but not yet...

With modifications ...

IN THE County Court AT CLAIM NO:E

BETWEEN:

Lowell Portfolio Ltd

-and-

A defendant

WITNESS STATEMANT OF A defendant

I the defendant in this claim make the following statement believing it to be true will state as follows:-

1. It is admitted that I have held three accounts with Halifax in the past.These accounts were opened between 2009 to 2012 and used for the purposes of income and expenditure.

2. The defendant denies that the account exceeded the agreed overdraft limit due to overdrawing of funds but as a result of unfair and extortionate bank charges/penalties being applied to the account and also unauthorised added account fees due to the account being changed from a non paying to a fee paying account without authority or my prior knowledge

3. I refute the claimants claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed or over limit payments and also due to unauthorised charges from a non fee to a fee paying account at some point . The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

4. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

5. The claimant is denied from added section 69 interest within the total claimed that as yet to be decided at the courts discretion.

6. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

The claimant is also put to strict proof to:-.

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

(g) Provide notification letters showing change of account from non fee to fee paying and also two month letter before moving or closing of account as per the standard Halifax terms and conditions (see sheet 1)

7. On receipt of this claim on the 8th February 2018 I requested documentation by way of a CPR 31.14 request as per the claimants Particulars of Claim. Proof of this by recorded delivery is attached (see sheet 2) The Claimant has failed to comply with this request.

8. The claimant has produced copies of bank statements for two different account types but have not produced requested documentation as per my CPR31.14 request therefore the claimant has not complied with this request.

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Not sure if 8 needs more tweaking ? Trying to get the point across that these are just copy statements with some from the non fee account and the remainder from the fee paying if that makes sense ?

Reads like a defence.....too late to put them to strict proof to disclose at witness statement stage.

Example Overdraft Statement.

I.Mr XXXXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

1.It is admitted that I have held a current account with XXXXXXX in the past. The account was opened on or around xxx xxxx 19xx and used to facilitate the payment of my income and expenditure.

2.It is denied that I entered into an agreement on the 5th October 1998.It is admitted that I accepted a facility/service offered by Lloyds to be able to overdraw to a limit set and reviewed by (Bank) on the balance of the above current account.

3.It is denied that I exhausted or exceeded the overdraft facility limit rather a residue created by Lloyds due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair Terms in Consumer Contract Regulations 1999 on this point.

4.It is denied that I defaulted on an “ agreement “ an Overdraft Facility is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced.

I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which (Bank) failed to comply with.

5. Again it is stressed that I was never informed of assignment of this debt neither by the original creditor nor the assignee. If the debt was assigned to the claimant on 24th June 2013 why do they state within their Witness Statement they allegedly served me on the 10th July 2014 (12 months after assignment)?.

For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136).

Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned.

The assignment must be absolute.

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

Again it is denied any Notice of Assignment was ever received.

6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

Show and evidence service of Notice served under Sections 76(1) and 98(1)

And to show how the claimant has legal right either under statute or equity to issue a claim in their name

Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

It is totally unacceptable to suggest as per the Witness Statement point 12 that documents and T&Cs/statements were sent throughout duration of the account and purely an attempt to avoid its responsibilities in proving its claim or rather they do not hold any proof and not expected to validate their claim legally.

7. The claimant’s points at 13 & 14 are either an attempt to mislead the court or a lack of understanding of the CCA1974 legislation. You cannot request by way of a section 77/78/79 for copies of an Overdraft Facility arrangement, hence none was made. The claimant is still liable to disclose a copy of the facility arrangement confirmation and Terms and Conditions from that date pursuant to section 61B of the Consumer Credit Act.

My defence stated that the original Creditor failed to serve Notice under Sections 76(1) and 98(1) and are therefore prevented from enforcing or requesting any relief.

8. Point 16 of the Claimants Witness Statement is irrelevant and nonsensical

9. Point 17 again is irrelevant, neither the claimant nor its Witness are in a position to assume that anything has been previously provided, nor is it their concern. They the claimant in this matter and will have to disclose all documentation relied upon as the basis of their claim at trial. As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

10. Point 18, it is the witness’s opinion only that my defense is not valid nor has prospect of success. It is in my opinion that the claimants claim is fanciful contains no proof, and uncorroborated. Totally unaware of the details of debt they have purchased and expecting judgment/relief be granted, relying on the court to base its decision on assumption and basis of probabilities.

