Lowell/shoe's Claimform - EGG Pers Loan

[shamrocker]

Hi,

 

I have now received all the court paperwork. The date is set for October. My initial defence was that I disputed ownership of the debt given no paperwork was provided. Their argument to the court is that as they have now provided paperwork (as I mentioned further up the thread) that they are entitled to pursue me.

 

Their paperwork claims that the last payment was in August 2010. I still dispute this though and their paperwork looks reconstituted (for example it isn't date stamped it says 'it was sent to you on X date'.

 

Do I have any leg to stand on with any of this? Or are they going to get this through with this paperwork? I cannot prove I didn't make a payment in August 2010 as I have no bank statements from back then (and changed banks since) I also haven't made any further defence as am unsure what I say on this front - other than I dispute the validity of the paperwork and as part of that dispute making a payment in 2010.

 

Any help hugely appreciated

 

Could you scan everything (minus identifiable info) you've received and post it up? It'll give everyone a better idea of the nitty gritty detail that we're dealing with.

[shamrocker]

You still haven't posted up copies of exhibits - i.e. the agreement, default notice, etc.

[shamrocker]

So there's no argument because my defence was filed as asking them to essentially prove it?

 

 

I cannot argue that the evidence since provided doesn't stack up?

 

Can you post up a copy of your witness statement(s)...minus any identifiable information?

 

When is your hearing date?

[shamrocker]

"The last time any of these debts were acknowledged was February 2011 when a dmp made a payment on my behalf."

 

Can you tell us more about this DMP you refer to?

[shamrocker]

So, were Payplan actually making payments on this debt at any time?

[shamrocker]

You don't need to send them anything - it's for them to show where the payments came from.

 

Their WS shows your last payment prior to default as 30/05/2007.

 

Is this, to your knowledge, the last payment that was made by you or on your behalf...or were other payments made after default?

[shamrocker]

Were you dealing with any other debts through Payplan at any time?

 

You don't send them anything.

 

Just bear with us and sit tight.

[shamrocker]

Thanks. But do I reply to them and say again no I'm not providing and the burden of proof is on them? Am not sure what to reply. And if I don't reply anything will it be held against me at court?

 

Have you submitted a witness statement for this yet?

 

P.S. I agree fully with DX.

Close off all open communication channels with them.

They are on the back foot and are looking for something to claw on to.

It's a load of nonsense what they're saying, so just keep posting on here and ask questions about your next moves.

[shamrocker]

Yes, you need to submit a witness statement which challenges certain aspects of the claim, notably on the point about it being statute barred.

 

I will pop back on later to help with getting something going. Hopefully we can get some input from Andyorch on the correct process.

 

This claim and thread seems a bit all over the place, so I'm personally struggling a bit to get my head fully around the whole circumstances, but replying to their emails on points like this is only adding to the general confusion. You need only communicate anything under order of the court - anything beyond that is unnecessary. You are the defendant - the onus is not on you to prove or disprove anything, so don't fret about bank statements. The objective will be to pin that task squarely on the shoulders of the claimant.

 

Have you got a copy of the court order for the Summary Judgement hearing? Can you post it up, minus any identifiable details?

[shamrocker]

And also any copy of their Witness statement in support...if any?

 

Andy

 

See post #69 Andy - http://www.consumeractiongroup.co.uk/forum/showthread.php?450937-Lowell-shoe-s-Claimform-EGG-Pers-Loan&p=4947981&viewfull=1#post4947981

 

It could do with having every page of the WS copied and uploaded in correct order, which would make it easier to follow.

[shamrocker]

Sorry Andy... it's #67

[shamrocker]

balina2 - this thread is worth a read. It's not detailed, but will give you a sort of snapshot of the situation you're in and hopefully the direction ahead:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?466164-MBNA-Restons-Statute-Barred-but-N244-submitted-for-strike-out-and-SJ***Claim-Struck-Out-with-Costs***(1-Viewing)-nbsp

[shamrocker]

I've been concerned that the court won't hear my dispute on Monday.

 

This Monday coming?

[shamrocker]

balina - you mention on page 1 that a DMP was making payments around 2011 to your debts on your behalf.

Can you explain how this arrangement worked?

[shamrocker]

That's what I initially thought but upon speaking to Payplan this wasn't the case, although we had arrangement on another debt in 2007. And they never made any payments to Arrows on my behalf as I never instructed them to nor had any dealings with Arrows directly myself.

 

Arrow didn't own the debt in 2010 (period covered by the statement), Egg did...right?

[shamrocker]

Arrow didn't own the debt in 2010 (period covered by the statement), Egg did...right?

 

Can you clarify the above for us?

[shamrocker]

Egg assigned it to Arrows in 2012

 

That's why they haven't paid anything to Arrow then. The payments relate to 2010.

 

Can you be certain that they didn't pay anything to Egg?

[shamrocker]

Which bank account do you mean?

 

You said the account that the loan repayments were coming from was closed in 2007.

I'm confused.

