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

[AndyOrch]

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 ??

 

 

Consider application nearer the time and after compliance date but not too close to the defence submission time.

 

Andy

[clayts]

Yes, I think I'll see where I sit next Tuesday (assuming by then I have extracted the agreement from them for the extension of time to 15 November). By then they will have had the 31.14 request for 7 days, so by rights I could issue an order at that stage.

 

Let's see what the next 7 days brings - I'll keep you posted.

 

Thanks for your continuing help everyone, much appreciated.

[clayts]

Not quite sure what they've done here, but they don't seem to have agreed to an extension of time, rather an extension to suit them

 

 

I'm minded to fire off another letter (following the one I sent yesterday above) advising them to clarify their position : I certainly didn't agree to an extension of tiume for them.

 

How does this sound ?

 

Thank you for your letter of 18 October 2011 which appears to have crossed in the post with my letter of the same date.

 

I am seeking clarification on two issues :

 

(1) Firstly, you state that you will require up to 30 days in which to comply with my request for documents, originally sent to Nelson Guest and Partners on 8 October 2011, and e-mailed to your office on 18 October 2011. My request clearly stated that should you not be able to comply with your duties under the Civil Procedure Rules (CPR) 31, that is by supplying the documents within 7 days, that you should notify me in writing. In that regard, am I correct in stating that you are requesting an extension of time until 15 November 2011 to source these documents ?

 

(2) Secondly, if (1) above is true, my request of 8 October 2011 informs you that your duties also require you to accompany such a request with a statement that you agree to an extension of time for me to file my defence. Your extension of time must not be less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence. By my calculations I believe the new date for filing my defence would be 29 November 2011. Please could you confirm whether this is indeed what you agree.

 

Please state your intentions clearly and in writing. As previously stated in my letter to your office of 18 October 2011, if my previous request under CPR 31.4 of 8 October 2011, and e-mailed to you on 18 October 2011, is not complied with by 26 October 2011 (or a letter received from you stating a revised timetable) then I shall have no option but to make an application to the Court for an Order

Or should I just head straight for an Order ? What do you lovely people think ?

[citizenB]

IMHO, that letter should be sufficient to send to the court, however, I am rather surprised that they have admitted in writing that they started this claim WITHOUT having the documents in their possession!!

 

Might be worth seeking andyorch's opinion on this.

[AndyOrch]

Hi Clayts.

 

I personally would ring them tomorrow re the above letter and request a 28 day extension to your defence submission date pursuant to CPR 15.5

considering it will take them to 30 days to retrieve documentation to prove either claim.Ask them to email conformation to you and then inform CCBC with copy of their agreement attached.If they still have not complied by the 30th Nov, then make application, your in no rush.

 

Regards

 

Andy

[clayts]

Thanks Andy - I'll give them a tinkle

[clayts]

Knew I wouldn't be able to call them today due to other commitments (I run a hedgehog rescue and had to take two little darlings to the vets this morning, and am at work in the PM) so fired off this e-mail to them :

Thank you for your letter of 18 October 2011 (which crossed in the post with my letter of 19 October 2011) in which you state that it will take up to 30 days from that date to source the documents on which your claim to the Court depends.

 

I have treated your letter as a request for an extension of time until 15 November 2011 in which to provide the documents to me.

 

Pursuant to Civil Procedures Rule 31.5, I am therefore writing to request an extension of a further 14 days from that date, namely 29 November 2011, in which to file my defence with the Court.

 

Please confirm by immediate return of e-mail that you are in agreement with my request for an extension of time, in order that I may notify the Court accordingly of the agreed revisions to the timetable.

 

As my defence is currently due to be filed by 1 November 2011, if such a request is not forthcoming by immediate return of e-mail I will have no alternative but 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.

 

No reply, so I shall await tomorrow's post - if nothing received I'm heading straight to an application for an Order. Does this seem sensible ?

[citizenB]

Yep

[clayts]

Pleased to say the e-mail worked, and Wescot have now agreed to the revised timetable - letter sent to the Court.

[AndyOrch]

Ok Clayts inform Northampton by email and attach a copy of their response.Check later to make sure CCBC have received.

 

Andy

[clayts]

Sent it by recorded delivery - here's what I said :

 

Agreement for extension of time in which to file defence

 

I am writing to inform the Court that the parties to the above case have agreed a revised timetable to allow the Claimant time to source the documents upon which they wish to rely on in their Particulars of Claim.

The revised timetable is as follows :

By 15 November 2011, pursuant to CPR 31.14, the Claimant is to disclose and produce to the Defendant a verified and legible copy of each of the documents referred to in the Particulars of Claim, namely :

· The agreement

· The termination notice

· The assignment

By 29 November 2011, pursuant to CPR 31.15, the Defendant is to file their defence with the Court.

