This is my draft WS
"IN THE ******* county court
Claim No. ***********
Hoist Portfolio Holding 2 Ltd
WITNESS STATEMENT OF **********
I ******, being the Defendant in this case will state as follows;
I make this Witness Statement in support of my defence in the claim.
The claimants witness statement 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.
1. The Claimants witness statement (point 9) states the last payment received on account was on the 30th November 2010. The Claimant's claim was issued on 10th January 2017. The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980.
If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.
Therefore, the Claimant's claim to be entitled to payment of £2719.48 or any other sum, or relief of any kind is denied.
I understand that the claimant is an Assignee, a buyer of defunct or bad debts who are based in Jersey, which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already wrote off as a capital loss and claimed against taxable income as confirmed in the claimants witness statement exhibit by way of the Deed of Assignment
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 that 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 a third party.
2. The claimant contends that the claim is for the sum of £2719.48 in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The consumer credit Act 1974 (CCA).The particulars of claim fail to state when the alleged agreement was entered into but their witness statement states it was 9th March 2006 with Morgan Stanley Bank International Limited 11 years ago. The evidence they have provided by way of a signed agreement exhibited “DJH1” indicates it was 19th October 2005 with Blackhorse. Attached to this are Barclaycard terms and conditions. It is of my opinion that this “mix and match” creation can no way be taken as serious evidence of any monies owing.
4. On the xxxxxxx I made a formal written request to the Claimant for them to provide me with a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974.
The claimant has since disclosed a copy of the application which purports to be the agreement within its witness statement at point 4 exhibit DJH1 and admits it’s very poor quality. It is averred that it is impossible to read and illegible. The court is invited to try and decipher the contents and in particular the prescribed terms pursuant to section 78 CCA1974 and sec 61 (1) c of the CCA1974.
5. Furthermore the author of the witness statement at point 5 then tries to introduce a reconstituted version of the agreement (exhibit AJP1) which is no more than a set of Terms and Conditions and in no way comply with the prescribed terms of a reconstituted version which they have previously tried to rely on at point 6 of their witness statement.
6. The claimant tries to get around the poor quality by trying to rely on Carey v HSBC. Carey V HSBC is irrelevant in this matter and only applies to the giving of information under section 77/78/79 and is not retrospective to agreements entered into pre April 2007.I therefore contend that section 127 (1 and 2) accordingly applies in this case.
10. Contained within the claimants particulars the claimant pleads that The defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA. It goes on to evidence a default notice in their exhibits which is provided by Mercers and not the actual creditor Barclaycard themselves. 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.
Given that Mercers are in fact a Debt Collect Agency they cannot be considered to be the creditor or owner of the regulated agreement.
11. Notwithstanding that this alleged debt is statute barred pursuant to the provisions of section 5 of the limitation act 1980, the Claimants pleaded case is that the Defendant entered into an agreement with Morgan Stanley Bank International Limited under account reference **********. I am uncertain as to which account this refers to. It is accepted that I have had banking products with Barclaycard in the past however I have no recollection the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim relies upon and not try to mislead the court.
Statement of Truth
I, ********, the Defendant, believe the facts stated within this Witness Statement to be true.
Signed: _________________________ _______
Dated: _________________________ _______"