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

[clayts]

I reckon I'll stick with what I've got then, although I might just add a reference to the SRA on there too when I mention escalation

Edited March 27, 2012 by clayts
typo

[clayts]

Complaint sent today by recorded delivery, with a few minor amendments to the text (and additional references to escalating to the SRA) but nothing major altered - light blue touch paper and stand back...

[clayts]

Final complaint

 

(1) Background

 

Wescot SPV Limited (‘Wescot’) brought a claim against myself in Northampton County Court Bulk Centre on 29 September 2011, case number xxxx

 

The proceedings alluded to certain documents which Wescot intended to rely upon in support of their claim.

 

Despite requesting sight of these documents, and mutually agreeing a timetable with Wescot enabling them ample time to provide the documents, it became necessary for myself to apply to the Court to issue a General Directions Order to seek possession of the documents in order that I could prepare my defence to the Court claim.

 

The Court issued an Order on 6 December 2011, directing Wescot to produce the documents by 20 December 2011 (copy enclosed for reference).

 

Wescot failed to produce the documents within the timescale and on 21 December 2011 the Court struck out Wescot’s claim.

 

(2) Details of Complaint

 

My complaint relates to three letters issued by Wescot Credit Services Limited on 10 December 2011, 22 December 2011 and 31 January 2012, copies of which are attached for your reference.

 

The two letters issued in December 2011 contain information which is a direct breach of the OFT Debt Collection Guidance.

 

The letter issued in January 2012 contains inaccurate information about the legal standing of Wescot in this matter.

 

I shall now expand further, looking at each letter in turn.

 

 

(a) The letter of 10 December 2011 notes in the opening paragraph :

 

As you have failed to respond to our attempts to contact you and agree repayment of the above account, a County Court Judgment (CCJ) is now registered against you for the full amount shown above. You should have received a copy of the CCJ from the County Court.

 

This is factually incorrect as the Court has never issued such a Judgment, and confirmed this with me.

 

This statement is a direct breach of the OFT Debt Collection Guidance, namely Section 3, Unfair or Improper Business Practices: False representation of authority and/or legal position, which states

 

3.5. Examples of unfair or improper practices are as follows…

 

… (e) falsely implying or stating that action has been taken when it

has not (For example, stating that civil action has been taken when it has not or that a court judgment has already been obtained when it has not

been.)

 

(b) The letter of 22 December 2011 notes in the opening paragraph

 

You have failed to pay in accordance with the terms of the County Court Judgment. Unless this default is paid within the next 7 days, the claimant may commence enforcement action….

 

…Further, an application may be made to the Court for an Order for Questioning. This would result in court documents being personally served on you, ordering your attendance at your local County Court…

 

Again, these two statements are factually incorrect and are a direct breach of the OFT Debt Collection Guidance referred to at (a) above.

 

You will note that the dates of both letters relate to the period just after the Court had issued the General Directions Order of 6 December 2011.

 

By the date of this second letter, Wescot had in fact already failed to comply with the Court’s Order of 6 December 2011 and by definition their claim had been already been struck out by the Court, which gave them no legal right to pursue the debt.

 

I do concede that both of these letters are apparently computer produced but they are ‘signed’ by S de Tute, who I understand is a solicitor and also the President of the Credit Services Association. I find it incredible that Sara de Tute would be putting her name to such letters, which so clearly fall foul of the OFT Guidance.

 

© The letter of 31 January 2012 encloses the documents which were Ordered by the Court on 6 December 2011, over a month later than the deadline date. The documents are now purely academic as the Court claim has been struck out.

 

The letter notes that

 

We have the option of an Application to the Court to have the action re-instated or issuing a fresh Claim exhibiting, in evidence the Documents we have enclosed

 

On the first point, this is factually incorrect – it would not be possible for the Court to reinstate the Claim. The General Directions Order of 6 December 2011 clearly states that

 

This order has been made without a hearing under the Courts case management powers contained in the Civil Procedure Rules Part 3. You may within 7 days of the service of this order, apply to the Court to set aside or vary the order under Part 23 Rule 10…

 

As no such application was made within 7 days, the option for Wescot to apply to set aside the Court’s General Direction Order has long passed.

 

On the second point, whilst it may be technically possible for Wescot to issue a fresh Claim, the claim would be vigorously defended by myself under Res judicata, in that it is not possible for a Claimant to bring the same proceedings again when a decision (in this case, the first claim being struck out) has already been made.

 

Once again, Wescot have breached the OFT Debt Collection Guidance namely Section 3, Unfair or Improper Business Practices: False representation of authority and/or legal position, which states

 

3.5. Examples of unfair or improper practices are as follows…

 

…(b) falsely implying or stating that action can, or will, be taken,

when legally it cannot be taken

 

(3) Resolution

 

I propose the following resolutions to this complaint :

 

(1) With reference to the letters of 10 and 22 December 2011, I seek your written assurances that you will review your procedures to ensure that other customers are not issued with the same erroneous computer-produced letter(s) whilst legal proceedings are still underway (unless of course a County Court Judgment has actually been issued by the Court)

 

(2) With reference to the letter of 31 January 2012, I seek your written assurances that :

 

• Wescot will not be pursuing this matter in the Court in the future

• Wescot will be closing the matter

• Wescot will be removing any adverse information entered by them on any Credit Reference Agency records about myself during the time they were assigned this debt

 

 

Should this matter not be resolved to my satisfaction, I shall have no alternative but to escalate this complaint with the Office of Fair Trading and the Solicitors Regulation Authority, which could result in financial penalties being imposed upon your organisation. I trust this will not be necessary.

[Andyorch]

Very good Clayts like to be a fly on the wall when that lands:wink:

 

Andy

[clayts]

Yes, unluckily for them my day job is dealing with complaints for a housing association

[clayts]

Got an acknowledgement at last - their policy gives them 4 weeks to respond or to ask me for more time up to a maximum of 8 weeks....

 

Ho-hum - this one will run on a bit longer than anticipated, but I do need to exhaust their policy before escalating.

[Andyorch]

" but I do need to exhaust their policy before escalating." .......key!!!!!

 

Andy

[clayts]

Complaint upheld, apology received for the two letters sent in error and, more critically, 'the decision was then taken that the account would be closed on our system and no further contact would be made to you'. They didn't actually tell me that any time, but this is the outcome I wanted, so I'll stick with that, thanks They also stated that the account defaulted in August 2005 (I wasn't ever told this by anyone) so that should have dropped off the record now (I'll do an Experian check). Result.

 

Right, now for my PPI reclaim then.....

[citizenB]

Oh well done, Clayts

[Andyorch]

Result Clayts:thumb:

 

Well done

 

Regards

 

Andy