Please find enclosed copy correspondence confirming the Claimant’s agreement to this revised timetable, by way of a letter dated 18 October 2011 and an e-mail dated 26 October 2011.

In that regard, I would be grateful if the Court would agree to a stay in proceedings until 29 November 2011.

I look forward to hearing from you in due course.

 

Nice rest now for a few weeks whilst Wescot/MBNA search high and low for the documents, particularly the default/termination notice and a valid notice of assignment...

 

In the meantime, have sourced all my statements so will calculate PPI in readiness for my defence

[clayts]

Just to add I copied to Wescot too so there can be no avoidance of doubt

[citizenB]

That should sort it

[clayts]

Well the clock is tick-tocking and nary a sniff of the requested documents - is it time to apply for an order ? Wescott have until close of play tomorrow to provide the documents.

 

Presumably, if I get nowt, I'll have to request an order and submit an embarrassed defence ?

 

I'll draft up the order and post here for advice if I hear nothing tomorrow.

[citizenB]

Well the clock is tick-tocking and nary a sniff of the requested documents - is it time to apply for an order ? Wescott have until close of play tomorrow to provide the documents.

 

Presumably, if I get nowt, I'll have to request an order and submit an embarrassed defence ?

 

I'll draft up the order and post here for advice if I hear nothing tomorrow.

 

There is every chance they have left it till the last minute.. but if it were me, I would be ready to submit the order the day after they were due to comply

[clayts]

Chronology for reference only

 

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

CPR 31.14 letter e-mailed to Wescot, 18 October 2011

Letter from Wescot dated 18 October 2011 advising they needed 30 days to 15 November 2011

E-mail to Wescot dated 24 October 2011 treating their letter 18 October 2011 as request for extension of time and requesting extension of time for defence to 29 November 2011

E-mail from Wescot 26 October 2011 agreeing to 'put account on hold until 29 November 2011', treated as agreement

Letter notifying court of agreed revised timetable sent recorded, 26 October 2011

15 November 2011 - no documents produced by Wescot

 

 

Here's what I propose to put on the N244 :

 

An order that unless within 14 days of the making of an order upon this application the Claimant complies with requests made by the Defendant on 8th October 2011 and 18th October 2011 pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the termination notice [3] the assignment, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

and the draft Order I intend enclosing

 

[1] Unless by 4:00pm on (Court to direct) the Claimant complies with requests made by the Defendant on 8th October 2011 and 18th October 2011 pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the termination notice [3] the assignment, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[2] the Claimant shall pay the Defendant his costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on (Court to direct) and subject to an extension being allowed.

[ii] the Claimant shall pay the Defendant his costs of this application [in any event][assessed in the sum of £130.00]

 

I will of course send the relevant copy documents.

 

Is this sufficient ?

[citizenB]

That looks ok to me. Just one thing, your chronology shows you having dated the request as 7th October.. however you have put 8th in the application. Might be a good idea to be consistent.

 

It might be worth waiting for andy to give it the once over.

[clayts]

Quite right - it was sent 8th October not 7th October so the Order is right

[AndyOrch]

Good to go Clayts:wink:

 

Regards

 

Andy

[clayts]

Not heard from the Court yet about my Order, but defence is due on Tuesday, so I intend just stating this :

 

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

 

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

 

The Defendant reserves the right to amend this defence and on 17 November 2011 made an application to the court for an order compelling disclosure.

 

Is there anything else I need to add at this stage or is that good to go ?

 

I will ring the Court on Monday before sending this off to check they have at least received my application - last time I spoke with them they said they had a 6 day backlog, which may be why my Order hasn't been processed yet

[clayts]

Court confirm App for Order gone to a District Judge on 22 Nov 11 but probably won't be signed sealed and delivered until the end of next week. They have confirmed I can file a holding defence - is the one above sufficient ? I need to file it by tomorrow (will use MCOL)

[citizenB]

andyorch is online, clayts.. send a pm and ask him just to confirm if that is ok.

[AndyOrch]

Hi Clayts

 

I would just add " The Defendant is unable to plead due to the Claimants failure to comply with its CPR 31.14 duties in disclosing requested documents

 

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

On the 17th November 2011 I the Defendant made application to the court for an order compelling disclosure to enable verification of the Claimants Claim.

This defence being made as advised by CCBC until such time the application is processed.

The Defendant reserves the right to amend this defence. .

 

Regards

 

Andy

[clayts]

Excellent Andy - thanks very much.

 

Defence lodged on MCOL. Fingers crossed for a crumbling claimant....

[clayts]

Order issued - Wescot have until 20 December before strike out...

 

Tick tock