Wescot taking me to court for MBNA debt ***STRUCK OUT***

[clayts]

Brief history :

 

MBNA credit card bill racked up by me in late 90s/early 00s

Did go onto a debt management plan with CCCS, although last payment was made in 2004-ish when I had to leave my job due to ill health - off for a good 5 years and unable to make any payments during this time

 

Made a couple of payments in 2008, last one in September 2008 (d'oh !)

 

Debt was transferred to Wescot in 2005 (see scans attached in post 3), but not a formal Notice of Assignment as far as I can see (indeed, the amount of the debt is actually missing).

 

Just checking all the correspondence I never seem to have been served with a Default Notice, either by MBNA or by Wescot (or Fredrikson, or Bryan Carter, or Nelson Guest).

 

Last contact was made by me in January 2009 with Bryan Carter who were acting, with an offer of repayment. No reply. Sent another offer letter. Reply came from Carters dated 2 Mar 2009 stating they'd been instructed to take no further notice and had closed their file.

 

Nothing until (a) a dodgy blank postcard a few weeks ago from Wescot addressed to 'the occupier' with the debt ref number and their phone number - no mention of Wescot on the card : breach of OFT Guidelines (but sadly post/franking stamp is unclear and thus it has no legible date) and (b) a threatogram from Nelson Guest dated 20 Sep 11 stating they had been instructed by Wescot - MBNA. And then © a County Court claim on Monday

 

Clearly I intend to defend this but need help with

 

(1) what I need to put in my defence (reference to lack of Default Notice, correct Notice of Assignment - I've never pursued a CCA, so presumably I need to pursue that too)

(2) what I need to request from Nelson Guest (presumably I need to use the CPR 31.14 here ?)

 

Help please !

Edited October 6, 2011 by clayts

[clayts]

Better links to documents here :

 

(1) Letter from MBNA telling me debt passed to Wescot

 

(2) Letter from Wescot telling me debt passed to them

 

(3) County Court particulars of claim

[clayts]

In the absence of advice I hope I've done the right thing - have acknowledged service, and sent a CPR 31.14 request to Nelson Guest asking for CCA, Notice of Assignment and Termination Notice, as these are all referred to in the POC.

 

Can anyone advise me whether there is anything else I needed to have asked for ?

[clayts]

No documents have turned up as yet and the 7 days expires tomorrow - should I call Nelson Guest and advise them I'm seeking an extension of time ?

[Dotty50]

What's happened to all the legal bods on CAG?!

 

Clayts, sorry I can't give you much assistance here but it will give your thread a bump I will also alert the site team as I am assuming your thread has been missed!

[rebel11]

Hi clayts

 

Sorry your post was missed.

 

Were you mis-sold PPI on this account? Have you had Penalty Charges to this account?

They should send you a CCA as part of your CPR31.14 request.

 

http://www.consumerwiki.co.uk/index.php/DCA:_Using_CPR_31.14_to_Your_Advantage

[clayts]

It does look as if I was charged PPI back in the day - I was going to keep my powder dry on this until this issue has been resolved.

 

I realised with horror that last night I'd sent the CPR 31.14 request to Nelson Guest when it should have gone direct to Wescott per the County Court claim. Is it worth me ringing Wescott to find out whether it was forwarded or should I just send the CPR 31.14 request again - I'm mindful of the time limits on this one.

 

To summarise, they are relying on the CCA, the Termination Notice (never issued) and the Notice of Assignment (incomplete as does not state an amount, and was not sent recorded delivery) in their POC so I clearly need these documents.

[clayts]

Just to clarify the timetable :

 

Issue date of claim : 29 Sep 2011

Acknowledged service, sent 7 October 2011

CPR 31.14 letter sent to Nelson Guest recorded, 7 October 2011

 

Service date : 29 Sep 11 + 5 = 4 Oct 2011

Acknowledgement due date = 18 Oct 2011

Defence to be filed by 1 Nov 11

[rebel11]

I would ring them up, see what they say as, but it might be a good idea to send off a CPR31.14 to Wescot, just incase Nelson Guest don't co-operate.

