old HSBC OD prev settled by F&F to Westcot - now MKDP Claim Form***Claim Struck Out***

[xedbot]

Need some help on this one as I have done lots of searching and can not find a case that is similar to mine so would appreciate some guidance.

 

Brief Summary:

 

29/04/2011 - I defaulted on a HSBC Current account overdraught with an outstanding balance of £1780.09 (which was mostly my own debt and not made up of charges/interest)

 

16/04/2012 - after being pursued for the debt for months (with no acknowledgement from myself) I was offered a reduced settlement figure of £1,068.05 (60% of original balance) from Westcot Credit Services LTD at which point I decided I had enough of burying my head in the sand and I coughed up and paid via their website in full. This payment is the only contact I have had with any DC at all.

 

29/01/2013 - I start receiving letters from MKDP/Raven/Compello demanding payment for £712.04 which just so happens to be the difference between the original balance and the reduced settlement figure. I ignore these letters because I believed they were just trying to spoof me into paying more money. As far as I am concerned I have acknowledged the debt (with Westcot) and paid in full and final settlement to close the account. The Default on my CR also changed from HSBC to MKDP a few months after this.

 

16/04/2014 - To my horror a Claim From from Northhampton CCBC landed on my door step the morning claiming payment of £712.04 + £55 costs. The claim form is dated 11/04/2014

 

I intend to dispute the whole claim on the basis that I have already settled this debt with a previous claimant and they are essentially, and wrongfully pursuing a debt that does not exist and that they have no claim to.

 

The main issue I have is that due to a recent house move I no longer have any of the letters from Westcot or MKDP etc. In particular I can't find the original letter offering the reduced settlement offer from Westcot. I do have receipt for the payment however.

 

I also need help in wording a suitable defence, taking into account the above as I have no idea where to start.

 

Your help is very much appreciated.

Edited April 17, 2014 by xedbot

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**

[AndyOrch]

I would simply defend it on the grounds of payment made pursuant to a Full and final settlement with Wetcloths...

 

Regards

 

Andy

[xedbot]

Name of the Claimant: MKDP LLP

 

Date of issue 11 Apr 2014

 

What is the claim for:

The Claimant claims the sum of 712.04 being monies due from the Defendant(s) to HSBC Bank plc under a bank account facility regulated by the Consumer Credit Act 1974 and assigned to the Claimant on 29/01/2013.

The Defendant(s) account number was xxxxxx/xxxxxxxx. It was a term of the bank account that any debit balance would be repayable in full on demand.

The Defendant(s) has failed to make payment as required by the statutory default notice served by HSBC Bank plc.

The Claiment claims the sum of 712.04 and costs.

The Claiment has complied, as far as is necessary, with the Pre-Action Conduct Practice Direction.

 

 

What is the value of the claim? £712.04 + £55.00 court fee

 

Has the claimant included section 69 interesticon (8%)within the total claim or is it shown separate within the Particulars but not added to the debt? ?

 

Is the claim for a current or credit/loan account or mobile phone account? current account overdraft facility

 

When did you enter into the original agreement before or after 2007? Before

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. Debt purchaser

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Not sure

 

Did you receive a Default Notice from the original creditor? Not sure

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Not sure

 

Why did you cease payments:- Forgot about account

 

Was there a dispute with the original creditor that remains unresolved? No

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt managementicon plan? No

[xedbot]

I'm am going to do the Acknowledgement of service online tonight with a view to defending the claim.

 

I have used the CPR31.14 letter template (with no amendments except for names/addresses/dates). Do I send this to the Claimants Solicitor? To the address on the claim form (MKDP LLP)?

Are there any other letters I should be sending?

 

I have requested a copy of the settlement letter from Westcot as well as a receipt for the payment "for my records" but doubt they will be in any rush to get these to me so will need to write my defence based on not having this evidence. I obviously have my bank statement showing the payment but doubt this proves anything full and final.

 

Is a 'plain english' defence ok? I have started with the following but am unsure of any other particulars I should be noting.

 

Westcot Credit Services Ltd, acting on behalf of HSBC Bank plc

contacted me via letter regarding an outstanding balance (current

account overdraught facility) of £1,780.09. This letter offered a

reduction of 40% off the total balance, to be paid in full to

settle and close the account.

The amount required to settle the balance under these terms was

£1068.05 which was paid in full by myself on the 16th April 2012

via Wesctot Credit Services Ltd website payment portal

(paywescot.co-dot-uk)

Recept information:

Westcot Debt Number: xx/xxxxxxxx

Transaction Number: x-xxxxxxxxxx-xxxx

Authorisation Code: xxxxxx

[sequenci]

You might want to read up on 'promissory estoppel' as it will REALLy help you out here.

