Marlins/Restons Claimform - Old M+S Credit Card Debt ***Claim Discontinued***

[girlandlurchers]

Hello, thank you very much for letting me know, at least it means I can take action and send the letter to the court recorded to guarantee delivery, am slightly frustrated by the non reply of either company, Marlin said I hadn't filled in the PO. Correctly but that was turned round the same day. think that Restons are out of time for their reply but not sure if you count Saturdays. Thank you for your help

 

Thank you so very much, a couple of the other members did say that Restons were unlikely to play fair or reasonable but it is a little disappointing that they have not responded, I am guessing it is because it was an M&S initially but obviously cannot be certain of that without their confirmation.

[citizenB]

You should be able to submit your defence online.

 

Restons are not one of our favourite solicitors ! This is quite a large sum they are claiming, one would expect them to be able to provide the information required. Your defence should put them to strict proof of their claim and I am sure the court will order that they provide something before the case is heard.

[girlandlurchers]

Thank you, may I ask if it is possible to draft my defence in brief and post it here for comments, am a bit of a newbie to all this? May I also ask if you think it worthwhile to say that I believe I did hold an M&S card in 1989 but that in the death of my husband and confirmation of my diagnosis of cancer i contacted M&S to say that I wouldn't be able to pay full instalments for the card anymore? I did this for all of the creditors including the mortgage holders. finally, the elephant in the room, do I tell them that I no longer reside at the address where The correspondence is directed to. I have not put my name and address in the letters, just the references and the 'I dint acknowledge this debt' statement. Am hoping this doesn't play on my mind too much at work today but will need to leave shortly. Thank you once again

[citizenB]

Yes, that would be great if you could draft something - then andyorch/others can knock it into shape for you

 

Yes, you should mention that you did contact M&S along with all your other creditors. Whether or not you do this in your defence or witness statement if it gets that far, andyorch should be able to advise.

 

I think you are going to have to confirm your address to them at some point - are the court aware of your address ?

[girlandlurchers]

Hello again, am just about to draft the reply, have looked st some of the other posts where Restkns have been involved and am very nervous now, they seem incredibly aggressive, this is very scary.

 

Right, on a slightly more positive note have finally managed to unlock my Experian credit report. Up unti, 9/2/14 there was only one entry my mobile monthly contract, all green, showing that for the last 6yrs I haven't missed a payment. Then on 9/2914 Restons so,I tiros have inserted a default account. it states a default date of 30/10/10 in respect of a debt of 8,345.00 owed to M&S for a store card/credit card taken out in18/7/1989. There are no payments shown and no details if payment amounts missed.

 

Does this help me? Should I say in my defence that this jnformation has only just been added by Marlin/Restons and there is no further information. It is very galling that they can arbitrarily add this info, doesn't seem reasonable that it can be added without any consultation with me but it does show that they have never been in contact with me prior to when I received the summons.

 

Any advice on this? Thank you

 

After the exciting discovery that I can now access my Experian file last evening, please find below the defence I intend to file electronically this morning. Having read the numerous accounts of others in the same situation as myself with Restons I have no doubt this will grumble on for some time now.

 

Defence

 

The court documents received in 20/02/2014 referenced (Edit)refers to a contract

dated on or about 18/07/1989 and assigned to the claimant Restons Solicitors 20/02/2013 between the Defendant

and M&S Financial Services.. On 21/02/2014 a formal CPR 31.14 request was sent to Restons requesting a copy of the

Agreement, the Assignment and a statement of account including penalty charges. They advised me by letter on 25/02/14 that they required a signature to that letter which was so done and the request returned to them along with a Part 18 request for further information. To date I have not received a reply to either of these requests nor any confirmation that they intend to comply with my request.

 

In these circumstances it would seem that they are unable currently to provide the supporting documentation required and so would respectfully ask that this matter be stayed or dismissed entirely.

 

Hello there, sorry to be a pain but I was wondering if anyone might glance through my defence, I thought I had posted it last night but was so tired I must have fluffed it and it didn't appear as posted *duh*. I redid it this morning as soon as I checked my mail. I have to work and won't be back until late tonight and am concerned about leaving electronic filing until post 22:00 tonight, my broadband isn't 'the' most reliable thing known to mankind. Thank you once again, we get paid on Friday and I be sure to make a donation, you guys have been terrific, I'm so grateful.

