst you could be committing perjury and you will be no further along the line.

 

But its your choice .

 

Regards

 

Andy

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Sorry, last post may not have been altogether clear........ Time order post judgment, I believe [although not 100%] its within the rules and complies with the Act - in effect you would be combining 2 applications - set aside based on being out of the country at the time together with the time order, which you could argue you would/could have countered with if you had known of the claim. Not sure it would provide for much more than a redetermination but it should afford you better protection in the future from any possible enforcement of the judgment.

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AndyOrch

 

Ok Andy you could be right, but from my previous experiences the claimant is allowed limited time (4 weeks) to provide the documents and most of them they dont provide them on time as the bank are very slow dealing with DC issue , is there where i am taking my chances.

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