 

I think you need to use the mis-selling now, you need to work out how much is owed to you with interest, get it on a spreadsheet, you'll find them on the site. You might have to make some estimates.

 

It does look as if I was charged PPI back in the day - I was going to keep my powder dry on this until this issue has been resolved.

 

I realised with horror that last night I'd sent the CPR 31.14 request to Nelson Guest when it should have gone direct to Wescott per the County Court claim. Is it worth me ringing Wescott to find out whether it was forwarded or should I just send the CPR 31.14 request again - I'm mindful of the time limits on this one.

 

To summarise, they are relying on the CCA, the Termination Notice (never issued) and the Notice of Assignment (incomplete as does not state an amount, and was not sent recorded delivery) in their POC so I clearly need these documents.

[citizenB]

You need to get a CPR31.14 request off for any information that is mentioned in the POCs that you dont have.

 

BRB with more info

[citizenB]

Ok, timetable

 

Issue date 29/09/2011 + 5 for service = 04/10/2011 + 14 days to acknowledge = 18/10/2011 : 14 days for submitting defence (as you have advised you intend to.) = 01/11/2011

 

You need to telephone Wescot and ask for an extension of time under CPR15.5 - You will have two scenarios

 

1 - They agree verbally, but they MUST provide this to you in writing because it is your duty to inform the court and they wont just accept your word.

 

So.. if Wescott agree, then you ask them to confirm in writing. .. then you immediately confirm the conversation, date, name of person you spoke to .. as follows:

 

 

Dear Sir or Madam (or Name if you obtained one)

 

This letter is just to confirm the telephone conversation I had with your office today (DATE) .

 

Documents requested under CPR31.14 and CPR31.15 had not been received by me.

 

I therefore telephoned today in order to agree an extension of 28 days as per CPR15.15.

 

“Agreement extending the period for filing a defence

15.5

 

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part15.htm#IDAUXNTB

 

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.”

 

We have agreed a new filing date (DATE)

 

Please provide me with your agreement in writing in order for me to advise the court ASAP.

 

Yours etc,

 

The 2nd scenario is where they refuse. I seem to recall a thread just recently where they did indeed refuse.. so you will have to revert to plan B.

 

Which is to write to them saying that in view of their refusal to

 

A) Provide the information requested under CPR31.14 which they are obliged to do, and

B) Their refusal to extend the fililng date.

 

 

You have no alternative but to advise the court and make application in order to both have the court order them to provide this information and also to extend the filing date.

 

Yours etc..

 

 

Have a read of the document in the link below to see what options you have.

 

[ATTACH]30850[/ATTACH]

 

Meanwhile I will go and locate that other Wescott thread because I believe they were forced to discontinue because they didnt have the correct information.

 

 

[citizenB]

If Wescott fail to provide the documents requested, and refuse to offer you more time then within the link above you are advised to make application to the court for BOTH.

Below is a defence, also from that link above..

The Defendant is unable to plead due to the Claimant's failure to comply with its CPR 31.14 duties in disclosing requested documents

The Defendant is embarrassed at the lack of detail within the Claimant's claim and therefore cannot plead due to the Claimant's ongoing failures.

The Defendant reserves the right to amend this defence and intends to make an application to the court for an order compelling disclosure.

Then I think you need to submit to the court an application.. N244 requesting they order the Claimant to disclose both the documents and permit you more time in which to submit a properly pleaded defence.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?313730-Nelson-Guest-Wescot-County-Court-Claim-***discontinued-with-wasted-costs-***

 

Here you go.. the Wescott case that was struck out you need to read the whole thread.. somewhere the OP had to put in an order to the court in order for them to force Wescott to provide the information ..

[clayts]

Thanks - fantastic advice - I'll get on the blower tomorrow to Wescott.

