BW/Lowell claimform - old CapitalOne 'debt'***Claim Discontinued***

[AndyOrch]

@Andy - the notice allocation I received in Dec doesn't have any dates for WS to be submitted just dates for DQ form. Is it fair to assume that I'll receive another notice allocation?

 

Refer to the last one you received after submitting your DQ re mediation...what does it state if mediation fails?

[bgizzle]

Refer to the last one you received after submitting your DQ re mediation...what does it state if mediation fails?

 

On The actual notice of proposed allocation to SCT it states the dates for submission for DQ and attaches the form N180 and EX730 guidance which has no dates.

 

https://www.moneyclaimsuk.co.uk/PDFForms/EX730.pdf

 

As you can see on Pg 3 of EX730 - All it says is "If the matter goes to a court hearing, the claimant will have to pay a hearing fee (or the

defendant if the matter proceeds on a counter-claim only)."

 

I called Northampton who inform me its now with my local court and they will contact me with Dates etc.

 

I rang the court and they informed me that it will be passed on to a judge and i'll be written to with any additional directions

[AndyOrch]

Okay so your local county court as yet to issue Notice of Allocation and directions.

[bgizzle]

yes. that is correct

[bgizzle]

Update:

Today I received something from the local County Court. General form of Judgement or Order. The District Judge stated te following

 

1. The claimant shall by DDMMYYYY file and serve a reply to defence setting out why it avers the claim is not statute barred.

2. Should the Claimant fail to comply with this order the claim shall stand automatically struck out

3. Because this order has been made without hearing, the parties have the right to apply to have the order set aside, varied or stayed. A party making such an application must send an application to the court (together with any appropriate fee) to arrive within seven days of this Order

 

Dated: 17th Feb 2015

 

What does this mean please? I am confused. Do I need to do anything?

 

I was starting to jot down points I wanted to make in my WS.

[oleg]

You don't have to do anything at this stage.

 

The Opposition now have to produce evidence that the account is not statute barred, otherwise the claim will be struck out - thrown out - automatically.

[bgizzle]

Thanks for providing some clarity Oleg. I will assume they will respond with their earlier position of default date so I need to finalise my WS.

 

Any templates I can modify?

[dx100uk]

theres no such templates

 

 

a WS is unique to each scenario.

 

 

you could browse the successes forum as get an idea

 

 

though until they do provide 'what' they are going to rely upon

there little point in constructing much.

 

 

they'll prob not even bother.

 

 

dx

[bgizzle]

theres no such templates

 

 

a WS is unique to each scenario.

 

 

you could browse the successes forum as get an idea

 

 

though until they do provide 'what' they are going to rely upon

there little point in constructing much.

 

 

they'll prob not even bother.

 

 

dx

 

I will hold fire and see what they do. Thanks for the support all

[AndyOrch]

1. The claimant shall by DDMMYYYY file and serve a reply to defence setting out why it avers the claim is not statute barred

 

Keep your eye on that date and keep checking with the court bg.

 

Andy

[bgizzle]

1. The claimant shall by DDMMYYYY file and serve a reply to defence setting out why it avers the claim is not statute barred

 

Keep your eye on that date and keep checking with the court bg.

 

Andy

 

Will do and keep informed

[bgizzle]

So folks.. the DDMMYYYY has come and gone and

 

 

BW have responded 'allegedly' within the window with a reply to my defence

with 13 points which more or less insists that the claim isn't statute barred

( based Default date = cause of action),

references and

produces the uneforceable credit agreement,

Statement of accounts from Cap1 computer system (not the standard ones with Name/Address/logo) &

some screenshots from their case mgt system.

 

I imagine the Judge will ask that I submit a WS and send out a DQ with his/her instructions.

 

 

In order to be ahead of the curve I need the help of the gurus for my WS.

 

I 'think' it will centre around

 

• Statute Barred: Cause of action being last payment date
  
• Uneforceable Credit Agreement
  
• No Notice of Allocation provided when CPR request made
  

 

Also is a Reply to Defence the same thing as a Witness Statement?

[AndyOrch]

Check with the court see if they have served the same on them.....If you could scan in or type out their Witness Statement (verbatim) so we can see their arguments BG

 

Yes their WS is their response to your defence.

 

Andy

[bgizzle]

Good point Andy - I will check with the court later on today.