It is therefore submitted that the claimants be ordered by the court to quantify ,verify, substantiate and disclose all evidence relied upon and should the claimant fail to that their claim be struck out under CPR 3.4 as having no basis.

I believe that the facts stated in this Witness Statement are true.

Signed ……………….

Dated on the day ………………..

Wow Andy thanks !

That is pretty comprehensive !

if I file my statements and claimant does not I assume the Judge will order them to do this

If they dont file and serve a statement then they have no evidence to rely on........and normally its a sign they are ready to discontinue

That's what I suspect Andy although nothing is guaranteed until the conformation is in writing until then I stick to the deadlines set by the court

If they file with the court and fail to serve you......they are still in default of the court directions and sanctions should be imposed.

Here is a tweaked version using the one kindly provided by Andy :

IN THE County Court at CLAIM NO:E

BETWEEN:

Lowell Portfolio Ltd

-and-

A defendant

WITNESS STATEMANT OF A defendant

I.Mr XXXXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

1.It is admitted that I have held current accounts with Halifax in the past. The account was opened on or around 2009 to 2013 and used to facilitate the payment of my income and expenditure.

2.It is denied that I entered into an agreement .It is admitted that I accepted a facility/service offered by Halifax to be able to overdraw to a limit set and reviewed by (Bank) on the balance of the above current account.

3.It is denied that I exhausted or exceeded the overdraft facility limit rather a residue created by Halifax due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair terms in Consumer Contract Regulations 1999 on this point.The account was also subject to a monthly fee after changing from non fee to a fee paying account without my authorisation.

4.It is denied that I defaulted on an “ agreement “ an Overdraft Facility is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced.

I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which (Bank) failed to comply with.

5. Again it is stressed that I was never informed of assignment of this debt neither by the original creditor nor the assignee. If the debt was assigned to the claimant then I seek proof of such assignment.

For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136).

Assuming it’s a legal assignment only the benefit of an agreement may be assigned.

The assignment must be absolute.

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

Again it is denied any Notice of Assignment was ever received.

6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

Show and evidence service of Notice served under Sections 76(1) and 98(1)

And to show how the claimant has legal right either under statute or equity to issue a claim in their name

Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

7. I am aware I cannot request by way of a section 77/78/79 for copies of an overdraft facility arrangement, hence none was made but the claimant is still liable to disclose a copy of the facility arrangement confirmation and terms and conditions from that date pursuant to section 61B of the consumer credit Act.

My defence stated that the original Creditor failed to serve Notice under Sections 76(1) and 98(1) and are therefore prevented from enforcing or requesting any relief.

8. If the claimant believes all documentation has been sent previously neither the claimant nor its witness are in a position to assume that anything has been previously provided, nor is it their concern. They the claimant in this matter will have to disclose all documentation relied upon as the basis of their claim at trial. As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

9. It is in my opinion that the claimants claim is fanciful contains no proof, and uncorroborated. Totally unaware of the details of debt they have purchased and expecting judgment/relief be granted, relying on the court to base its decision on assumption and basis of probabilities.

It is therefore submitted that the claimants be ordered by the court to quantify ,verify, substantiate and disclose all evidence relied upon and should the claimant fail to that their claim be struck out under CPR 3.4 as having no basis.

I believe that the facts stated in this Witness Statement are true.

Signed ……………….

Dated on the day ………………..

Just revised 6 to include " sent by recorded delivery with proof " - this will be document 1A and will include proof via Royal mail track and trace

I also need to add the fact that the account was changed from fee to non fee without permission and in this case Halifax will notify in writing as per their terms and conditions , also any changes or closure of accounts the account holder will be notified 2 months prior as per Halifax T&C. I have documentation for this 2A I was going to name this so should I add these points in to section 6 ?

Ok final draft that I am happy with !

IN THE County Court at CLAIM NO:E

BETWEEN:

Lowell Portfolio Ltd

-and-

A defendant

WITNESS STATEMANT OF A defendant

 I.Mr XXXXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

1.It is admitted that I have held three current accounts with Halifax in the past. The accounts were opened on or around 2009 to 2013 and used to facilitate the payment of my income and expenditure.

2.It is denied that I entered into an agreement .It is admitted that I accepted a facility/service offered by Halifax to be able to overdraw to a limit set and reviewed by (Bank) on the balance on those accounts.