[xedbot]

You might want to read up on 'promissory estoppel' as it will REALLy help you out here.

 

Thank you, that sounds like a very good basis of defence. Do you know of any instances where this has been used in a case similar to mine? Most of the threads I can find relate to people receiving money by mistake and not about debt.

 

Thanks

 

xed

 

***EDIT***

 

Just found this:

 

Promissory estoppel is not available when one party promises to accept a lesser sum in full payment of a debt, unless the debtor offers payment at an earlier date than was previously agreed. This is the rule formulated in Pinnel's Case, and affirmed in Foakes v Beer. This rule has, however, been thrown into doubt by the recent decision of Collier v Wright Ltd.

 

Can anyone shed any light?

Edited April 28, 2014 by xedbot

[AndyOrch]

Requirements of promissory estoppel:

 

 

1.A pre-existing contract or legal obligation which is then modified

2.There must be a clear an unambiguous promise

3.Change of position

4.It must be inequitable to allow the promisor to go back on their promise

 

1. A pre-existing contractual or legal obligation which is then modified:

 

Combe v Combe [1951] 2 KB 215

 

2. A clear and unambiguous promise.

 

 

This may be implied through conduct:

 

 

Woodhouse A.C. Israel Cocoa Ltd. v. Nigerian Product Marketing Co. Ltd. [1972] AC 741

 

 

3. Change of position:

 

Alan v El Nasr [1972] 2 WLR 800

 

 

4. It must be inequitable to allow the promisor to go back on their promise:

 

 

D & C Builders v Rees [1966] 2 WLR 28

 

Regards

 

Andy

[xedbot]

Requirements of promissory estoppel:

 

 

1.A pre-existing contract or legal obligation which is then modified

2.There must be a clear an unambiguous promise

3.Change of position

4.It must be inequitable to allow the promisor to go back on their promise

 

1. A pre-existing contractual or legal obligation which is then modified:

 

Combe v Combe [1951] 2 KB 215

 

2. A clear and unambiguous promise.

 

 

This may be implied through conduct:

 

 

Woodhouse A.C. Israel Cocoa Ltd. v. Nigerian Product Marketing Co. Ltd. [1972] AC 741

 

 

3. Change of position:

 

Alan v El Nasr [1972] 2 WLR 800

 

 

4. It must be inequitable to allow the promisor to go back on their promise:

 

 

D & C Builders v Rees [1966] 2 WLR 28

 

Regards

 

Andy

 

Hi Andy, thanks for you help so far. I have have spent most of the evening reading into promissory estoppel and think I have the basics including reading most of the relevant test cases.

 

I am really struggling with the finer points, specifically related to my case as it is not a simple A owes B money as there are 4 parties involved:

1. Myself the defendant

2. HSBC who the original contract/legal obligation was with

3. Wescot, acting on HSBC's behalf made the 'promise' of a reduced settlement figure to close the account. And the presumably assigned (sold) the debt to MKDP

4. MKDP the claimant

 

In all the relevant test cases I have read I keep coming across the statement that the 'promise' was 'not considered' and therefore promissory estoppel was not allowed.

 

I would like to base my defence on the following:

 

1. The debt was settled in good faith by myself in response to a letter from Wescot on behalf of HSBC. Wescot and/or HSBC have changed their position by allowing the debt to be assigned to MKDP.

2. MKDP have no claim over this debt due to the above. I am also sending my CPR31.14 letter to MKDP tomorrow as a backup and will put MKDP to strict proof over their claim just in case.

 

How do I apply the promissory estoppel to MKDP when the 'promise' was made before the debt was assigned to them?

 

This whole ordeal is extremely stressful as I genuinely feel like I have a valid defence but am unsure how to present my case to guarentee success.

Edited April 28, 2014 by xedbot

[AndyOrch]

Bump your thread as your defence date approaches and I will draft you a defence that contends promissory estoppel.

 

Regards

 

Andy

[xedbot]

Bump your thread as your defence date approaches and I will draft you a defence that contends promissory estoppel.

 

Regards

 

Andy

 

Thanks Andy, will do.

 

In the mean time is there anything else I should be doing (apart from lots of reading)?

 

I have contacted Wescot via email to try and get a copy of the reduced settlement letter but don't hold out much hope. They got back to me after a couple of days to confirm my DOB (to comply with data protection) but I have heard nothing in over a week. Should I SAR them?

