Lowell/BW claim form old Lloyds Tsb current account***Claim Dismissed***

[connect4]

Thank you . Hope you can as response needs to be in tomorrow (thurs)

Regards connect 4

[AndyOrch]

In the XXXXXXXXXXX County Court Claim no.............

 

Between:

 

Claimant Lowell

 

Defendant Connect 4

 

 

 

 

Witness Statement in response to Claimants Witness Statement to set a side.

 

 

I connect 4 in addition to my defence will state as follow :

 

I make this statement in response to the claimants witness statement in opposition to my set a side application dated xxxxx of judgment dated xxxxxx which was not served pre hearing on either myself or the court and which disadvantaged me by not allowing the requisite 3 days to consider the claimants response to my proposed defence.

 

I will state the following in response and follow the order of their WS.

 

It is denied that I entered into an agreement...it was a current account which is not subject to an agreement but a service facility which is exempt from the CCA1974 except for part V nor is it denied that I have in the past held various accounts with the original creditor (insert name).

 

Assignment of debt

 

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.It is accepted that a copy was produced on the day of the hearing which I understand to be a reconstituted version which carries little bearing on any validity it purports to convince and is de facto.

 

Payment of debt

 

A part statement is not acceptable or appropriate in reflection to the alleged amount outstanding nor equates to how the figure has been quantified.

Previous requests by CPR 31.4 have been ignored previous requests by the court to disclose have also been ignored.The claimant confirms that no other documents are available from the original creditor and yet they wish to litigate on a figure that as yet to be substantiated.

 

I will contend that any alleged balance be it the result of unfair and extortionate bank charges/penalties being applied to the account and will assume as there is no original statements to quantify,the amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed or over limit payments and collection fees. 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.

 

Claimants response to Defendants defence

 

There is no question that the claim form was served nor is there a need for irrevocable presumption of good service....there had to be service as I acknowledged the claim on xxxxxxx.I was late submitting my defence because the claimant frustrated my attempts of clarification by way of a CPR 31.14 by refusing or ignoring this request.

 

Therefore the judgment is Irregular pursuant to the CCA1974 as an acknowledgement was submitted beit deficient of a defence for the above reasons and is therefore not a regular default judgment.It is my understanding that in this instance it is the law that the judgment is bad and must be set a side.

 

Definition of Default Judgment

 

Once a claim has been issued the defendant has 14 days in which to respond. If within that time they file an acknowledgement of service they are entitled to a further 14 days to return their defence. The law states that, if the defendant does not file an acknowledgmenticon of service or defence, the claimant is entitled to ask the court for a default judgment. A default judgment is, therefore, a judgment entered without a trial after the defendant’s failure to defend the claim.

 

Irregular Default Judgments

 

The law distinguishes between two types of default judgments: “regular” and “irregular” judgments. A default judgment will be irregular if it has been entered when:

 

• The defendant has filed an acknowledgement of service or a defence;

• The time for filing the acknowledgement or defence has not yet expired;

• The defendant has made an application to strike out the claim or for summary judgment;

• The defendant paid off the whole claim, including any costs and interest, before judgment was entered;

• The defendant has filed an admission to the debt and asked for time to pay.

 

A default judgment entered in any of these circumstances is not valid in law and the court must set it aside.

 

The defence filed is not a bare denial of the claim made against but seeks clarification that the claimant is legally entitled to seek relief not only a the legal owner but that they have also followed all the provisions laid out by law in the CCA1974.To quantify and prove the alleged residue of a current account is lawfully owing.

 

I will contend additionally to my defence that should the amount comprise of unlawful penalties and collection fees and unfair interest that my defence is made pursuant to CPR 16.6 and therefore the contention may be included in the defence and set off against the claim, whether or not it is also a Part 20 claim.

 

With regards to the claimants statement and reference to s74b of the CCA 2006 the original creditor failed to comply and never provided notice of of unauthorised overdrawing or if there ever was unauthorised drawing which is irrelevant to my defence.

 

If a Notice of Assignment had been received then it would be true that it was a demand for payment...having never received such notice that point is irrelevant.

