Westcot Summons (MBNA claim)

[Kafka]

Re: Westcot Summons (MBNA claim)

You also don't appear to have provided any details of the following issues that typically figure in defences.

Default process - was this done correctly?
Charges added - are you counterclaiming for these?
Assignment (as Wescot claim to own it they must be able to prove that it was correctly assigned to them)

[stressedout]

Re: Westcot Summons (MBNA claim)

Again, I thought that I had already said that no default notice has been received, no notice of assignment, so I have no idea if the default process was done correctly.

I don't know if charges have been added, I assume so, and in the defence I have asked them for full proof of what has been added. Also, in the defence I have asked them to produce the DN and notice of assignment, documents that have already been requested, but not produced.

That's why I seeked clarification because I haven't got the documents.

[Kafka]

Re: Westcot Summons (MBNA claim)

Has the account been defaulted? If so on what date and for how much? How does this figure compare with the amount they are claiming now?
Did you ever send a Subject Access request to MBNA for all the data they hold on you?

You need to look at this differently now, because you can't just defend simply on the basis of non disclosure as you can for a holding defence. As the court has requested a full defence you must do this for all the issues, stating what the legal requirements are and how they have failed to either follow the processes or provide evidence that they have done so upon request. This must make a clear and comprehensive case for getting the claim dismissed on legal grounds.

The sections of the defence will presumably include the following

• Acknowledgement that you did have the account
• Claim that it is statute barred and putting the C to strict proof that it is not
• C is being vexatious by starting legal action unnessessarily and by refusing to supply documentation following requests under the CPR and following disclosure directions from the court. (You have not said if they sent a letter before action prior to filing at court and there is no historical thread or timeline to say what happened with the account before it went to Wescot, or what happened with them before they filed a claim)
• No valid credit agreement has been supplied meaning that they have no right of action.
• You never received a Default Notice so they had no right to terminate the agreement and sell it on.
• You never received any Notice of Assignment from the original creditor when the C alleges that the account was purchased, or recently on request for a copy from them.

You need also to say what you can about charges and point out that they have failed to provide the data needed to quantify these.

[Kafka]

Re: Westcot Summons (MBNA claim)

SO

Are you able to work on this today?

There is very little time left now to do this but you can frame a case by including each of the issues mentioned and by cribbing sections from other defences and adapting them. I can help later today to get the final draft in order if you need it, but I need to know what your plans are to schedule this in.

[Amethyst]

Re: Westcot Summons (MBNA claim)

bump so it can be found

[stressedout]

Re: Westcot Summons (MBNA claim)

It has been suggested to me that there may be some knowledgeable peeps on here regarding absolute and equitable assignment.

I just need some pointers regarding the way debts are assigned to DCA's and the like.

I have reason to believe that if a company only has an equitable assignment then they are not entitled to sue in their own right? If that is the case, is a witness statement admitting that valid evidence of the assignment or would the Deed of Assignment from the original creditor have to be produced? If the company has already issued Court proceedings, can they now be stopped in their tracks regarding the assignment issue?

It has only just come to light regarding the equitable assignment issue after going through all the paperwork again.

[Angry Cat]

Re: Westcot Summons (MBNA claim)

In the case of an equitable assignment, MBNA and the purported assignee would have to co-litigate;
the purported assignee cannot bring proceedings in their own right.

Have you requested under the CPR's, copies of the Deed of Assignment and Deed of Sale?
This should have been done at AQ stage.

The claimant will have to provide documentary evidence showing proof that the alleged debt was legally assigned.

[frisp]

Re: Westcot Summons (MBNA claim)

I'm in a similar bun fight with Wescot & an MBNA account

Legal Beagles Consumer Forum

[stressedout]

Re: Westcot Summons (MBNA claim)

In the case of an equitable assignment, MBNA and the purported assignee would have to co-litigate;
the purported assignee cannot bring proceedings in their own right.

Have you requested under the CPR's, copies of the Deed of Assignment and Deed of Sale?
This should have been done at AQ stage.

The claimant will have to provide documentary evidence showing proof that the alleged debt was legally assigned.

