Westcot Summons (MBNA claim)

[stressedout]

My OH has received a Court Summons from Westcot regarding a credit card he originally had with Abbey National, which I understand is really MBNA.

To cut a long story short I have been on another consumer site, sent of AS defending claim and fired off letters requesting certain info under CPR 31.14 and 18. To date no info has been forthcoming.

Now I have been getting a bit confused I think with submitting a holding defence.

My OH is fairly certain that no payments have been made for at least 6 years. Indeed I have found paperwork that states last payment was in Feb 2003. Although I have found nothing newer, that doesn't mean to say that no further payments were made. I was advised to submit a defence on the grounds that the alleged debt was statue barred.

My confusion is that we cannot be 100% certain that it is SB. I was thinking that I should submit at this stage a defence on the grounds of a holding defence in that we have no other documents to go on as Westcot have not complied with the request.

Also, POC do not state that the claim is under a CCA 1974. I have read somewhere else that the POC have to state this. Is this correct? They are also claiming interest under s59 of the CCA 1984 and again, I have read they cannot do this.

Any advice on this would be appreciated. Defence has to be filed by 29 December

[Curlyben]

Re: Westcot Summons (MBNA claim)

Thanks for the limited information you have given, but we really need more.
Which other site have you been receiving help on and why haven't you asked them ??
Could you please type/scan the POC as stated.

SO far it does sound as though a holder would be in order, especially, as I suspect, this is an action out of Northampton.

Better to get it to a real court before you enter anything substantial and ask for directions etc..

[stressedout]

Re: Westcot Summons (MBNA claim)

Yeah, sorry I was trying to be brief in my haste!

I was advised to put in a holding defence and also to say it was SB. I think I'm confusing myself because of the SB aspect and I was just trying to get as much correct info as I could. I'm in no way saying the advice given is not good. As I say, I think I'm just confusing myself!

POC state:

"The claimant claims for sums due under a/various credit card agreement(s) entered into between Maryland Bank National Association (MBNA) and the Defendant. The rights of Maryland Bank National Association passed to the Claimant pursuant to an assignment dated 19/11/03 between Maryland Bank National Association and the Claimant. The agreement (s) was/were terminated upon the Defendant failure to comply with the terms of the Agreement (s) and or the statutory Notice of Default served by Maryland Bank National Association.
And the Claimant claims:
Credit card account xxxxxxxxxxxxxxxx balance of £5,132.87 as of 19/11/03. Interest under s69 of the County Court Act 1984 at the rate of 8% a year from the assignment date to 26/11/09 of £2,473.90 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 1.13 and costs."

Claimant is stated as being Wescot. I can find no notice of assignment to Wescot from MBNA.

It's fair to say that OH has had the odd letter from Wescot every now and then, I think at one point he did write to them, but what that letter said and when it was I have no idea as we cannot find a copy.

[Curlyben]

Re: Westcot Summons (MBNA claim)

As I mentioned earlier, best to put in the holder to get it into a real court for action.

I find this one works well:

Defence
1.The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR.


2.Even making allowance for the Northampton Bulk Regime the claim fails to disclose sufficient information as required by the CPR, there is no reference to any account number, no date of alleged agreement, no date of alleged default or details of any default notice served in accordance with s87 (1) Consumer Credit Act 1974, the claim is missing vital information.

3. Without admission that any cause of action is shown by the Claimant it is denied that the Claimant has a claim whether as pleaded or at all.

4. No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon

5. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimant’s claim appears without merit

6.Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

So here's the plan:

1. file basic defence (above)
2. write to the court pointing out the failure of the claimant to comply with their CPR 31.14 obligations
3. write to the other side and tell them what you have done.

As and when it is transferred from Northampton then you can think about entering a complete defence and possible directions..

ADDITIONAL: Was any acknowledgement made to Wescot of this debt at any point ??

[stressedout]

Re: Westcot Summons (MBNA claim)

Many thanks - that's what I'll do then.

ADDITIONAL: Was any acknowledgement made to Wescot of this debt at any point ??

Now that I'm not entirely sure of! I think at some point my OH spoke to them on the phone until I told him to stop, but that was some time ago - at least 4 years, maybe longer. I can't find any copies of letters that were from him to Wescot, only a statement from Abbey stating last payment was in Feb 03, which was why I was going along the lines of it being SB.

[Curlyben]

Re: Westcot Summons (MBNA claim)

If you want you can add this to the holder:

6. Under section 5 of the Limitation Act 1980 I believe that this action is Statute Barred as the SIX year time limit has been exceeded.
7. The claimant is put to strict proof that this action is possible and within the prescribed time limits.

I'd put this in as 6 and 7 and renumber 6 to be 8.

Hope that makes sense.

[stressedout]

Re: Westcot Summons (MBNA claim)

It does, Curlyben, thank you.

[stressedout]

Re: Westcot Summons (MBNA claim)

Update on this continuing saga!

No response at all to CPR 31.14 and 18 requests from Wescot. Letter from Court in early January saying Claimant had until 29 Jan to respond to hubby's defence. No response so far.

