Claim No. xxxx
WITNESS STATEMENT OF xxxx
I xxxxx, being the Defendant in this case will state as follows;
1. I make this Witness Statement to oppose the claimant application dated 2 DECEMBER 2020. Whereby it has been stayed due to insufficient or lack of paperwork on behalf of the Claimant. And whereby the Claimant has failed to attend mediation due to being unable to service me with enough evidence to support their claim.
2. Subsequently at a Directions Hearing the Court has asked the Claimant to resubmit their claim pack to me and acknowledged it dd not have the details of my response to the Particulars of Claim.
3. The claimants witness statement opening paragraph confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph. It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2 (1) (B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act and also be in attendance at hearing to give evidence in support of the claimants witness statement.
4. 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. The claimant then issues on mass claims to circumvent and claim the full amount of debt to maximise profit that does not equal any material loss.
5. Furthermore, in the Particulars of Claim, the Claimant has failed to disclose that this alleged debt was not an original debt purchased from Barclaycard but was actually purchased from Robinson Way (RW), who first purchased the debt in July 2020 thus misleading the Defendant and the Court.
a. The first assignee was Arvato Financial Solutions on 09 JULY 2018
b. The second assignee was Allied International Credit on 30 APRIL 2018
c. The third assignee was Wescott Credit Services on 15 OCTOBER 2018
6. I know this because RW had also started a Claim against me for this alleged debt but were unable to furnish me with copies of the CCA and all relevant documentation relevant to their claim as were the other Debt Collection Agencies.
1. This alleged claim is for a credit card agreement regulated by the Consumer Credit Act 1974 between myself and Barclaycard. On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity from the claimant. I was unaware of any notice of assignment, nor had I been issued with a default notice, pursuant to section 87 (1) CCA 1974.
2. I made a CPR 31.14 formal written request to the claimant and the claimant’s solicitor. The claimant failed to respond at that time.
3. I subsequently filed my initial defence defence on MCOL in response to their claim. It was only after this that the Claimant materialised the documents requested albeit ‘reconstituted’.
(1) I also bring to the Court’s attention:
a. A Reconstituted agreement must have the following items to comply with a sect. 77/78/79 Request under CCA 1974.
1. Your name and address as it was at the time the account was opened.
2. As above for the creditor.
3. The terms and conditions relevant when the account was opened.
4. Those T's and C's relevant when the account was closed.
5. Any other documents mentioned in those T's & C's e.g. most credit card providers enclose a booklet containing the full T's & C's when a card is issue.
4. The claimant makes various references to the lack of tangible evidence in my defence, that it raises no triable issues and states that the lack of substance and supporting evidence in my defence limits the Claimant’s response. My defence was submitted according to the conditions for filing a defence on MCOL and in the lack of any tangible supporting documentation from the Claimant, especially including, but not limited to, the ongoing lack of the production of and disclosure of a true copy of the CCA Credit Agreement or any default notice. I have followed the dates and timelines set out by the court, completing an Acknowledgement of service and Defence in the correct time windows.
The Claimant has not done this. Failure to adhere to these timeframes by the Claimant has prevented this case going to mediation, with due respect, this is an unfair circumstance and has not provided opportunity to reach a settlement agreement.
Defendants Response to claimants claim/ Application
5. With reference to the Claimant’s Witness Statement they have claimed true copies of Documents’ have been included. I again refer you to Point 3 above.
6. With reference to the Claimant’s Witness Statement, the claimant’s solicitor has produced an application form which seems to be a reconstructed document in which my details have simply been typed in the exact same font, this could have been made up anytime at any point by anyone to imitate what a Barclaycard agreement may look like and is NOT a true copy from Barclaycard which the Claimant’s solicitor claim they have waited for.
7. The Claimant has produced a Reconstituted Application Form and does not contain all the terms and conditions, indeed from what I can see it does not contain any Terms & Conditions, nor any of the subsequent documents or conditions that a Terms & Conditions document would refer to.
8. On the signature page, it states “To sign this application, please tick the box below.
By ticking the box you consent to credit identity, fraud and other credit checks being carried out”, it is my belief that none of these checks were done adequately enough, if they were, the lender would have seen that the defendant was already financially overexposed and would have had no doubt defaulted on any loan offer made therefore making the original lender complicit in Irresponsible lending, under which the Financial Ombudsman are now investigating.
9. In addition the online application form there is no record of an IP address of the computer on which this application was alleged to have been made.
Section 61 Signing of agreement
(1) A regulated agreement is not properly executed unless –
a. A document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner by both the debtor or hirer and by or on behalf of the creditor or owner, and
b. The document embodies all the terms of the agreement, other than implied terms and
c. The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible
Section 65 Consequences of improper execution.
(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only. And therefore pursuant to sec 127 (3) The court shall not make an enforcement order under section 65 (1) if section 61 (1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60 (1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).
10. With reference to the Claimant’s Witness Statement, I received no correspondence from the Claimant or the claimant’s solicitor with regard to offering settlement negotiations in order to cease court action.
11. With reference the Claimant’s Witness Statement, the claimant’s solicitor has not supplied a copy of the original Default Notice nor have they issued the defendant with any properly executed Default Notice’s as per the responsibilities as the new holder of the alleged debt.
12. The claimant’s solicitor has supplied a “screen shot” of a database system which they claim shows a Default Notice. There is no tangible positive evidence from any witness from Barclaycard this is a Default Notice.
13. It is therefore contended that the original creditor failed to serve a valid Default Notice pursuant to section 87 (1). Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement.
Sec 87 Need of default notice
(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement:
a. To terminate the agreement, or
b. To demand earlier payment of any sum, or
c. To recover possession of any goods or land or
d. To treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred or
e. To enforce any security
Sec 88 Contents and effect of default notice
(1) The default notice must be in the prescribed form and specify
a. The nature of the alleged breach
b. If the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken
c. If the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid
14. With reference the Claimant’s Witness Statement, At no point between the claimant submitting their court claim and to date has the claimant or the claimant’s solicitors attempted to enter into settlement negotiations.
(1) I and the person helping me at this time have emailed the Solicitor on numerous occasions to consider this case and ask their client to reconsider based on the following
a. The defendant’s mental health has deteriorated to the extent that he is medicating and is suicidal
b. The defendant has multiple debts totalling over fifteen thousand pounds of which this alleged debt is one
c. Affordability – the defendant has no obvious source of income and is currently living on handouts from friends and family – thus rendering the likelihood of any repayment impossible
d. The FOS are currently investigating an Irresponsible Lending Complaint with Barclaycard, the original creditor. The FOS have already investigated another loan taken out by the defendant at the same time and found in favour of the defendant
(2) Despite these requests being made to the solicitor’s, no evidence from them would suggest that they have asked their client to take a view on their position and the defendant respectfully asks the Court to require evidence from the Claimant that these questions have indeed been put to their client and their client’s response to those requests.
(3) And further asks once again to consider this claim considering the above
In view of the information set out above I respectfully submit to the court that the claimant’s application be denied and strike out the claimant claim and dismiss the claim in its entirety.
Statement of truth
I, XXXXXXX defendant, believe the facts stated in this witness statement are true. I understand that proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.