Yes, copies of relevant documents have been requested several times, all ignored by Wescot. It has even been pointed out to the Court that all requests for documents have been ignored, but the Court don't seem to be all that interested. In a statement they attached a NoA, but it only says they have been assigned the "alleged debt". Even, then the NoA was produced twice in different statements with different dates! It's a complete joke to be honest.

Don't think a request for a Deed of Sale has been requested, because I have only recently found out that it can be requested, although I did ask them to provide documentaty proof of their assignment in a letter, but that has been ignored.

I feel the whole case is a major stitch up by them and if we get a horrible Judge, then we will probably lose.
------------------------------- merged -------------------------------

I'm in a similar bun fight with Wescot & an MBNA account

Legal Beagles Consumer Forum

How far how you got with your case?

[stressedout]

Re: Westcot Summons (MBNA claim)

What is the relevance of the Carey case being cited? I know this revolves around s77/78 requests for copies of the agreement but don't know why it would apply in cases where the agreement has been requested under CPR because proceedings were issued out of the blue.

Also, another case being cited is McGuffick v Royal Bank of Scotland. Does anyone know anything about this?

[Angry Cat]

Re: Westcot Summons (MBNA claim)

http://www.bailii.org/ew/cases/EWHC/Comm/2009/2386.html

[stressedout]

Re: Westcot Summons (MBNA claim)

http://www.bailii.org/ew/cases/EWHC/Comm/2009/2386.html

Thanks for that, I've had a look, but I don't really understand it!!!

Is that case centred around s77 request for the CCA? I'm not sure why this would be brought into a case if the CCA was requested under CPR?

[Amethyst]

Re: Westcot Summons (MBNA claim)

McGuffick http://www.bailii.org/ew/cases/EWHC/Comm/2009/2386.html

Quote=CreditLaw

McGuffick v Royal Bank of Scotland plc
QBD Commercial Court 06/10/09 [2009] EWHC 2386
This case arose from the activities of a claims management company, Cartel Client Review, in Manchester.
The consumer took a £17,034 loan out with the bank in 2005. It was taken as fact that the agreement was properly executed, so ss 61, 65 and 127 of the Consumer Credit Act 1974 were not in issue. In 2006 and 2007 his payments ceased, although some help was provided by a payment protection insurance policy which he had taken out.
By May 2007, he was over £2000 in arrears and the bank issued a default letter, which was accompanied by a form letter headed "Formal notice of intention to file a default and to take action to recover debt".
In February 2009 MJP solicitors, acting for the consumer, made a s.77 request for a true copy of the agreement. In their letter they stated that they regarded the agreement as in dispute, and that no credit reference agency was to be sent information until the matter was resolved. The bank could not comply with the request within the statutory 12 working days, and wrote to the consumer stating that they knew they could not enforce repayment, but that the consumer should continue to meet his obligations under the agreement, bearing in mind that it was not void but valid, and that any continuing default would be reported to a credit reference agency. The bank's normal strategy was not to pursue legal action and to put a stop to all collection activity
Correspondence ensued, and MJP threatened proceedings for a declaration of unenforceability and for an injunction if the consumer's credit rating was affected.
On 11 May 2009, the bank sent a copy of the agreement, which it had now located, and stated that enforcement action would re-start. Inadvertently, the bank failed to include a statement of account.
The bank found out about the launch of these proceedings and suspended enforcement action. Although it could easily have made the loan enforceable by serving the statement, it agreed with MJP that it would not do so, enabling the court to examine the issues raised.
The court differentiated between absolute unenforceability under s.127(3) and "redeemable" unenforceability under ss.77-79, which can be resolved by the creditor's compliance.
It then stated that taking enforcement action did not include precursors to enforcement action, such as credit reference agency referrals or the bringing of enforcement proceedings. It accepted the bank's argument that otherwise it would be unable to request a court order under s.127(3) because this would be barred by s.65.








Carey - relevant as that is what is being used in defences/claims in CCA cases.

[stressedout]

Re: Westcot Summons (MBNA claim)

Sorry, I'm getting a bit confused about this!!

Is Carey and McGuffick ONLY relevant in cases where the CCA has been requested under s77/78?

I thought I had read somewhere that it is not relevant for requests made under CPR?

My head is going to explode with all this?

[stressedout]

Re: Westcot Summons (MBNA claim)

What are the chances of the Claimant agreeing to adjourning the hearing?