3.It is denied that I exhausted or exceeded the overdraft facility limit rather a residue created by Halifax due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and excessive bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair terms in Consumer Contract Regulations 1999 on this point.The account was also subject to a monthly fee after changing from non fee to a fee paying account without my authorisation and with no written notice as per the terms and conditions from Halifax (Sheet 2A)

4.It is denied that I defaulted on an “ agreement “ an Overdraft Facility is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced.

I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which Halifax failed to comply with.

5. Again it is stressed that I was never informed of assignment of this debt neither by the original creditor nor the assignee. If the debt was assigned to the claimant then I seek proof of such assignment.

For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136).

Assuming it’s a legal assignment only the benefit of an agreement may be assigned.

The assignment must be absolute.

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

Again it is denied any Notice of Assignment was ever received.

6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14 via recorded delivery (see form 1A) to the claimants PO Box address in Northampton.

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

Show and evidence service of Notice served under Sections 76(1) and 98(1)

Show how the claimant has legal right either under statute or equity to issue a claim in their name

Show written notice of change of account from non to fee paying and two month notice for any change or closure of account under Halifax terms and conditions (see 2A) that notification will be in written form to the account holder.

Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

7. I am aware I cannot request by way of a section 77/78/79 for copies of an overdraft facility arrangement, hence none was made but the claimant is still liable to disclose a copy of the facility arrangement confirmation and terms and conditions from that date pursuant to section 61B of the consumer credit Act.

My defence stated that the original Creditor failed to serve Notice under Sections 76(1) and 98(1) and are therefore prevented from enforcing or requesting any relief.

8. If the claimant believes all documentation has been sent previously neither the claimant nor its witness are in a position to assume that anything has been previously provided, nor is it their concern. They the claimant in this matter will have to disclose all documentation relied upon as the basis of their claim at trial. As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

9. It is in my opinion that the claimants claim is fanciful contains no proof, and uncorroborated. Totally unaware of the details of debt they have purchased and expecting judgment/relief be granted, relying on the court to base its decision on assumption and basis of probabilities.

It is therefore submitted that the claimants be ordered by the court to quantify ,verify, substantiate and disclose all evidence relied upon and should the claimant fail to that their claim be struck out under CPR 3.4 as having no basis.

I believe that the facts stated in this Witness Statement are true.

Signed ……………….

Dated on the day ………………..

Ive got email of local court so ready to email WS and printed copies for Lowells to be sent ...

Just spoken to court and still not received WS from Lowells solicitors which was due 2nd July. Granted she mentioned a backlog of work so it may be ready to be processed but will cross that bridge later..

You could add the following if you dont mind re printing.......put it as your new 1 & 2 and renumber the rest.

1. It is my understanding that the claimant is an Assignee, a buyer of defunct disputed or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed ...10p to 15p in the £1 and which the original creditors have already wrote off as a capital loss and claimed against taxable income. They continually issue claims to circumvent and claim the full amount of debt to maximise profit.

2. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. When an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information which the claimant has failed to comply with). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

I certainly don't mind printing...more ammunition...thanks again Andy

Agreed ! It can't do any harm to have those details in front of the DJ

Quick question can I email witness statement to Lowells as well as send via post ? I have my local court email so sent via this method to cover myself..

yes

Awesome !

Sent now to Lowells solicitors email which ironically is named help@lowells, yes you can help, help yourself to this witness statement !

Well been a little time but as it stands my WS was received and processed on 2nd August ,

Lowell have not submitted theirs so breached timescale and no letters from court.

Spoke to local court today and there are no further updates.

Apparently it has gone to the DJ but they have not put any directions on yet.

Can I get this struck out if Lowell have not complied or just await the directions from DJ ?

Wait for directions...far cheaper than an application....Discontinuance next...if they dont submit a statement then they have no evidence to present.

Andy

Well great news !

Letter dated 14th Aug from court today saying Lowell have not complied with paragraph 1 of directions and therefore claim is struck out !

Lowell have 7 days to have it set aside etc.

Thanks to everybody's assistance here...donation to be made...

Keeping hold of this letter for future ref in case this raises it's head as it is like holding a Wonka golden ticket

Good ...post again after the 7 days have passed and we will amend your thread title.

Regards

Andy

Awesome ! Thanks Andy...

If Lowell do not respond should I not receive a final letter from court to say claim struck out ?

No..the claim has already been struck out...thats your notice......you wont hear anything further unless they make application to set it a side

good work NTD

dx