Hiya, here's my first draft ...if someone could review please
Claim No. xxxx
WITNESS STATEMENT OF xxxx
I xxxxx, being the Defendant in this case will state as follows;
I make this WITNESS STATEMENT in support of my defence to this claim.
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. The claimant issues claims to circumvent and claim the full amount of debt with costs 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 . This means 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). 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 the a third party.
3. It is noted that the case handler responsible for the draft of the claimants witness statement confirms that the evidence from his own knowledge derived from his conduct of this action and from documentation supplied to him from the claimant. It will be expected that this person will be in attendance to verbally give this evidence or give notice pursuant to Section 2 of the Civil Evidence Act 1995 and CPR33.2(b) giving the reason why the witness is not in attendance.
4. The Claimants claim relates to an credit card agreement regulated by the Consumer Credit Act 1974 between the Defendant and New Day Ltd RE Aqua. Whilst it is accepted that the Defendant has in the past had financial dealings with New Day Ltd RE Aqua , on receipt of the claim the Defendant could not recall the precise details of the agreement or any debt and sought clarity from the claimant. The Defendant was unaware of any notice of assignment, nor had the Defendant been issued with a default notice, pursuant to section 87 (1) CCA 1974.
5. On 15th August 2019, the Defendant received a claim form issued by the County Court Bulk Centre, Northampton, for the amount of £8369.47. The claimant contends that the claim is for the sum of £8369.47 in respect of monies owing under an alleged agreement pursuant to The Consumer Credit Act 1974 (CCA). No agreement number was included within the claimants particulars of claim.
6. The Defendant made a CPR 31.14 formal written request to the claimant and the claimant’s solicitor. The claimant failed to respond. On 10th September 2019 the Defendant filed a defence on MCOL. The claimant and claimant’s solicitor failed to respond and the county court proceedings at Northampton CCBS were auto-stayed. The defendant received no further correspondence from the claimant or the claimant’s solicitor until 12 January 2022.
7. The Defendant received a reply from the Claimant’s solicitor dated 12th January 2022 which enclosed a reconstituted copy of an agreement, a “screenshot” allegedly evidencing Default Notice was sent, statements of account provided by original creditor, notice of assignment from NewDay Ltd to Cabot Financial (UK) Limited and a statement of account provided by the Claimant’s solicitors which the claimants provided in their witness statement dated 14th January 2022.
8. On 26th January 2022, the claimant made an application to lift the stay on proceedings and request summary judgement. The summary judgement hearing took place on 8th March 2022 where it was determined the only outstanding issue for the Court to consider in connection with this matter was whether a default notice in accordance with Section 87 and 88 of the Consumer Credit Act was served upon the Defendant and if so, the amount that the Claimant can have judgement for. The Court has requested both parties to file witness statements and evidence in support of this position limited to the service or otherwise of a default notice
9. It is noted the Claimant has confirmed in their witness statement dated 14th January 2022, copies of the Default Notice or related documentation are not available.
10. To date no valid full true copy of the executed agreement containing the full terms and conditions have been disclosed.
11. To date no valid full true copy of the original Default Notice in the prescribed form, specifying the nature of the alleged breach, if the breach was capable of remedy, what action was required to remedy it and the date before which that action was to be taken, and if the breach was not capable of remedy, the sum required to be paid as compensation for the breach, and the date before which it was to be paid in accordance to Section 88 Contents and effect of default notice.
12. The Claimant has disclosed a “screen shot” allegedly taken from the originators database system which they claim shows COLLLTRS 0013 is a Default Notice and was sent on 20th July 2018. There is no tangible positive evidence from any witness from New Day RE Aqua that COLLLTRS 0013 is a Default Notice. The account number reference xxxxxxxxxxxx shown on the “screen shot” does not correspond to the account number reference on any of the credit card statements, nor does the “screen shot” provide any evidence that the alleged Default Notice complied with Section 87 and 88 of the CCA 1974 i.e. prescribed form, details of the alleged breach and amounts required.
13. The Claimant has disclosed credit card statements which show regular monthly payments made up to and including May 2017 however the Defendant can evidence further monthly payments were made between June 2017 up to and including June 2018 (See Defence Exhibit XXX page XX)
14. The Claimant has disclosed a statement of account dated 14th May 2019 for the amount of the claim £8369.47 but has not provided a detailed breakdown of how this amount has been calculated.
15. 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 owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement to enforce an agreement.
16. The claim brought by the claimant is spurious and speculative. The Claimant does not have possession of the correct valid paperwork and this is an attempt to mislead and convince the Court that the Claimant can disclose the legal valid documents on which its claim relies on. It is therefore requested the Claimants Claim is struck out for the above reasons.
Statement of Truth
I, xxxxxxxxxx the 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.
Print Name xxxxxxxxxxx