Hubby had letter from Court today transferring case to local Court and an Allocation Questionnaire. Now, not sure really how to deal with this bearing in mind no documents to rely on and no response from Claimant.

Any advice on next course of action would be greatly appreciated. Should we bring to Court's attention that Claimant has failed to comply with CPR requests?

[stressedout]

Re: Westcot Summons (MBNA claim)

Some further guidance on this would be appreciated.

Update is - order received from the Court dated 11 February stating that the Claimant's claim would be struck out by the 5 March unless they produced a detailed statement of claim because the Court said the particulars were inadequate.

We eagerly awaited the 5 March and what dropped on the doorstep on the 6 March? Yep a witness statement from Wescot!!

The statement attaches an alleged copy of the original agreement. Now correct me if I'm wrong, but shouldn't the alleged original agreement have the address at which we lived at at the time the agreement was taken out? It has our current address on, so surely that is not a copy of the original agreement. Also, it is not signed, and it's so small it's really hard to read.

Also attached is a typed list of alleged payments made to the credit card the last one being on the 11 April 2005. There is no bank tracking records which we have asked for - anyone could have typed that list. As far as we are concerned it doesn't prove a thing.

They also claim in the statement that they do not have a copy of the original assignment to Wescot, but they can produce a duplication. How is this so, if they don't have the original?

They are also stating that under the Data Protection Act that documents should not be retained for longer than is necessary. Therefore they are of the opinion that because no dispute was raised prior to the Summons being issued, hubby does not have a case and just because they don't have original documents does not mean that the money is owed.

They have also stated that they do not have the original default notice but in accordance with standard practice, a default notice was issued. It is their position that all payments are overdue.

We received another order from the Court that states that unless we file a full particularised defence by the 26 March, the holding defence will be struck out and the Claimant awarded judgment.

To say that we are flabbergasted is an understatement How on earth can a full defence be entered if we have not received any of the documents that have been requested in our CPR requests.

I apologise for the long post, but hubby is really worried now that this is a major stitch up by Wescot and the Courts have fallen it.

I have drafted a fuller defence really just pointing out Wescot's failure to comply with the CPR requests and the rubbish they have exhibited as "evidence" of their claim.

I would just appreciate some extra guidance (I know its short notice) on whether this is the correct thing to do or not. I'm taking it to the Court tomorrow.

[Kafka]

Re: Westcot Summons (MBNA claim)

Can you itemise now the main points of the defence that you want to submit?

What did you submit in the Allocation Questionnaire?

There is very little time to get this ready for tomorrow and you must supply all the details

[stressedout]

Re: Westcot Summons (MBNA claim)

My main points are:

1. they have exhibited generic terms and conditions as the "executed agreement". No signature box, no credit limit, nothing in fact! Address is not the address we lived at at the time.

2. Also exhibited is a typed of list of alleged payments that hubby is supposed to have made. I have stated that this is not proof of payment.

3. The main body of the defence points out the failure of the Claimant to comply with the CPR requests and so we still have no documents on which to issue a full defence.

I have read that its almost impossible to submit a full defence without any documentation yet that is what the court ordered.

Attached to the AQ was draft directions suggesting that the court order the Claimant to produce the documents requested. All they have sent is the alleged T&C and the typed list of payments as their evidence!

We have also requested in the defence a full breakdown of how they have arrived at the figure they have.

We have requested a strike out on the basis of the Claimant's failure to produce the documents therefore cannot defend it properly.

Obviously I've been trying to deal with this myself by looking at other sites, research, etc, but I'm not really sure I've done down the right road.

[Kafka]

Re: Westcot Summons (MBNA claim)

What were the directions issued by the court following Allocation? Can you post these up?

How do you plan to get this ready if it has to be in by tomorrow (4:00?)?

[stressedout]

Re: Westcot Summons (MBNA claim)

The first order stated:

The claim is stayed on the grounds that the claimant's statement of case discloses inadequate particulars of claim. They had until 5 March to file a further statement of case.

They then came up with their witness statement exhibiting the T&C and their typed list of payments.

A further order from the Court then stated that the defendant had to file a full defence disclosing full particulars otherwise the defence would be struck out and the claimant may enter judgment!

In answer to your question, I have been working on the defence for days now, getting more and more confused by things I have researched. That's why I have come back on here! I thought I had it sorted until I started reading more threads and realised that maybe it wasn't sorted.

It seems to me that despite the claimant not comply with the CPR requests, the court have simply ignored it.

[Kafka]

Re: Westcot Summons (MBNA claim)

If they provided a witness statement by 5 March where is this? You must provide all the documents. Its not clear what has happened or where you have been getting information from. If you want advice and you do not have a thread, then you must provide all the details.

There are some sample defences here that might offer some help
Penalty Charges Forum

Its not possible to point you at other threads without being very clear about your case.

[stressedout]

Re: Westcot Summons (MBNA claim)

I'm don't really understand your answer. This is my thread!! I only came back on here to clarify some points (an earlier post had not been answered). I have posted above what their witness statement said. I have gathered information from various sources, including this site.

I thought I had made it clear what their case was - obviously not! They have not provided any documentation, as I said earlier, and a defence has to be lodged on that! Not much hope of that.