 

Once I get a moment I will also scan or type out the arguments they put fwd

[bgizzle]

Lowell Portfolio V Bgizzle

Reply to Defence

 

1. Save for Paragraph 1 of the Defendants defence, the claimant denies the allegations contained in the defence and repeats and relies upon the facts and matters set out in the POC
   
2. With Respect to Paragraph 2 of the Defence the claimant denies that the claim is SB pursuant to provisions of section 5 of the limitation act 1980 and/or that 6yrs has lapsed since the claimants cause of action against the defendant accrued.
   
3. The defendant does not deny entering into a credit agreement ("Agreement") with the original creditor, Capital One (Europe) Plc. A copy of the Credit agreement is produced and marked XXX[1-2]
   
4. The defendant does not dispute the fact that the rights and benefits of the Agreement have been legally assigned to the claimant
   
5. Bar the defendants assertion that the claim is allegedly SB, there is no other defence to the claimants claim
   
6. Now Produced and marked XXX1 [3-22] is a copy of the defendants statement of account with the originating creditor
   
7. The statement of account clearly breaks down the sums originating from the defendants agreement and these sums remain due and payable by the defendant
   
8. Now Produced and marked XXX1[23-24] are screen shots of the claimant's case mgt system which is exhibited for the purpose of providing further details regarding the defendants agreement/account with the originating creditor.
   
9. The exhibit in particular evidences that the defendant defaulted on his contractual payments to the creditor on 10th Nov 2008 after taking into account the defendants last payment of £29 in July 2008 which is shown on the statement of account.
   
10. The claimants cause of action runs from the date of the breach that is 10 November 2008
    
11. As the claimants claim was issued on 29 Sept 2014, 6 years have not lapsed since the defendant's breach occured. The claim has been issued within the limitation period.
    
12. The defendant's defence is therefore entirely devoid of any merit and is liable to be struck out.
    
13. The claimant invites the court to strike out the defendants defence pursuant to cpr 3.4 and that an order be made enabling the claimant to enter judgement for the sums claimed plus interest and costs.
    

 

The Claimant believes that the facts stated in this reply to defence are true. I am duly authorised by the claimant to sign this statement

XXX

[AndyOrch]

I have been in contact with Cap 1 who inform me that the default notice was dated 8th October 2008 and default entered on 10th Nov 2008.

 

 

Looks like they are in time by 10 days..depending on how the court accepts it ...last payment and acknowledgement or the cause of action

 

10.The claimants cause of action runs from the date of the breach that is 10 November 2008

 

not ......its the 8th Oct 2008

 

Could go any way

 

Andy

[bgizzle]

This goes back to the argument (debate) of what cause of action is. Last payment vs. Default date.

 

How do I make that argument in my witness statement? Are there Legal precedence etc. I can refer to?

[AndyOrch]

There are none Bgiz...it all comes down to the District Judges interpretation and how hot he is on the CCA1974

[AndyOrch]

Contract

 

Within six years of the date of breach

The cause of action occurs as soon as the contract is breached.

 

You breached the agreement 29th July 2008..therefore it is past the 6 years before they issued the claim on the 29th Sept...by 2 months

[bgizzle]

Contract

 

Within six years of the date of breach

The cause of action occurs as soon as the contract is breached.

 

You breached the agreement 29th July 2008..therefore it is past the 6 years before they issued the claim on the 29th Sept...by 2 months

 

That's the bit I was looking for. Is that from a section of the CCA 1974 document?

[AndyOrch]

No its my own knowledge and how most courts view cause of action...the Limitation Act is a very broad explanation which covers different types of limitations to different types of breach.

Cause of action cant apply from when the claimant decides to issue a Default Notice (most dont and even more forget)...otherwise they could extend the limitation period to desired length...its from when you breached the contract your first missed payment plus 1 month.

[Northernpug]

I have a vested interst in this statute barred scenario as I have one debt that is statute barred if you take the last payment into account

but the default date is still a couple of months away - and Lowells are the DCA!

 

 

A little bit of panic arose when i noticed posts where Lowells are claiming thats a debt becomes SB 6 years after default date.

 

 

I came across another post that stated the precedent they are quoting is BMW FINANCIAL SERVICE (GB) LIMITED Vs.HART

the appeal of which is here http://www.bailii.org/ew/cases/EWCA/Civ/2012/1959.html .

