Lowell Claimform - Vanquis card debt - just got witness statement

[fred76]

Hi

 

Lowell have been chasing me for a debt for some time.

 

The letters they have sent have always been vague and I have written to them asking for assignment notices

/ original credit agreement and other information but never received a thing.

 

They are taking me to court and today I have received the court bundle they have submitted.

 

They are saying this is a debt to Vanquis Visa for £807.95.

They have a copy of my on-line application and statement. That's fine

- I don't dispute a debt to Visa, it's just never been clear what Lowell are chasing for

 

Lowell have included a copy of an assigment notice saying my account was sold to them on the 18th of December 2013.

The letter is dated 26th of December 2013 (Boxing Day).

 

They have included another letter, also dated 26th of December 2013 introducing Lowell.

 

They then include a letter from Vanquis dated 12th of August 2014 to me saying they had made a request for a hard copy of my application

which could not be provided as it was done on-line.

I have never made this request to Vanquis.

I have only requested a copy of the original credit agreement from Lowell.

 

They have sent a default letter from Vanquis dated 21st Feb 2013.

 

I have been resisting this case because I have never been clear what Lowell have been chasing.

I didn't get the letter they sent on Boxing Day 2013 and

I have sent letter after letter requesting the original credit agreement and had nothing back in reply

- just generic threatening letters.

 

The court date is the 19th of December.

Do I have any sort of defence here?

I don't mind paying Visa but I don't want a CCJ from Lowell

who have not provided me with ANY information about this debt over the last year or so.

 

Any help greatfully received.

[fred76]

Just to add a timeline I have pieced together from their court bundle:

 

25-4-2011 - Internet application to Vanquis made

 

05-08-2012 - Last activity on card by me

 

21-02-13 - Default letter from Vanquis

 

16-06-13 - Last charges added to account by Vanquis

 

26-12-13 - Notice of assignment from Lowell

 

Not sure if that helps at all

[ScarletPimpernel]

Moved to Financial Legal Issues where you are more likely to get help with a court claim.

[fred76]

Thank you

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**(1-Viewing)-nbsp

 

 

please fill this out

and post the results here

 

 

dx

[fred76]

Name of the Claimant ? LOWELL PORTFOLIO 1 LTD

Date of issue – COURT DATE SET FOR 19TH DECEMBER. WITNESS STATEMENT AND BUNDLE FROM BW LEGAL RECEIVED TODAY

 

What is the claim for – CLAIM OF THE CLAIMANT IS FOR PAYMENT OF THE PRINCIPLE SUM OF £808 BEING THE BALANCE OF MONISE DUE AGAINST A CREDIT CARD AGREEMENT BETWEEN THE DEFENADNT AND VANQUIS BANK LTS ("ORIGINATING CREDITOR/ VANQUIS")

The rights and benefits of the Agreement were duly assigned from the Originating Creditor to the Claimant by way of a debt of sale agreement dated 18/12/13 The Claiman'ts Claim against the Defendant is for the outstanding sums under the agreement which remain due and payable

 

THE AGREEMENT WAS SET UP AND SERVICED BY THE ORIGINATING CREDITOR UNDER THE ACCOUNT NUMBER XXXXX

 

What is the value of the claim? £808

 

Is the claim for a current or credit/loan account or mobile phone account? OLD CREDIT CARD

 

When did you enter into the original agreement before or after 2007? AFTER 2007

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. LOWELL

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? NO - THOUGH THEY HAVE SENT A COPY OF A NOTICE OF ASSIGNMENT DATED 26/12/13

 

Did you receive a Default Notice from the original creditor? NO - THOUGH THEY HAVE SENT A COPY OF A DEFAULT NOTICE DATED 21/02/13

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? NO

 

Why did you cease payments:- HARDSHIP

 

Was there a dispute with the original creditor that remains unresolved? NO

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? NO

[fred76]

Thank you

 

I have sent 4 letters to Lowell on this matter over 2014 asking for a copy of the original credit agreement but had no reply. There is a screen shot of my online application to Vanquis in the court bundle, but no terms and conditions. There is a letter from Vanquis in the court bundle saying they cannot give me a hard copy as it was an internet application - again there are no Ts and Cs, just a screenshot

[Old Cogger]

On line application post 2007 are acceptable, therefore Copy of a CCA1974 as such you are probably referring to is irrelevant, on line screenshot with X or tick is all that is needed also account showing transactions ?? others will advise no doubt?