 

Should I establish the amount of PPI now ? Having read that thread you refer to, I'm mindful that Wescott will not have the documents they intend to rely upon (although they did send an NoA there were no amounts specified - is this actually critical or has this not yet been established in case law ?) so it seems it could fall at the first hurdle. I was working on the assumption that I could file the PPI claim later, although if push comes to shove I could contest the amount owed in the defence if it gets that far.

 

Never even bothered CCA requesting these guys back in the day because it all went quiet after Bryan Carter's letter informing me their instructions were to close their file. Certainly I don't have a Termination Notice - how is that distinguishable from a Default Notice (which coincidentally I also do not have) ?

[clayts]

I should also add I successfully reclaimed £800+ in penalty charges from MBNA in 2006

[citizenB]

Thanks - fantastic advice - I'll get on the blower tomorrow to Wescott.

 

Should I establish the amount of PPI now ? Having read that thread you refer to, I'm mindful that Wescott will not have the documents they intend to rely upon (although they did send an NoA there were no amounts specified - is this actually critical or has this not yet been established in case law ?) so it seems it could fall at the first hurdle. I was working on the assumption that I could file the PPI claim later, although if push comes to shove I could contest the amount owed in the defence if it gets that far.

 

Never even bothered CCA requesting these guys back in the day because it all went quiet after Bryan Carter's letter informing me their instructions were to close their file. Certainly I don't have a Termination Notice - how is that distinguishable from a Default Notice (which coincidentally I also do not have) ?

 

PPI - I think you would have to obtain statements in order to establish the value of the PPI and produce a spreadsheet.

 

Do you have all your statements? If so, you could work out how much the PPI is and try and negotiate prior to this claim going any further. I guess you could just "happen" to mention that you will have a counterclaim for the mis selling of PPI!

 

I will ask if any one else has any thoughts on this.

 

You must first and foremost, attempt to get an extension in place as soon as you can.

 

Notice of Assignment, I think they must advise an accurate figure, although I dont know how critical this is.

 

The sequence of events is as follows:

 

You get a few letters saying you owe them. Then a default notice is issued. This has to be issued under s87(1). Give the correct value of arrears, the breach you need to remedy the default, give you the correct amount of time of 14 days (allowing for posting) in order to remedy the breach. Only if you fail to remedy the breach can then then take further action.. which would then be termination, letter before action, court claim.

 

If they have terminated WITHOUT a default notice then they could actually be on sticky ground as they are not permitted to ask for the full amount without having first asked for the arrears!

[dx100uk]

fill out a customer questionaire

http://www.financial-ombudsman.org.uk/publications/technical_notes/ppi.html

 

do an SOC [spreadsheet]

 

fire thos eoff to wetcloths.

 

hope it outweighs their claim!

 

dx

[clayts]

Had a reasonable discussion with Wescot this morning but didn't go as well as I hoped. They confirmed that Nelson Guest will have forwarded the letter to them but that it may take up to 30 days for them to action.

 

I pointed out I could not file my defence until I had the documents and requested an extension of time - at first they wanted me to file a defence with the Court stating I could not respond as I didn't have the documents. I stated that this was not my understanding of the correct procedure and that it was more logical for me to request an extension of time now, to allow them time to source the documents upon which they rely (in other words, pointing out me requesting it was good for them too !).

 

They would only agree to an extension of 14 days and confirmed they would put this in writing to me - in the meantime I have e-mailed the original CPR 31.4 request to them.

 

The problem is I was on a sticky wicket from the start regarding an extension of time due to my early blunder of sending the request to the wrong people.

 

I sent them an e-mail stating

 

Further to our telephone conversation today, please find attached a copy of the request, which was issued by myself to Nelson Guest and Partners on 8 October 2011, for copies of documents referred to in the Particulars of your County Court claim, number xx

 

As discussed, you confirmed that this letter will have been forwarded by Nelson Guest and Partners to your office for action.

 

I will write to you separately about our discussions regarding my requests for an extension of time in which to file my defence to the Court.

 

Is it worth me arguing that they really should give me 28 days rather than the 14 we agreed verbally, or should I just go with 14 for now and see where we are ?