 

In response to the claimant contention that s98(1) does not apply by virtue of 98(6) :-

 

98 Duty to give notice of termination (non-default cases).

 

(1)The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ notice of the termination.

 

(6)Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

 

I will contend that there was no breach and ask them to define how can you breach an overdraft and to evidence any breach?Irrespective neither the original creditor nor the assignee can disclose such evidence or copy of Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and is therefore prevented from seeking any relief until such time they can pursuant to s98 (1)

 

With regards to Notice of Sums in Arrears although the claimant contends that under s13 of the CCA2006 there is no requirement to provide this notice

The defendant contends that as an assignee of this alleged debt that they are responsible not only for the benefits but the duties to comply with s86B which states the creditor or owner is responsible.As the alleged assignee they are the owner and only the legal owner is entitled to litigate on any debt outstanding.

 

Disclosure and CPR 31.14.

 

I will contend that this request is applicable to the claim as at the time of the request the claim had not been allocated,with regards to the claimants statement " is under no duty to disclose such documents until directed by the court " the Court had already on 2 previous occasions requested disclosure which the claimant has still failed to comply with.....apart form reconstituted versions on the day of the last hearing in an attempt to ambush the claim which astonishingly the court allowed as admissible.

 

The next statement by the claimant is quite bemusing in that " in any event at the time documents were requested judgment had already been entered and therefore it was necessary to disclose such documents"

 

The documents were requested within immediate receipt of the claim form.Before acknowledgement of service and in the interim period of 28 days to submit a defence. Therefore it is brought to the courts attention how the claimant is misleading the court and their behaviour quite vexatious.

 

Conclusion

 

The judgment entered is Irregular having submitted an Acknowledgement of Service.

The claimant fails to substantiate any evidence or grounds that they are legally entitled to litigate or to quantify the amount claimed.

The defendant respectfully requests that the court accepts that it is a Irregular judgment and would expect the court to uphold the law CCA1974 and follow the CPR and allow this application.

 

The defendant also request further costs and occasioned in dealing with this claim.

 

STATEMENT OF TRUTH

 

 

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

 

Dated this day of xxxxxxxxx

[connect4]

Hi Andy

Thank you for your reply,the only problem might be the time scale from AOS to default judgment and my appp for set aside according to DJ

Regards connect 4

[AndyOrch]

That reply took me 3 hours to draft

 

 

I dont understand please expand?

[connect4]

I am not sure myself what the DJ meant. He said after I argued the case for set aside that I had 14 days after the initial 14 days to apply for the set aside and that my application was longer than that time(which i asume they argue is then regular and not irregular) and he asked the other side how much were there costs to date so I was aware of the possible amount of costs if I loose case. He also said it may be worth me negotiating a deal. Every time i go to court there seems to be a difference in what is said. I appreciate all you have done for me last night and I am still going to fight this all the way. I will be filing response later and wait for another date. I will also send a donation

Thank you once again

Connect 4

[AndyOrch]

Regular and irregular judgements have nothing to do with time taken to set a side.

 

A Regular default judgment = no acknowledgement no defence.

An Irregular judgment = If you have either acknowledged service but not submitted a defence.

 

Just file your WS at least 3 days or even better 7 pre hearing on the court and claimant...see what transpires.

 

Andy

[connect4]

Ok so i dont have to worry about getting reply to court today? DJ gave 14 days to put into court a reply and for next available date for hearing after then. I would imagine it will be some time before the next date for hearing with holidays etc, the last one was two months on from initial hearing. If it is not necessary to rush today I will wait for court date and then send copy to court and claimant solicitors

Thank you once again for your time Andy

Regards connect 4

Regular and irregular judgements have nothing to do with time taken to set a side.

 

A Regular default judgment = no acknowledgement no defence.

An Irregular judgment = If you have either acknowledged service but not submitted a defence.

 

Just file your WS at least 3 days or even better 7 pre hearing on the court and claimant...see what transpires.

 

Andy

[AndyOrch]

If the DJ stated a WS must be submitted within 14 days then you had better submit now if not too late......there wont be a further hearing until they consider your WS.