 

What charges are there you can claim back???

 

As for T&Cs they are produced on line at inception for you to file/copy, that is what happened with me>

[fred76]

Yes, the letter says the Ts and Cs would have been produced at inception.

 

My defence really is that Lowell have never ever given me any detail of what the debt is for untill recieving the court docs.

 

I'm not sure if that helps me in any way

[fred76]

This is the Witness Statement I have prepared so far. If any could offer any advice or guidance on if it is ok I would be incredibly greatful

 

INTRODUCTION

1. I am the Defendant in this case.

 

2. I make this witness statement in preparation for the small claims hearing fixed for 19th December 2014 at 10:00.

 

3. Within this statement I make reference to various documents. These are now produced to me in a paginated bundle marked “SB1”.

 

DEFENCE

 

4. Throughout 2014 I have been in receipt of threatening letters from Lowell Portfolio 1 Ltd (the Claimant).

 

5. I have not been clear on what this alleged debt is for. I wrote to the Claimant on the 9th of January 2014, requesting that they provide me with a true copy of the credit agreement relating to the account, in accordance with s.77/78 of the Consumer Credit Act 1974. A copy of this letter is produced and marked SB1 [1].

 

6. I received no reply to this letter.

 

7. I wrote again to the Claimant on the 26th of February 2014. A copy of this letter is produced and marked SB1 [2].

 

8. I received no reply to this letter.

 

9. I wrote to the Claimant again on the 15th of April 2014. A copy of this letter is produced and marked SB1 [3].

 

10. I received no reply to this letter.

 

11. I wrote to the Claimant again on the 4th of August 2014. A copy of this letter is produced and marked SB1 [4].

 

12. I received no reply to this letter.

 

13. On 4 separate occasions the Claimant has failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the alleged account. On the 9th of January 2014, the 26th of February 2014, the 15th of April 2014 and the 4th of August 2014 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8.

 

14. The Consumer Credit Act allows 12 (+2) days for a request for a true copy of a credit agreement to be carried out before the Claimant enters into a default situation. This limit has expired. The Claimant failed to comply with my requests, and as such the account entered default on the 23rd of January 2014 and remains in default.

 

15. The document that the Claimant was obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, the Claimant was also obliged to send me a copy of that and no such document was sent.

16. Section 77(6) of the Consumer Credit Act states:

 

If the creditor fails to comply with Subsection (1)(a) He is not entitled , while the default continues, to enforce the agreement. Therefore this account has become unenforceable at law.

 

As the Claimant has failed to comply with a lawful request (on 4 separate occasions) for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested, any legal action you pursued will is both UNLAWFUL and VEXATIOUS.

 

17. It is my belief that as the account is in default, the Claimant is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and as such the following applies.

 

18. On the 11th of November 2014, I received a copy of the Claimants Witness Statement and Bundle. This contains a Notice of Assignment (RK1 [1-3] allegedly sent to me on Boxing Day, 26th December 2013. I did not receive this letter.

 

19. The bundle also contains a letter from Vanquis Visa, dated 12th of August 2014. This letter does not contain the original terms and conditions of the agreement or have a signature. It contains merely a screenshot of an on-line application for a credit card.

 

20. The letter claims to be in response to information I have requested from Vanquis Visa. I have made no such requests to Vanquis Visa (RK1 [4-6], only to the Claimant Lowell Porfolio 1 Ltd. I was not aware the debt being chased by the Claimant was in relation to Vanquis Visa as the Claimant has not at any time supplied me with details of the debt, or the original credit agreement or the terms and conditions of the debt, as required by the Consumer Credit Act of 1974.