 

 

[clayts]

I was thinking of writing something along these lines :

 

Further to my e-mail communication of 18 October 2011, in which I attached a copy of my request for copies of documents referred to in the Particulars of your County Court claim, you advised me that it may take up to 30 days to source these documents.

 

In that regard, we agreed in principal to an extension of time in which I could file my defence to the Court, extending the due date of the defence from 1 November to 15 November 2011 (although I should point out that the Civil Procedure Rules 31.5 stipulate an extension of time of 28 days can be agreed).

 

I have requested that you confirm this agreement in writing so that I may write to the Court to inform them of this. An e-mail confirming you agree to the extension of time in which I must file my defence to 15 November 2011, or preferably 29 November 2011, would be sufficient.

 

As discussed, I informed you that if agreement was not received, I would have to file an application to the Court for the following :

1) an order compelling the Claimant to disclose the requested documents

2) an extension of time not less than 28 days from the date of the order for filing my defence.

3) costs occasioned by the Claimant's failings to disclose pursuant to CPR 31.14 and 31.15.

 

I trust this will not be necessary.

 

I look forward to hearing from you in due course.

 

Yours sincerely

 

Just to clarify the call was recorded

[AndyOrch]

Stick with the 14 days Clayts I doubt very much they will respond to your CPR request.I would also advocate sending a section 78 request separately

to the Sols.

 

Andy

[citizenB]

I would agree with andy, clayts.. Wescott know exactly what they should be doing.. I find it ridiculous that letters would take up to 30 days to action.. If they are not aware of the CPR then they should employ someone who is!!

[clayts]

Excellent, thanks - I'll send them a letter confirming our agreement in principal to extend the time to 15 November and then await their response before notifying the Court.

 

Where do I stand with the 7 days in the CPR 31.14 letter as clearly they will have breached that ?

[citizenB]

Excellent, thanks - I'll send them a letter confirming our agreement in principal to extend the time to 15 November and then await their response before notifying the Court.

 

Where do I stand with the 7 days in the CPR 31.14 letter as clearly they will have breached that ?

 

Hmm, I wonder if you will need to submit an N244 application to have the court order them to provide the information.

 

Or do you enter a defence that simply states, that you are unable to enter a fully pleaded defence due to Wescloths not providing you with the information you require !!

 

Andy ??

[clayts]

Good question - the problem stems from me sending the darned 31.14 letter to Nelson Guest in error, so I have no way of knowing when they will receive that from them - the person I spoke to said he hadn't received it up to yesterday but that it could be in today's post.

 

I suspect the best way forward for me is to follow the procedure set down, namely extract the written confirmation that they agree to the extension of time, and threaten a court order if they fail to provide me with it :

 

This is what I intend sending them by recorded tomorrow :

 

Further to my e-mail communication of 18 October 2011, in which I attached a copy of my request for copies of documents referred to in the Particulars of your County Court claim, (name of employee) at your office advised me on the telephone on 18 October 2011 that it may take up to 30 days to source these documents.

 

In that regard, (name of employee) and I verbally agreed in principal to an extension of time in which I could file my defence to the Court, extending the due date from 1 November to 15 November 2011.

 

I have requested that you confirm this verbal agreement in writing so that I may write to the Court to inform them of this. An e-mail confirming you agree to the extension of time in which I must file my defence to 15 November 2011 would be sufficient.

 

I should point out that if such a written agreement is not received in writing within the next seven days, I will have to file an application to the Court for the following :

 

1) an order compelling the Claimant to disclose the requested documents

2) an extension of time not less than 28 days from the date of the order for filing my defence.

3) costs occasioned by the Claimant's failings to disclose pursuant to CPR 31.14 and 31.15.

 

I trust this will not be necessary.

 

I look forward to hearing from you in due course.

 

Yours sincerely

[clayts]

Although, I e-mailed it to (name of employee) today (plus got a read receipt), so we could argue the 7 days runs from today