 

Don't give the claimant anything other that what you disclose in a WS.

[shamrocker]

They're asking for statements from the account that was paying the loan, are they not?

 

Is this new account the one you were paying funds into the DMP from?

[shamrocker]

Ok. Time to start writing a WS which denies the payments made in 2010 and asserts that the last payment/acknowledgement was 2007, as per their default notice (or whatever it is supposed to be), thus the debt is state barred. Put the claimant to strict proof as to the source of the payments they allege were made in 2010 in Exhibit [?].

[shamrocker]

You don't need to mention statements.

 

Keep it simple - you merely state that, further to receiving information outlined in the Claimant's WS, you now recognise the debt to be that of a previous agreement you entered into with the original creditor (assuming you accept the agreement as valid).

 

However, you considered the matter to be statute barred by virtue of the Limitations Act 1980, as the last payment or acknowledgement was in 2007. This coincides with the Default Notice exhibited by the Claimant.

 

The Claimant further discloses a statement of account covering the peroid xx/xx/xxxx to xx/xx/xxxx which indicates sporadic payments of £3.61 deducted from the account balance.

 

The payments were not made by you nor on your behalf, thus they are denied.

 

Consequently, the Claimant is put to strict proof to evidence any transaction history within the six year period prior to the date of claim issue, detailing the source of the payments...etc..etc.

 

Post draft up for review/feedback.

[shamrocker]

Have you had a read around of other example witness statements posted up on other threads?

[shamrocker]

I don't profess to be an expert on writing witness statements, but it needs better structure in my view, and also less detail with regards the questionable payments.

 

Something like....

 

 

1. I am the Defendant in this case and I make this witness statement in support of my application to set aside the default judgment in 31st October 2016 (date being rescheduled) [Judgement has not been made yet...right?]

 

2. In the absence of information with regards the nature of the claim, my Defence to the was set out so as to gain clarity on the source of the alleged debt and validity of the case put forward by the Claimant.

 

3. The Witness Statement of the Claimant confirms the debt to be a loan agreement I entered into with Egg in 2004(?). Therefore, it is accepted that an agreement, referred to in the Particulars of Claim as no. xxxxxxxxxxxxx, was entered into by the Defendant.

 

4. I defaulted on the loan agreement in 2007. This is confirmed by the Default Notice exhibited within the Claimant's Witness Statement as XYZ1. I have not made any payments or made acknowledgement towards this debt since 2007. Given that a period of six years or more had elapsed between the date of the last payment and the date the claim was issued, the debt is, therefore, statute barred by virtue of the Limitation Act 1980. Consequently, the Claimant has no legal recourse in this matter.

 

5. In the Claimant's Witness Statement, they disclose an account statement, exhibited XYZ2. The statement covers the period of August 2010 to August 2011 and includes a number of sporadic payments for the amounts of £3.61, which were deduced from the debt balance. They make the claim that further payments were made thereafter. I deny that these payments, or any payments for that matter, were made by me or on my behalf in the six years prior to the claim issue date.

 

6. In email communications with the Claimant's solicitor [Exhibit ABC1], they take the position that these payments defeat any assertion that the debt is statute barred.

Again, I reiterate that these payments, or any others, supposedly made by me or on my behalf within the six years prior to the claim date are denied.

 

7. The Claimant is, therefore, put to strict proof to disclose the specific details of any payments made towards the debt in the six year period prior to the claim date. The details should include - payee name, payment amount, payment method, account or reference number, and any other details they believe will assist with identifying the source of the alleged payments.

 

8. By reason 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.

 

I believe that the facts stated in this statement are true.

 

Signed: ...................................................

 

Dated this day of 4th October 2016

 

---------------------------------------------------------------------------------------------------------------------------------------------------------------

 

You need to add the correct header. Also, there are some bits in [brackets] that need to be corrected by you.

 

Hopefully Andyorch, DX, etc can offer some feedback on the above.

[shamrocker]

Thank you very much for this.

 

No date has been set yet - I checked with the Court today. Therefore am I requesting it is set aside? Is that the correct terminology?

 

No....this is your Witness Statement, and is a direct response to their evidence.

 

all your eggs are in one basket if you submit this as you're taking the position that the debt is yours but it's statute barred.

 

I'd ideally like Andyorch's feedback on this before you go submitting anything.

 

Have their solicitors been asking about bank statements again?

[shamrocker]

You need to submit a witness statement, otherwise their claim is pretty much uncontested. Draw Andyorch's attention to the WS I posted further up - see if he thinks it's ok.

 

You do not need to provide proof that payments weren't made.

You only need to make the assertion that they weren't made by you or on your behalf and request that the Claimant supplies full details of the payments and thus identify how those payments can be attributed to you.

 

If they come up with the payment source then you can then either accept or deny them, and in so doing, you might then (and only then) have to disclose account statements that disprove the Claimant's position.

 

Don't give them any details of your accounts unnecessarily - who know's what they'll concoct.

They're trying to confuse you.