 

21. The letter supplied by the Claimant in the court bundle (RK1 [4-6]) does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, in Schedule 6 Column 2 of SI 1983/1553:

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

 

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

 

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

 

For a Running Account (credit card) agreement BC and D are applicable

 

22. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

“127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

 

23. This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is respectfully drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

CONCLUSION

24. In the first instance, the Defendant request that the court exercises its discretion to strike out the Claimant’s Claim as the Claimant has on 4 separate occasions failed to comply with a Statutory Request under the Consumer Credit Act of 1974, thereby entering into a default situation. The Claimant is not permitted to enforce the agreement whilst the default is in place. Therefore I maintain this account has become unenforceable at law.

 

25. Alternatively the Defendant requests that no Judgement be entered against her at the hearing fixed for this matter.

 

26. The Defendant also respectfully requests that the costs of and occasioned in the dealing of this matter be settled by the Claimant.

 

27. The Defendant believes the facts in this statement are true.

[fred76]

I don't know if this is of any significance BUT

 

Both the letter from Vanquis saying they have sol dmy debt to Lowell and the letter from Lowell saying they have bought my debt from Vanquis are sent on the 26th of December 2013.

 

Neither have any logos on. The one from Vanquis is just a plain A4 white sheet - no address for Vanquis, no title for the person sending it, nothing. It looks fake.

 

Am I over thinking it to find it funny BOTH letters went out Boxing Day and the Vanquis one has no logos, address or job title from the sender?

[fred76]

Should I jsust cave and ring Lowell and sort a payment plan? I don't want to end up with a CCJ and loads of costs added on

[dx100uk]

THE AGREEMENT WAS SET UP AND SERVICED BY THE ORIGINATING CREDITOR UNDER THE ACCOUNT NUMBER XXXXX

 

 

is that all their poc says?

[fred76]

It goes on to the Assignment of Debt Heading

 

Which says "The rights and benefits of the Agreement were duly assigned from the Originating Creditor to the Claimant by way of a debt of sale agreement dated 18/12/13 The Claiman'ts Claim against the Defendant is for the outstanding sums under the agreement which remain due and payable".

 

Then it goes on to my defence, their response and their conclusion

 

Would it help if I typed all of those up?

 

Thank you for looking at this

[unclebulgaria67]

I may be wrong, but I thought it was a waste if time arguing about CCA's taken out after April 2007. This was an internet application from 2011. The reason why it won't work, is that I thought the revised Consumer Credit Act did not require a copy of the original agreement to be provided and that all the claimant had to do was to evidence the debt. A dispute about a CCA request might not be enough.

 

It may be better to see if the default notice issued was faulty e.g did not allow enough time and whether there are other problems with the account e.g excess charges. Then agree to enter into a mediation process to settle the matter.

 

Were Vanquis advised of hardship issues when a payment was missed ? If so what did they do to help ? Perhaps look at the banking code and FCA rules to see if there are any issues you can use to your advantage.

[fred76]

Hmm that doesn't sound promising

 

But the first time the Claimant has evidenced the debt is in the court bundle. They have not provided any evidence to me except now in the papers for the court

[havinastella]

As UB has pointed out, relying on small technical points will not stop you getting a CCJ here.

 

If this was me, I'd be working out what charges have been added to the account, deduct them from the total they are after and then contact the solicitor who is dealing with the claim and try to negotiate a Tomlin order.

 

A Tomlin order is a court order in the English civil justice system under which a court action is stayed, on terms which have been agreed in advance between the parties and which are included in a schedule to the order. As such, it is a form of consent order.

 

Should you miss a payment on the Tomlin order, they can obtain the CCJ, so try to agree to a realistic repayment plan.

[fred76]

Ok thanks

 

I will contact them then and try to get a Tomlin order and a payment plan

 

Thanks for all your help with this