[AndyOrch]

Hi

 

Could I please advise that you do not submit the above as your defence as it is not CPR compliant nor is it suitable to the claim made.A defence must accept refute or question the claim made with regards to the debt the claimant is trying to claim.

 

The above is an Itinerary of what you have done since receipt of the claim and fails to deal with the debt.

 

Have you looked at any other threads and examples of draft defences?

 

Regards

 

Andy

[AndyOrch]

Here is an example of how your defence should be compiled ....write out your particulars first...number them and then respond to the numbers within the opening paragraphs of your defence.

 

BTW...When was payment last made to this debt? Have you ever acknowledged it with Marlin?

 

Particulars of Claim

 

1.THIS CLAIM IS FOR XXXX THE AMOUNT DUE UNDER AN AGREEMENT BETWEEN THE ORIGINAL CREDITOR AND THE DEFENDANT TO PROVIDE FINANCE AND / OR SERVICE AND / OR GOODS.

2.THIS DEBT WAS ASSIGNED TO / PURCHASED BY (Claimant) ON XXX AND NOTICE SERVED PURSUANT TO THE LAW OF PROPERTY ACT 1925

3.PARTICULARS

RE: Original Creditors Name

 

A/C;XXXXX AND THE CLAIMANT CLAIM XXXXXX. THE CLAIMANT ALSO CLAIMS interest PURSUANT TO S69county court ACT 1984 FROM XXXX TO DATE AT 8% PER ANNUM AMOUNTING TO XXX

 

 

Defence

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is noted. I have in the past had financial dealings with (Original Creditor) .

 

3.Paragraph 2 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served last year from either the Claimant or (Original Creditor).

 

4.It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

5. On receipt of this claim I requested by way of a CPR 31.14 request and a section 77/78 for copies of any documents referred to within the Claimants particulars to establish what the claim is for. To date they have failed to comply to my section 77/78 request and remain in default and with regards to my CPR 31.14 request have stated that they are under no obligation to disclose any documentation on which their claim is based.

 

6. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

7. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

8. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Edit to suit and post if you are unsure of any of its contents.

 

Regards

 

Andy

[girlandlurchers]

Oh my word, had no idea that you had to submit the defence in such a way *head in hands* . I really am all at sea the this whole thing.

 

I do not know when the last payment was made, having accessed my credit reference file now I find that there are no indications of the debt having existed until Restons added it to the file on 9/2/14. prior to that the only thing on my credit file is my mobile phone contract which is paid monthly. haven't used credit cards for years to try to keep control of my money, my health has been poor and I have only ever worked part time as I do now so tend to try to stay within my means wherever possible.

[AndyOrch]

Just bringing your Particulars forward:-

 

Particulars of Claim

 

The claimant claims payment of the overdue balance due from the defendant(s) under a contract between the defendant(a) and marks and spencer financial services plc dated on or about 18/07/1989 and assigned to the claimant on 20/02/2013 in the sum of 8345.55

 

Particulars a/c no **********36

23/01/2014 default balance 8XXX.XX

Post refrl cr Nil

 

Total 8XXX.XX

 

If you have not paid payment within the last 6 years or acknowledged the debt to Marlin then the claim is now statute barred and you would submit a different type of defence.

So its worth checking to try and see if a payment was made.

[girlandlurchers]

There is nothing whatsoever on the credit reference file and I have never acknowledged the debt with Marlin. Indeed, III didn't know Marlin were chasing me, most if last year was spent in a protracted wrangle with my house purchaser and the seller of the house where I now live! I was paying everything by direct debt until about 2008 when I was really poorly with the cancer. At that time my bills were spiralling and I couldn't work so was paying bills by cheque/online. I am sure that this debt won't be time barred but it will be a close run thing. The only other thing I would say is that I'm not confident in their figure, the credit card would have been high because of all my health problems but I really don't think it would have been £8k.