[connect4]

Hi Andy

The order came through today and it did say I needed to submit my WS couple of days before so I have missed the deadline. The hearing is dated next month so if I submit the WS now would it still be valid?

Regards connect 4

[Guest]

edit

[AndyOrch]

Hi Andy

The order came through today and it did say I needed to submit my WS couple of days before so I have missed the deadline. The hearing is dated next month so if I submit the WS now would it still be valid?

Regards connect 4

 

Then just submit 7 days before that date,

 

Regards

 

Andy

[connect4]

Hi Andy, everyone

Good news

 

 

the DJ ruled in my favour for a set aside, not for the reasons i thought though.

 

 

The dj ruled that the judgment was regular because i never filed a defence in the following 14 days from the original 14 days

from receiving judgment when i sent an acknowledge of service,

 

 

In otherwords you get 28 days to file a defence if you aos. And it will cost you the fees for otherside too.

That bit over i now need to file a defence for the small claims court.

 

 

it will be similar to the last one submitted.

 

 

The reason set aside was granted was because the claimant could only provide a part copy of the statement

all charges could not be assertained

(whether i could claim any charges back and how much debt was made up of charges)

 

I was going to submit same or similar defence regarding the section on charges,

 

 

the dj said if they cannot come up with the complete statement i will win the case

if they do come up with it they will win.

 

 

Should i submit the same as before regrding the charges section of my previous defence?

 

 

the rest of my previous defence i dont think will apply.

 

Regards

 

 

connect 4

[unclebulgaria67]

Sounds like you were lucky with the Judge.

 

 

Going by previous posting on CAG, they are often not that thorough.

 

When is your defence due ?

 

What information do you have available that might help you broaden the defence ?

 

I wonder whether in defence using the Judges ruling for the set aside

and an offer by you to enter into mediation would work the best.

 

 

I have seen people reporting back on CAG that an offer of using mediation has made the claimant back off.

 

 

Presumably because they can't be bothered to incur costs going down that route.

[connect4]

Thank you for your reply,

 

 

my defence needs to be submitted just over a weeks time.

 

 

I dont think there is anything else i can add to defence,

 

 

the dj was very thorough in his summing up.

 

 

The one thing he did say about the agreement is on the first hearing it is in my Ws that i didnt deny or admit it

 

 

he said that wouldnt count in the hearing (this last hearing for set aside) that i denied it this time

 

 

i would think that denial would be kicked out as a part of defence for next time.

 

 

Unless anyone has any other ideas i think its like i said before it will be down to the statement appearing in full or not!!!

[connect4]

Thank you for your reply,

 

 

my defence needs to be submitted just over a weeks time.

 

 

I dont think there is anything else i can add to defence,

 

 

the dj was very thorough in his summing up.

 

 

The one thing he did say about the agreement is on the first hearing it is in my Ws that i didnt deny or admit it

 

 

he said that wouldnt count in the hearing (this last hearing for set aside) that i denied it this time

 

 

i would think that denial would be kicked out as a part of defence for next time.

 

 

Unless anyone has any other ideas i think its like i said before it will be down to the statement appearing in full or not!!!

 

Hi Everyone. Just wondering if anyone can advise me what to include in my defence for pending small claims hearing from the above defence for the set aside hearing or if there is anything i can add to my witness statement. Any help appreciated

Regards connect4

[AndyOrch]

Can you bring forward your initial defence connect4.

 

Andy

[connect4]

 

Hi Andy this is the defence you draughted for me for the set aside hearing. The DJ said i would use most of this for defence in the small claims court. Sorry not been back on here until I found out if BW sent in a WS in the specified time which they have not. They were also 3 days late in paying the fee for the hearing.The DJ at the set aside hearing gave them 28 days to lodge their defence after my defence which i filed in the 14 days I was given.

 

I have two questions;

Can I do anything about their lack of their WS ie get the claim thrown out of court as they have gone over the time limit set. And secondly the fact BW legal were 3 days past their time limit for paying the court fee set by the DJ.