 

I will send the CPR31.14 letter to the claimants solicitor (?) tomorrow.

 

Anything else?

 

Thanks again

 

xed

[AndyOrch]

Wetclots should have no need to try to withhold the letter but we will see. DSAR could flush it out but can take up to 40 days for a response so any information disclosed will be post defence.

 

Whenever a F&FS is agreed its vital that all written conformation is retained and any letter must be drafted in a way that confirms that.

 

Regards

 

Andy

[xedbot]

Bump your thread as your defence date approaches and I will draft you a defence that contends promissory estoppel.

 

Regards

 

Andy

 

Bump!

[AndyOrch]

What is your date to submit xedbot?

 

Regards

 

Andy

[xedbot]

What is your date to submit xedbot?

 

Regards

 

Andy

 

Hi Andy,

 

Claim form is dated 11/04/15 so have until Wednesday I believe. I was hoping to submit my defence tomorrow night to be safe. Thanks again

[AndyOrch]

No problem we can have a look at it tomorrow and finalise a draft.

 

Regards

 

Andy

[AndyOrch]

Any joy with the letter of conformation agreeing to the F&FS xedbot ?

[xedbot]

Any joy with the letter of conformation agreeing to the F&FS xedbot ?

 

Unfortunately not. I have had an email back from Wescot confirming recipept of the payment but they are being coy about the ffs confirmation. They probably don't want to land themselves in hot water for selling on the debt.

 

From all that I've read on this forum ( including many if your helpful posts) I think the promissory estoppel would be a long shot and would not stand up in my hearing.

 

That being said, if I put it in my defence - it might be enough to put off MKDP from persuing the claim. What are your thoughts?

 

I want to put them to strict proof over their claim in general anyway, and have no problem seeing it through to the end.

 

Xed

[AndyOrch]

Particulars of Claim

 

MKDP LLP

 

Date of issue 11 Apr 2014

 

1.The Claimant claims the sum of 712.04 being monies due from the Defendant(s) to HSBC Bank PLC under a bank account facility regulated by the consumer credit Act 1974 and assigned to the Claimant on 29/01/2013.

 

2.The Defendant(s) account number was xxxxxx/xxxxxxxx. It was a term of the bank account that any debit balance would be repayable in full on demand.

 

3.The Defendant(s) has failed to make payment as required by the statutory default notice served by HSBC Bank PLC.

 

4.The Claimant claims the sum of 712.04 and costs.The Claimant has complied, as far as is necessary, with the Pre-Action Conduct Practice Direction.

 

 

Defence

 

1.Paragraph 1 is denied as the account number claimed has already been settled by way of a Full and Final Settlement payment to Wescot Credit Services DCA, acting on behalf of HSBC's . Agreement was reached on a reduced settlement figure and the account was terminated.

 

2.Paragraph 2/3/4/ are denied for the aforesaid reasons and the claimant is estopped from changing its position by the first party (Wescot)

 

3. Notwithstanding the above it is denied that any monies are due to the Claimant and is put to strict proof to show otherwise.

 

4. Should the above be denied the Claimant is put further to strict proof;

 

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

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

 

6. On the alternative, if 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.

 

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

 

Regards

 

Andy

[xedbot]

Just thought I would give you all an update on this one.

 

 

After what seems like an eternity, I finally received a letter this morning confirming my case has been struck out.

 

Case was transferred to my local court where BEFORE allocation and hearing the claim,

the judge ordered the claimant to "file and serve full details of the basis as which the debt is still owed and of its assignment to the claimant"

 

MKDP failed to submit anything at all by the deadline and a quick phone call and follow up email to the courts secured the outcome.

 

Thank you to everyone that helped, and in particular Andy for the additional guidance and Defence draft.

 

A couple of follow up queries:

 

1. I understand MKDP can still appeal (stay?) the order and buy themselves a little more time.

What are the timescales for this?

Is there any other comeback for them in the future?

 

2. Is there any way I can get them to remove the default from my credit file?

 

Thanks again

 

p.s. I have made a donation to the forum for the help and guidance

[AndyOrch]

Excellent news...well done xedbot

 

Delighted that this has been resolved for you .

 

With regards to your questions they have 7 days to act on the order from the date of that order...but I doubt you will hear anymore.

Unfortunately the default remains until its 6th anniversary and will then disappear...just because the claim was struck out the debt remains.

 

 

Put this behind you now and enjoy the Xmas festivities...I will amend your thread title to reflect the outcome.

 

Well done.

 

Andy