[girlandlurchers]

ok, should be back home by 21:00 tonight and so will file the document then, presumably you have until midnight on the day it is due to file? if not, Im sunk unfortunately. thank you for all your help.

[citizenB]

Yep, you have until midnight tomorrow - 18.02.2014 - to submit this

[girlandlurchers]

Hello there, thank you for all your help with this but unfortunately the government gateway appears to be down at the moment so I cannot register the defence. in fact I cannot register as a user, I have been trying for half an hour without success. Regrettably this mans we are out of time in this one so it looks like Restions may well get a judgement by default.

 

Many thanks once again

[girlandlurchers]

Just checked back with the online claim website and it seems the site will be unavailable from 21:00 on Monday 17th Match until 00:59 Tuesday 18th March 2014, so that it that it would seem.

[girlandlurchers]

As you will see from my posts this evening the government gateway is down until 00:59 tomorrow evening. I have no way of getting the defence to them the post will miss the deadline and the online gateway is unavailable. Presumably they can say tough luck then.

[AndyOrch]

You have until midnight tomorrow (18/03/) submit it tomorrow by email.If its their fault allowances will be made irrespective.

 

Have you redrafted a defence?

 

Andy

[girlandlurchers]

Thank you for that, sorry, was upset last night and had a bit of a rotten day at work. May I ask , would you know who the correct person is to send the email to? I can find no no email address to contact the court with and there is no other way to submit through the Money site. Am very worried that they will quibble, do you think I should send a copy through the post anyway saying it has already been submitted by email, if I can discover who to send it to.

[AndyOrch]

Can you post your intended defence here first girlandlurchers whilst I check it over.

 

Regards

 

Andy

[panther12]

00:59 was 1 minute to 1am this morning, you have untill midnight tonight but even if it's late you don't automatically get a default judgement untill the other side request it

[citizenB]

girlandlurchers, I would suggest you telephone the court - the number is on the claim form. Advise that because of their maintenance, you are unable to access the MCOL and can you please have an email address.

 

[girlandlurchers]

thank you for all your help Andy, am in teabreak time but am finishing early today so feel a little bit more cheerful about life in general. The defence you provided me with has been modified where appropriate and is shown below, your thanks in all of this is much appreciated

 

1. Particulars of Claim

 

The claimant claims payment of the overdue balance due from the defendant(s) under a contract between the defendant(a) and marks and spencer

 

1.The Claimant claims payment of £8XXX.XX the overdue balance due from the Defendant under a Contract between the Defendant and the Marks and Spencer Financial Services.

2.This debt was Assigned to/Purchased by MARLIN EUROPE I LIMITED on 20/02/2013

3. Particulars of Claim:

Marks and Spencer Financial Services A/C ****************

23/01/2014 DEFAULT BALANCE 8345.55 Posr Refrl Cr NIL Total> 8XXX.XX

 

Defence

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is noted. I have in the past had financial dealings with Marks& Spencer Financial Services .

 

3.Paragraph 2 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served last year from either the Claimant or Marks and Spencer Financial Services.

 

4.It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

5. On receipt of this claim I requested by way of a CPR 31.14 request and a section 77/78 for copies of any documents referred to within the Claimants particulars to establish what the claim is for. To date they have failed to comply to my section 77/78 request and remain in default and with regards to my CPR 31.14 request have stated that they are under no obligation to disclose any documentation on which their claim is based.

 

6. As per Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

7. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82 A of the Consumer Credit Act 1974.

 

8. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Thank you once again,

Edited March 18, 2014 by Andyorch
Edited and formatted

[girlandlurchers]

thank you so much Panther12, my mind was in such a muddle last night and I went into meltdown and panic mode. As soon as I am home it looks as if the defence will be able to be filed. will check the site as soon as. many many thanks

[girlandlurchers]

just about to post my defence now, hope that it is OK, thank you once again

[girlandlurchers]

Am just posting my defence, van anyone tell me whether to tick yes or no in the counterclaim box. can I make a counterclaim?

[girlandlurchers]

Counterclaim seems very complicated so have decided not to make a counterclaim. At the moment Restons are not even communicating with me so a counterclaim seem like it may not be worth doing.