 

 

My understanding is that this case refers to a Hire Purchase agreement and the agreement wording stated that even if a payment wasn't made,

the creditors couldn't demand full payment of amounts outstanding until the agreement had been terminated in writing

hence why it was upheld that SB only applied after the default notice was issued.

 

 

Under a credit card agreement, the creditor is entitled to "call in" all amounts outstanding imediately upon a missed payment

and therefore the clock starts clicking from the last missed payment.

 

 

Date of last payment +30 days as Andy has mentioned is reasonable as it gives the creditor time to send a breach

and remedy notice then formally terminate the agreement in accordance with any statutory requirements.

 

 

So, in my opinion Reeves v Butcher [1891] 2 QB 509 still applies and is not overuled by BMW vs. Hart.

[AndyOrch]

Absolutely NP in BMW it is quite unique because its an HP agreement and their terms and conditions backed up their arguments...whether the T&Cs are lawful with the CCA1974 is another argument

[bgizzle]

I have read from quite a few sources that this is the approach Lowell and BW are taking in various cases. Hopefully the District Judges will wise up to this angle. In my case I pray I get a judge who is quite knowledgeable

[bgizzle]

Apologies for the disappearing act.

 

Some family emergencies have made it near impossible to focus and draw up WS. Please find below a DRAFT copy of my WS. Court date 18 June. Thoughts and suggestions?

 

IN THE COUNTY COURT AT

 

Claim No. XXXXXX

 

BETWEEN:

LOWELL PORTFOLIO 1 LTD Claimant

- and -

BGIZZLE Defendant

 

_________________________________

WITNESS STATEMENT OF BGIZZLE

_________________________________

 

I XXXXX of XXXXX being the Defendant in this case will state as follows;

 

1. I make this Witness Statement in support of my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

 

The Debt is Time Statute Barred

2. The Debt claimed by the Claimant in this action against me is time Statute Barred.

 

3. In Paragraph 10 and 11 of the claimant’s witness statement it is stated that the claimant’s cause of action runs from the date of the breach that is 10 November 2008 and the claim has been issued within the limitation period.

 

4. The defendant denies this is the case and believes the claimant to be relying on the precedent in BMW FINANCIAL SERVICE (GB) LIMITED vs. HART which is not applicable in this case as that case refers to a Hire Purchase Agreement.

 

5. Under a credit card agreement which is a simple contract, the creditor is entitled to “all amounts outstanding immediately upon a missed payment”. With respect to this I draw the court’s attention to Reeves v. Butcher [1891] 2 QB 509.

 

6. The Limitation Act 1980 Section 5 says that the limitation period for simple contract debts is six years. The cause of action for simple contract debts, is usually when the agreement says the creditor is able to take court action because you have fallen behind with payments.

 

7. My last payment of £x was made to Capital One on 14th July 2008 online, it was approved and charged to Debit Card ending xxxx as confirmed by claimants submission to the court marked AAA [3-22]. The reference number for this payment is xxxxxxxx.

 

8. This means that the alleged debt became statute barred in July 2014. Therefore with the courts permission the claimant is put to strict proof to show otherwise

 

Non-compliance with Consumer Credit Act

9. In Paragraph 3 of the claimant’s witness statement, the claimant asserts that a copy of the credit agreement (“Agreement”) has been produced and marked AAA [1-2].

 

10. This document upon which claimant relies to bring an enforcement action under the consumer credit act does not contain the prescribed terms required in consumer credit (Agreements) Regulations and as a result is unenforceable.

 

11. The courts attention is drawn to section 127 (3) and Carey vs HSBC

 

12. Additional Submissions AAA1 [3-22] – Copy of Statement of Accounts and AAA [23-24] Screen shots of case management system do not replace a valid “Agreement”.

 

13. To date the claimant has failed to provide a valid Agreement. Therefore with the court’s permission the Claimant is put to strict proof to:

 

a) Show and disclose how the Defendant has entered into an agreement; and

b) Show and disclose how the Claimant has reached the amount claimed for;

c) Show how the agreement was legally terminated to allow the claimant relief.

d) Show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

14. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Statement of Truth

 

The Defendant believes that the facts stated in this Defence are true.

 

Signed Bgizzle

 

Dated .................................................. ....