 

Regards connect 4

Lowell BW legal claim form from old tsb current account

 

In the XXXXXXXXXXX county court Claim no.............

 

Between:

 

Claimant Lowell

 

Defendant Connect 4

 

 

 

 

Witness Statement in response to Claimants Witness Statement to set a side.

 

 

I connect 4 in addition to my defence will state as follow :

 

I make this statement in response to the claimants witness statement in opposition to my set a side application dated xxxxx of judgment dated xxxxxx which was not served pre hearing on either myself or the court and which disadvantaged me by not allowing the requisite 3 days to consider the claimants response to my proposed defence.

 

I will state the following in response and follow the order of their WS.

 

It is denied that I entered into an agreement...it was a current account which is not subject to an agreement but a service facility which is exempt from the CCA1974 except for part V nor is it denied that I have in the past held various accounts with the original creditor (insert name).

 

Assignment of debt

 

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.It is accepted that a copy was produced on the day of the hearing which I understand to be a reconstituted version which carries little bearing on any validity it purports to convince and is de facto.

 

Payment of debt

 

A part statement is not acceptable or appropriate in reflection to the alleged amount outstanding nor equates to how the figure has been quantified.

Previous requests by CPR 31.4 have been ignored previous requests by the court to disclose have also been ignored.The claimant confirms that no other documents are available from the original creditor and yet they wish to litigate on a figure that as yet to be substantiated.

 

I will contend that any alleged balance be it the result of unfair and extortionate bank charges/penalties being applied to the account and will assume as there is no original statements to quantify,the amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed or over limit payments and collection fees. 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.

 

Claimants response to Defendants defence

 

There is no question that the claim form was served nor is there a need for irrevocable presumption of good service....there had to be service as I acknowledged the claim on xxxxxxx.I was late submitting my defence because the claimant frustrated my attempts of clarification by way of a CPR 31.14 by refusing or ignoring this request.

 

Therefore the judgment is Irregular pursuant to the CCA1974 as an acknowledgement was submitted beit deficient of a defence for the above reasons and is therefore not a regular default judgment.It is my understanding that in this instance it is the law that the judgment is bad and must be set a side.

 

Definition of Default Judgment

 

Once a claim has been issued the defendant has 14 days in which to respond. If within that time they file an acknowledgement of service they are entitled to a further 14 days to return their defence. The law states that, if the defendant does not file an acknowledgmenticon of service or defence, the claimant is entitled to ask the court for a default judgment. A default judgment is, therefore, a judgment entered without a trial after the defendant’s failure to defend the claim.

 

Irregular Default Judgments

 

The law distinguishes between two types of default judgments: “regular” and “irregular” judgments. A default judgment will be irregular if it has been entered when:

 

• The defendant has filed an acknowledgement of service or a defence;

• The time for filing the acknowledgement or defence has not yet expired;

• The defendant has made an application to strike out the claim or for summary judgment;

• The defendant paid off the whole claim, including any costs and interest, before judgment was entered;

• The defendant has filed an admission to the debt and asked for time to pay.

 

A default judgment entered in any of these circumstances is not valid in law and the court must set it aside.

 

The defence filed is not a bare denial of the claim made against but seeks clarification that the claimant is legally entitled to seek relief not only a the legal owner but that they have also followed all the provisions laid out by law in the CCA1974.To quantify and prove the alleged residue of a current account is lawfully owing.

 

I will contend additionally to my defence that should the amount comprise of unlawful penalties and collection fees and unfair interest that my defence is made pursuant to CPR 16.6 and therefore the contention may be included in the defence and set off against the claim, whether or not it is also a Part 20 claim.

 

With regards to the claimants statement and reference to s74b of the CCA 2006 the original creditor failed to comply and never provided notice of of unauthorised overdrawing or if there ever was unauthorised drawing which is irrelevant to my defence.

 

If a Notice of Assignment had been received then it would be true that it was a demand for payment...having never received such notice that point is irrelevant.

 

In response to the claimant contention that s98(1) does not apply by virtue of 98(6) :-

 

98 Duty to give notice of termination (non-default cases).

 

(1)The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ notice of the termination.

