sorry but i have done another ws that i have found and re edited i would like to put in the point of no adhering to new pap, i have until Tuesday and now starting to panic a bit,
IN THE xxxxxx county court
Claim No: xxxxxx
Lowell Portfolio 1 Ltd
WITNESS STATEMENT OF xxxxxxxx
I xxxxxxx, being the Defendant in this case will state as follows:
I make this Witness Statement in support of my defence in the claim detailed above.
1.The claimant’s witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraphs. 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) (EXHIBIT A) and Section 2 (1) (A) of the Civil Evidence Act. (EXHIBIT B) The claimant has confirmed that their client will not be in attendance at the hearing, however they will be represented by an advocate. Notice has been given pursuant to CPR 27.9
2. I understand that the claimant is an Assignee, a buyer of defunct or bad debts, which are bought on mass portfolios at a much-reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.
As an assignee or creditor as defined in section 189 of the CCA (EXHIBIT C) 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.
3. This claim is for a Home Shopping agreement regulated by the consumer credit Act 1974 between the Defendant and JD Williams & Company Ltd. Whilst I have had dealings with the original creditors in the past, I do not recognise any of the account details as I no longer have records of them
4. The claimant’s Witness statement makes regular reference to a Credit Agreement between the originating creditor and myself, although they are only able to produce a reconstituted agreement with reference to this. As stated above I have had dealings with the originating creditor in the past, but am unable to recognise the account details as I no longer have records of them.
5. On DATE 2017, in response to the particulars of claim served upon me, for more clarity on the matter I made a formal written request under section 78.1 of the Consumer Credit Act, and paid the £1 fee via postal order for a copy of the credit agreement and statement of account. (EXHIBIT 0: COPY OF CCA Request LETTER, (EXHIBIT 1: CONSUMER CREDIT ACT SECTION 78, EXHIBIT 2: RECEIPT FOR POSTAL ORDER)
6. This letter was sent recorded delivery. EXHIBIT 3 (PROOF OF RECORDED DELIVERY POSTAGE)
7. On DATE 2017, I made a CPR 31.14 formal written request to the claimant’s solicitor, sent by recorded delivery, which was received and signed for by XXXX on DATE at TIME. The claimant’s solicitors responded and acknowledged my request for documents and referred my request to Lowell Portfolio
(EXHIBIT4: CPR 31.14, EXHIBIT 5: COPY OF CPR REQUEST LETTER (two pages), EXHIBIT 6: COPY OF RECORDED DELIVERY SIGNATURE) EXHIBIT 7: CLAIMANT’S SOLICITOR REPLY.
I enquired for information including:
2 Notice of assignment
3.The Default notice
4. Statement of Account
Despite the rather mis-leading assurance in Exhibit 10 dated 3/11/17““we still await receipt of a copy of the agreement and default notice from the original creditor and a notice of assignment from our client your account will remain on hold until the aforementioned documents are received. the court proceedings continued””, and no related documentation clarifying or proving the alleged debt, and therefore defaulted payments, or service of default notice has been received from the claimant’s solicitor as a result of this formal request and their written response.
8. The claimant’s solicitor provides exhibit sr3 within their witness statement and disclosure, at their points 16. This exhibit is a ‘screen shot’ of Lowell Portfolio’s Management Services System. This relies only on hearsay, as clearly stated in their witness statement: ‘The provenance of information contained in this exhibit stems from the information provided to the Claimant by the Originating Creditor'. It therefore has no legal relevance and can not be relied upon in proving this alleged debt.
9. The Claimant makes repeated references in their Witness Statement to the alleged agreement, but is however able only to provide a reconstituted version of an Agreement, with personal details typed in, and reconstituted Terms and Conditions. It does not provide clear proof of an agreement regarding this account, the existence of which the claimant relies upon heavily in their statement, and must therefore cast doubt on the veracity of their claim. It may be acceptable for the purposes of compliance with S78, (see EXHIBIT 11) then why should the very same legally valid document not also be fully acceptable in order to satisfy Sec 61 in the same respect where there is absence of an original signed agreement, as it is obvious or highly probable that the original agreement would be impossible to produce at this late stage. Therefore it is averred that the reconstituted agreement fails to comply with sec 61 of the CCA1974 (EXHIBIT 12) and is therefore unenforceable.
10. The claimant’s solicitor has disclosed a letter purporting to be a Notice of Assignment assigning the debt to Lowell’s, and a letter of introduction from Lowell’s. Neither appear to be copies of a letter on headed notepaper and therefore obviously reconstituted versions and not proof of a valid notice pursuant to Section 136(1) of the Law of Property Act 1925. (EXHIBIT 13)
11. Despite referring to the issue of a Default Notice in their original Particulars of Claim and referring to my request for a copy of a Default Notice, in their witness statement at point 5, the claimant’s solicitor has failed to provide proof of a default notice, or service of the same. 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. (EXHIBIT 14 CCA SECTIONS 87 (1), 88)
12. Notwithstanding the above the claimant remains in breach of the 12 day response period under Section 78.6, therefore the claimant is unable to request any relief until such time they can comply. (EXHIBIT 15)
13. 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 any Default Notice. My defence was clear and concise and the Claimant is put to strict proof to the contrary.
14. The Claimant states in their Witness Statement point 30 that as a debt purchaser
they are reliant on obtaining information from the Originating Creditor, and they can encounter problems when trying to obtain documentation which has been archived. Whilst this may be the case, it does not alter the facts regarding their legal obligations and duties. This therefore seems an irrelevant point to make.
15. The claimant and their solicitors have not complied with any of my requests and have not sent any related documentation clarifying or proving the alleged debt, and therefore defaulted payments, or service of default notice.
16. I therefore cannot make any admittance to any alleged debt. The claimant has been unable to produce a copy of the executed signed agreement or Default Notice and I therefore respectfully request that the court dismiss this claim and award costs it feels fit in defending this matter.
STATEMENT OF TRUTH
I, XXXX, the Defendant, believe the facts stated within this Witness Statement to be true.
Dated this day……………………..2018