Lowells Claimforn - old Capital One***Claim Discontinued***

[jack21]

Hi Andy

 

Had the hearing today and was successful in getting the judgement set aside with a new hearing date to be set.

 

The judge was satisfied pretty much immediately, after about 2 minutes, that I wasn't aware of a hearing date but then he wanted to be sure I had grounds for a successful defence before setting aside.

 

my defence was based on the fact they had not supplied a compliant Notice of Default.

There was a lot of toing and froing between their solicitor, myself and the judge on the issue for about 25 minutes but he eventually ruled in my favour.

 

Thanks for all your help on this, it still isn't over, but I am now so relieved

[AndyOrch]

Well done Jack...just post to your thread when you are in receipt of the court order and further directions.I assume we will move straight to witness statements and disclosure.

[jack21]

Hi

 

I have now got a new hearing date for the above claim. The 25th August. I will need to submit witness statement and any other documents needed by the 11th August.

 

I will come up with a draft statement and put it up on here over the next few days. Would you be able to check over it for me?

 

Thanks

[AndyOrch]

[jack21]

Hi Andy

 

Please can you have a quick look at this witness statement.

 

The main points are :-

1. The credit agreement is deficient of the prescribed terms and is therefore incorrectly executed, pursuant of 61(1)a of the CCA.

2. An improperly executed agreement can only be enforced by way of order of the court, pursuant of 65(1) of the CCA.

3. The court is unable to make an enforcement order on a credit agreement deficient of the prescribed terms, pursuant of 127(3) of the CCA.

 

I have also included the fact they have failed to provide a valid copy of the default notice, however I don't know if that is necessary given the above points?

 

 

 

Thanks a lot for your help.

Lowell-Witness.pdf

[AndyOrch]

Good attempt Jack...you have all the main points covered.....I would also include the following before your first paragraph....

 

1. The claimants witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph. 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) and Section 2 (1) (A) of the Civil Evidence Act.

[jack21]

Thanks Andy

 

Based on the points made, can you see me not succeeding with the defence? I can't see how the judge can find in favour of the claimant as the defence is based on points of law and not open to interpretation by the judge.

[dx100uk]

its a witness statement not a defence..

[jack21]

it's a witness statement in support of the defence of the claim, is it not?

[AndyOrch]

Thanks Andy

 

Based on the points made, can you see me not succeeding with the defence? I can't see how the judge can find in favour of the claimant as the defence is based on points of law and not open to interpretation by the judge.

 

Any judgment should be based on points of law not interpretation...but that will be down to quality of the District Judge presiding.I really cant make any forecasts Jack as to how it will swing...all you can do is present the facts of the case and errors of the claimant pursuant to the CCA1974..whether or not he wishes to comply with the law is the judges decision.

[jack21]

Yes, as I understand it, in the points made in the witness statement for my defence the judge should not rule against it as they are based on points of law rather than being based on loose evidence supplied by the Claimant.

 

However,

seeing the quality of the judges that preside over such hearings, and how much opinion may be factor in their decision making, it may well go against me.

 

This would then leave the Judge open to an appeal on the judgement, as the defence was made on points of law and not matters open to interpretation.

 

I am quite sure that no judge would willingly make them selves open to an appeal on a judgement, no matter what opinion they have of the case.

 

If things turn out badly, it goes to an appeal.

 

chances of success should be better than good, but it depends on the judge.

 

Which I think is crazy, to be honest.

[jack21]

Hi

 

Just letting you know

 

I got a letter from Lowells, they are discontinuing the claim. Got a copy of the discontinuance form as well.

 

Thanks for all your help. I''ll be making a donation shortly.

[dx100uk]

hey you won!!

 

 

well done cag

[AndyOrch]

Hey good news Jack and a very well done...persistence paid off in the end.

 

Thread title amended to reflect the outcome

 

Delighted for you.

 

Andy