 

(6)Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

 

I will contend that there was no breach and ask them to define how can you breach an overdraft and to evidence any breach?Irrespective neither the original creditor nor the assignee can disclose such evidence or copy of Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and is therefore prevented from seeking any relief until such time they can pursuant to s98 (1)

 

With regards to Notice of Sums in Arrears although the claimant contends that under s13 of the CCA2006 there is no requirement to provide this notice

The defendant contends that as an assignee of this alleged debt that they are responsible not only for the benefits but the duties to comply with s86B which states the creditor or owner is responsible.As the alleged assignee they are the owner and only the legal owner is entitled to litigate on any debt outstanding.

 

Disclosure and CPR 31.14.

 

I will contend that this request is applicable to the claim as at the time of the request the claim had not been allocated,with regards to the claimants statement " is under no duty to disclose such documents until directed by the court " the Court had already on 2 previous occasions requested disclosure which the claimant has still failed to comply with.....apart form reconstituted versions on the day of the last hearing in an attempt to ambush the claim which astonishingly the court allowed as admissible.

 

The next statement by the claimant is quite bemusing in that " in any event at the time documents were requested judgment had already been entered and therefore it was necessary to disclose such documents"

 

The documents were requested within immediate receipt of the claim form.Before acknowledgement of service and in the interim period of 28 days to submit a defence. Therefore it is brought to the courts attention how the claimant is misleading the court and their behaviour quite vexatious.

 

Conclusion

 

The judgment entered is Irregular having submitted an Acknowledgement of Service.

The claimant fails to substantiate any evidence or grounds that they are legally entitled to litigate or to quantify the amount claimed.

The defendant respectfully requests that the court accepts that it is a Irregular judgment and would expect the court to uphold the law CCA1974 and follow the CPR and allow this application.

 

The defendant also request further costs and occasioned in dealing with this claim.

 

STATEMENT OF TRUTH

 

 

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

 

Dated this day of xxxxxxxxx

[AndyOrch]

If they have failed to serve their response to you and the court then they have nothing to rely upon...so it will balance on your evidence alone connect.

Judging from the Judges comment they are already on thin ice...what date are you back in court?

[connect4]

Thank you for reply Andy

 

The Court date is mid January. They paid the £300+ court fee 3 days after the deadline, which seems odd. I asked the court if BW had filed a defence and the only thing they sent in was the court fee. I assume they are hoping a full statement will appear so they can ambush me on the day again.

 

Have you any advice on the matter

 

Regards connect4

[AndyOrch]

Its not a defence ...its a witness statement connect....and if they have not complied with the court directions and served it on time directed then you have leave to make application to ask the court to strike out their claim on the grounds of failing to comply...

[connect4]

Final update

 

Hi Andy and everyone following this thread.

 

Had some good news

 

 

when i arrived at the hearing there was no new documentation from the claimant solicitors

 

 

when the hearing took place the district judge decided there was no case for me to answer as they had not provided a full statement

(claimant only provided a part statement showing a few bank charges) showing how the claimed debt had been made up and dismissed the case.

 

When i first received this claim i thought i would loose this case as i didn't understand how it all works,

 

 

a big thanks to Andy and the Cag team for my defence and for giving me the confidence to defend myself. I couldn't have done it without you.

 

It is really worthwhile fighting the debt management companies as they did try to bully and hound me,

but if you have a defence that will stand up the district judges, as i found,

are very fair and look into everything about the case details,

even if like me you may have missed a point which could turn out to be a winner.

 

Good luck to all fighting their cases and i hope this thread may help.

 

connect4

[dx100uk]

well done

 

 

dx

 

 

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[AndyOrch]

Well done Connect...delighted that this has been resolved.

 

Thread title amended to reflect the outcome.

 

Andy

[thunderballs]

Excellent. LTSB and Lowell are two of my least favourite companies.

 

Shame this doesn't happen every time.

[AndyOrch]

Excellent. LTSB and Lowell are two of my least favourite companies.

 

Shame this doesn't happen every time.

 

It does...quite frequently here:madgrin: