Help Please being taken to court

by angelao1 Thu Jun 07, 2018 3:07 pm

Hi this is slightly different from the norm
The situation is that had a CC with M&S and paid off in 2012 but due to circumstances this got overlooked.
The amount was never applied to the account. The contract I believe is unenforceable under the CCa for various reasons
Stopped paying for "CC in 2014 and debt sold in 2016 to 1st credit who issued court proceedings in 2016/17
In Jan 2018 M&S found the original payment and returned monies
Sill being taken to court as 1st credit accepted liability for debt when accepted money even though when originally bought debt had been paid off
Can anyone make sense of this please!!!
Many thanks

by **daveiron** Thu Jun 07, 2018 3:27 pm

On the face of it ,may be worth your while seeing a solicitor about making a claim against them,
this must have affected you credit rating ,distress due to court action ect. If you have all the paperwork ,take the parasites for all you can.

by waylander62 Thu Jun 07, 2018 10:04 pm

1st credit issued court proceedings in 2016/17 what happened ?
did you defend this at all ? did they obtain judgement ?
this would be a good starting point

by deadbeatdad Fri Jun 08, 2018 10:58 am

It is not unenforceable - they have already enforced their claim which was made possible by your failing to respond. If you fail to respond or offer a defence - respectfully - that's not their problem, its yours.

However, as you failed to offer a defence - you can make an application to have any judgement set aside - but you will then need to enter into a dialogue with the claimant. At this point you can ask the sort of questions you need to settle this matter.

I'm just fleshing out the points waylander62 stated above. ps. don't 'see a solicitor' and rack up fees - it's a few letters on your part (at this stage)

by angelao1 Fri Jun 08, 2018 6:34 pm

Hi I originally responded and have filed a defence
1st credit forgot about it for a year then restarted the court stuff again

by **daveiron** Fri Jun 08, 2018 7:41 pm

Did I misread ? Are you saying that you paid off your card in 2012 but M&S did not credit the account ?

by waylander62 Fri Jun 08, 2018 8:40 pm

angelao1 wrote:Hi I originally responded and have filed a defence
1st credit forgot about it for a year then restarted the court stuff again

OK the story is starting to unfold now, not being funny but you must make it clear what is going on / has gone on here else you wont get the correct advice.

my guess: 1st credit issued a claim against you, you defended and nothing further happened ?

If i am right here then the claim would therefore have become stayed.

NOW 1st credit for some reason have decided to continue with their original claim ?

If i am right again then they MUST make an application to the court for the stay to be lifted, and give a good reason why it should be lifted ?

you should have the paperwork for this ?

if i am wrong or right we need to know as you dont have time to mess around with this they may have applied for the stay to be lifted and for summary judgement which they will get if you dont act

however i could be wrong !!??

by angelao1 Fri Jun 08, 2018 9:42 pm

Yup you are right it was originally paid off in 2012 but due ill health issues got completely forgotten about even though at the time before ill health we had contacted M&S to see what was going on.(I know its mad but thats what happened!) .
When the court threatened to dismiss the case due to time having elapsed 1st Credit then applied for the stay to be lifted and also for the case to go to the small claims court.
They are now pushing for the case to be held but have not as yet paid the final fee.
In the beginning filed the defence and requested details of the assignment -- never supplied also done CPR 18 and stated this together with the fact I believe the contract is unenforceable.
The M&S money paid thing surfaced in Jan 18 after they had reactivated the case
I hope this makes things clearer

by waylander62 Fri Jun 08, 2018 10:12 pm

making a bit more sense now, did the court lift the stay ?

have you received notification that the stay has been lifted and it will now go to a final hearing ?

also would need to see your original defence, but you can file into your statement of case that the debt was paid off in full prior to the assignment therefore the assignment was not valid in any case.

you have a lot to gain here but needs doing right.

by angelao1 Fri Jun 08, 2018 11:13 pm

Yes I have received notification that the the court lifted the stay and is to go to a final hearing and i attach a copy of the defence with a few bits deleted
Thanks

Attachments

: CLAIM NO 2.doc DefenceYou don't have permission to download attachments.(38 Kb) Downloaded 5 times

by waylander62 Fri Jun 08, 2018 11:19 pm

ok

there should be some directions from the court in relation to the final hearing such as witness statements and documents to be filed and served by x date

also i think you need to write directly to M & S asap and ask them directly to confirm that a payment was made by you to clear the outstanding balance in 2012, also get proof from your bank that this sum was paid from your account to M & S in 2012.

this has to invalidate the assignment which by the way was when ?

all this needs to go into your witness statement with any evidence, this is why i need to see your original defence because you may only be allowed to use arguments put forward in your original defence.

So you may need to ask the courts permission to add new evidence.

by angelao1 Fri Jun 08, 2018 11:38 pm

I can't find details from the bank (and I have checked it seems to have vanished) but have the proof from M&S about the sum paid and also the CC statement with the exact same sum which it should have been made against.
How would I ask the court to do so? What would be the form needed?

by waylander62 Sat Jun 09, 2018 12:18 pm

unfortunately i cant see your original defence

i also need details on the hearing, have you been sent directions from the court ? it usually tells you the date of the hearing and what you expected to provide ie, witness stat. supporting evidence documentation etc.

i would still write directly to M & S and request confirmation that a sum of money to clear the account was received by them in 2012, also write or better still go into your bank and request a copy of the transaction, dont let them bullshit you, you need it and have a right to see it.

this will end the claim. it was paid, end of. I understand M & S gave you the money back ? but that is irrelavent if at the time of assignment nothing was owed, invalidates the assignment.

how much time do we have ?

by angelao1 Sat Jun 09, 2018 4:14 pm

Sorry about that
Does the above show I can read it on mine
Will get back as regards court details as will need to check

by angelao1 Sat Jun 09, 2018 4:18 pm

That makes sense re receipt of funds is it worth reporting them to the fca

by waylander62 Sat Jun 09, 2018 6:57 pm

angelao1 wrote:That makes sense re receipt of funds is it worth reporting them to the fca

maybe yes, they should not have sold it simple. FCA, ICO anybody and everybody, take them to court etc

HOWEVER put all of that to one side for now and defend this claim once you have defended and the claim struck out THEN go for the jugular , concentrate for now on getting this claim struck out.

by angelao1 Sun Jun 10, 2018 6:27 pm

Yes point taken
Have drafted letter to M&S and will send tomorrow
As regards the latest court letter it only seems to mention the fact if fees are not paid then case be struck off other wise on a date inAugust
Have I missed one?

by waylander62 Sun Jun 10, 2018 6:40 pm

angelao1 wrote:Yes point taken
Have drafted letter to M&S and will send tomorrow
As regards the latest court letter it only seems to mention the fact if fees are not paid then case be struck off other wise on a date inAugust
Have I missed one?

normally the court send out notification to both claimant and defendant, the fact that this is proceeding to a hearing, the hearing date and then directions such as......

witness statements to be filed and served on each party not later than 14 days before the hearing date
the claimant to pay x pounds by x date
and any other directions

there are usually 2 pages ? so your hearing is in august for this ?

by angelao1 Sun Jun 10, 2018 10:08 pm

Thanks I have had another look and the info to be sent by 19/06 is as follows
all correspondence , copies of emails , contracts , invoices etc
witness statements form parties and other witnesses
If fail to comply court may decide not to take account of any evidence that is produced later
No expert evidence
all original docs brought on day of trial
any party may apply to have it set aside , varied or stayed within 7 days of service of this order

Thanks

by waylander62 Sun Jun 10, 2018 10:18 pm

aah there you go, this is now crucial that you get a witness statement and any evidence into court by the 19th june

you also need to send a copy of everything to the claimant, this is very important as you could well have lost this by not being able to use any evidence.

it is important that you get something very quickly, preferably a letter or something from M & S saying that when this was assigned they had already received your payment, something from the bank too would help.

DONT MENTION ANYTHING ABOUT M&S SENDING YOU BACK THE MONEY.

you only have 9 days, you need to get this right !

by angelao1 Mon Jun 11, 2018 10:33 am

Ok will get going

by angelao1 Mon Jun 11, 2018 2:43 pm

I might have blown it by telling 1st credit that the debt was paid in 2012 and telling them to go away will check

by **daveiron** Mon Jun 11, 2018 3:14 pm

I dont think so, You will be shown to have clean hands if it gets to Court.
Get this out of the way & when over with ,start to think if its had any adverse effects on you or your credit rating.

by angelao1 Mon Jun 11, 2018 3:22 pm

Ok will get going as i said letter to M&S off in today's post

by waylander62 Mon Jun 11, 2018 6:51 pm

yes you need to get confirmation that the balance was paid in full prior to it being assigned

this makes any assignment invalid, but you need to use the right arguments.

if it was paid it was paid, that should be an end of the matter, did you use this fact in your defence ?

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