PRA Claimform - Halifax credit card debt ***Claim Dismissed***

[AndyOrch]

Weak and very unlikely to be successful......

Edit to suit......

 

 

IN THE ******* county court
Claim No. ***********

BETWEEN:
Claimant


AND
Defendant
************

_________________________ ________

WITNESS STATEMENT OF **********
_________________________ ________



I ******, being the Defendant in this case will state as follows;

I make this Witness Statement in support of my defence in the claim.

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.

1. I understand that the claimant is an Assignee, a buyer of defunct or bad debts who are based in Jersey, which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already wrote off as a capital loss and claimed against taxable income as confirmed in the claimants witness statement exhibit by way of the Deed of Assignment

As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

2. On or around the ******, I received a claim from the County Court Business Centre, Northampton, for the amount of £****.The claimant contends that the claim is for the sum of £X in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The consumer credit Act 1974 (CCA).The particulars of claim fail to state when the alleged agreement was entered into but their witness statement states it was 1994 23 years ago.

3. Contained within the claimants particulars the claimant pleads that The defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA. It goes on to evidence a default notice in their exhibits which is provided by Mercers and not the actual creditor Barclaycard themselves.It is therefore contended that the original creditor failed to serve a valid Default Notice pursuant to section 87(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement.

Given that Mercers are in fact a Debt Collect Agency they cannot be considered to be the creditor or owner of the regulated agreement.

5. On the xxxxxxxxI made a formal written request by way of a CPR 31.14 to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT A]. 

6. On the xxxxxxx I made a formal written request to the Claimant for them to provide me with a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT C].
The claimant has since disclosed a copy of the application which purports to be the agreement within its witness statement at point 5 exhibit HT1 and admits its very poor quality.It is averred that it is impossible to read and illegible..the court is invited to try and decipher the contents and in particular the prescribed terms pursuant to section 78 CCA1974 and sec 61 (1) c of the CCA1974.

The claimant tries to get around the poor quality by trying to rely on Carey v HSBC.Carey V HSBC is irrelevant in this matter and only applies to the giving of information under section 77/78/79 and is not retrospective to agreements entered into pre April 2007.I therefore contend that section 127 (1 and 2) accordingly applies in this case.

7. Furthermore the author of the witness statement at point 6 then tries to introduce a reconstituted version of the agreement (exhibit HT2) which is no more than a set of Terms and Conditions and in no way comply with the prescribed terms of a reconstituted version which they have previously tried to rely on at point 5 of their witness statement.

8. The Claimants pleaded case is that the Defendant entered into an agreement with HSBC under account reference **********. I am uncertain as to which account this refers to. It is accepted that I have had banking products with Barclaycard in the past however I have no recollection the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim relies upon and not try to mislead the court.

Until such time the claimant can comply and disclose a true executed copy of the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974. 


Statement of Truth

I, ********, the Defendant, believe the facts stated within this Witness Statement to be true.


Signed: _________________________ _______

Dated: _________________________ _______[/QUOTE]

 

[amerillo]

I thought as much. I will re-draft.

 

Looking at point 6 in the example above, I can't see this applying to me as they have sent me a copy of the agreement, which is legible, and this agreement was dated in 2008 so certain other restrictions don't apply. So my only real issue is with the lack of default notice. Also, what about the fact that the statements they sent only show payments until 2010? Is this something to be used?

[AndyOrch]

Well I did say edit to suit...the above I drafted for another poster and his claim.

[amerillo]

So looking at this witness statement, it would seem that my defence is based around the absence of a valid (or rather ANY) Default Notice. I have another draft  written, nearly ready to post, but am still wondering whether the issue about the statements only showing payments until 2010 should be added in?

 

Thanks

AM

[AndyOrch]

Draft it.... post it here... and we will advise.

[amerillo]

OK, here is the re-draft. Thanks again!

Witness Statement re-draft.pdf

[AndyOrch]

Lets just remind ourselves what the claimants particulars were.

 

1.The Claimant claims the sum of £3395.00 for an outstanding debt owed.

 

2. On XX/XX/2008 the Defendant entered into an agreement with Lloyds Bank Plc for a Credit Card under reference XXXXXXXXXXXXXXXX.

 

3. On XX/XX/2010 the Defendant defaulted on the agreement with an outstanding balance of £3463.

 

4. On XX/XX/2018 the debt of £3395 was assigned to PRA Group (UK) Ltd.

Notices of assignment were sent to the Defendant in accordance with S136 Law of Property Act 1925.

 

5.AND THE CLAIMANT CLAIMS

1.The sum of £3395.

 

In your statement you refer at point 5.

 

Given that the Claimant is in fact a Debt Collect Agency, they cannot be considered to be the creditor or owner of the regulated agreement and therefore would not themselves be able to legally issue a valid Default Notice.

 

Change to Given that the Claimant is an Assignee of the agreement and due to  Section 82 Consumer Credit Act 1974 the European Union Directive Assignment of Rights.

16.5 The definition of "creditor" in section 189 of the CCA applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party."

 

With regards to your point 6 ,,,have you not been making £1 payments up until 2016 ?

 

Andy

[amerillo]

Ok, potential change of things here.........I have got PRAs statement now. Forget the statute barred thing in point 6, I will delete that, they have some print out of payments within the period. In light of what they have sent, my new focus is clearly on the Default Notice. They admit that no Default Notice exists, but have provided a SCREEN SHOT of an Excel spreadsheet of the default details saying that Lloyds have sent them that and using Gregory v MBNA Europe Bank Ltd, they can use this as inference that it was posted!

 

Should I post up a copy of what they have sent me?! It is pathetic........quite literally a VERY simple Excel sheet that doesn't even say "Lloyds" or "Halifax" anywhere, and I could literally knock up something like this is 10 mins on a computer! What's to say they didn't make it up themselves??

 

Now, I have read up on the Gregory v MBNA case from 2012, and there seems to be a big difference between that and my case. I that case, the Defendant was arguing that he never received the Default Notice in the post. The Claimant was able to actually produce a copy of the Notice in the hearing, and the judge ruled inference that it was posted due to the existence of the actual document. In MY case, they have not even produced a copy of the document, so how can there be inference that it existed simply based on a poor screen shot of a database that any Tom, Dick or Jane could have fabbed up?! Or have I completely misunderstood this case?

 

Furthermore, I found a more recent case (amazingly with PRA involved!!), from the end of 2017, where the judge ruled against PRA based on there being no Default Notice as PRA had attempted to fabricate one. Furthermore, in that case, the judge also ruled against PRA because it couldn't show evidence of

 

1. How MBNA produced default notices on it's computer system; and

2. How it posted notices out, including the method of posting, and whether 1st or 2nd class mail

 

Based on this, I very much doubt PRA can rely on what they have sent me as an inference, can they?!

 

I THINK I may have something here, but could be entirely wrong! Please help!!

 

For info: https://www.casemine.com/judgement/uk/5a8ff70960d03e7f57ea6587 - Gregory v MBNA case

For info: http://www.ewriter.eu/articles/SegalArt.pdf - recent PRA case from 2017

[AndyOrch]

Post a redacted copy...I've probably already seen this in other claims.....

[amerillo]

Thanks, here it is.

[AndyOrch]

Yes the old recreated on their own software screenshot...as if Halifax would retain data using MS Access.

 

Take a read of post#192 in the following thread...the witness statement may also be of use to you.

 

https://www.consumeractiongroup.co.uk/topic/395850-cabotrestons-claim-form-2-old-lloyds-credit-cards/page/8/?tab=comments#comment-4985679

 

[amerillo]

Interesting thread.......thank you. In light of this, I will draft up a turbo-charged witness statement and post it again if I may?

[amerillo]

Ok, I have just added to my statement and I think it is now vastly stronger than it was and feel like I perhaps have a chance of fighting this! Tell me what you think?

 

Just realised that I will meet the deadline to file this at the court, but will be late by a day filing with PRA, will it matter, so long as I post it on the 14th day before the hearing?

 

[amerillo]

Ok, just made some further amendments and tidied a few things up, so here is my (hopefully) final draft! 

Witness statement final.pdf

[AndyOrch]

Point 8....

 

Whilst I cannot prove the following, I strongly speculate that an organisation as established and profitable as Lloyds Group would opt for or very unlikely to adopt Microsoft Access to record details pertaining to customer accounts,

 

10. In light of the fact that I have never been served a Default Notice, the legislated fact that a Creditor cannot become legally entitled without having served a Default Notice (pursuant to S.87(1) CCA), and the Claimants clear inability to prove that it ever existed, it is respectfully requested that the Court instil the requirements of the Consumer Credit Act 1974 and that the pursuant legislation is adopted and applied in fairness and as intended.

 

For the aforesaid reasons the court is invited to dismiss this claim

[amerillo]

Great, I will make those changes.

 

Do you think it is a good idea to include the referenced case notes as my exhibits?

 

Also, at the end of point 7, I just added a quote from the judge in the PRA v Mr Segal case as per below. I don't want to look like I am being offensive to the judge, but it is a very relevant quote. Worth including??:

 

“The question for me is whether as matters stand in the light of the finding which I have made, MBNA was, and PRA is, entitled to treat the agreement as terminated and to recover the entire outstanding balance. The answer to that question is, by virtue of section 87, “no”. I shall therefore dismiss the action. I am not persuaded that by doing so I am imposing a civil penalty on PRA. Rather, PRA has by this action sought to exercise a right of enforcement which it does not have.”

 

 

[AndyOrch]

Very......

[amerillo]

Ok great. It's in there and I will print out the case notes of the referenced cases as exhibits and highlight the points of interest to make it easier for the judge. Decided against trying to make up my own version of their screenshot as I thought this might be seen as a little rude and actually doesn't add much to the case.

 

 

[AndyOrch]

I think once you plant the seed that its very unlikely the screen shot came from LLoyds and that they very unlikely to use that software...you dont need to state anymore.....let them prove otherwise.

[amerillo]

Feeling much more confident about my case now.......thanks for the help!

 

So to summarise:

 

1. I never received a default notice from Halifax all those years back. What I had previously believed to be a Default Notice sent by Halifax is nothing more than a pre-Default warning letter. For anyone else in my situation, make sure you check this guys! As I have learnt, an ACTUAL default notice that meets certain criteria according legislation is necessary before any creditor/assignee can have a claim.
2. PRA are not in possession of a Default Notice (clearly because as it was never issued by Halifax!) - they have admitted that they don't have this in their statement! Yet they are still trying to make a claim.
3. PRA have sent me a screenshot of a computer database saying they can use this to infer that a Notice was sent because of case law from 2012 (see my statement) - in the case they are referring to, there is NO mention of using a screenshot as proof and so their point is invalid! Surprises me that the "legal team" at PRA failed to recognise this mammoth difference!
4. More recent case law from 2017 shows PRA themselves losing a case based on an invalid Default Notice for various reasons, backing up my case (again, see my statement).
5. PRA have clearly made this screenshot up on their own system, claiming it was sent from Halifax (see a few posts up for the screenshot).

Now I'm certainly not saying this is a dead cert for me, but I definitely feel it is a strong case. We will just have to wait and see what happens on the day! I have a few queries regarding the actual hearing but will check back in closer to the time.

 

One question I have for now however is, if I were to win this, could this be sold on and then another CCJ applied for by another Assignee and the whole process start again from scratch?!

[AndyOrch]

Hi.....

 

I have just been having a tidy up in the Financial Legal Success Forum...moving concluded claims from the Financial Legal Issues forum....came across the following.

Im sure this will be of interest to you.

 

 

 

[amerillo]

Very interesting thread.......THANKS! Nice to see PRA v Segal coming up again as reference! Also great that the author of the thread stuck with it, because she won! Another bit of case law to be used in the fight against these companies.

 

That thread shows the exact kind of thing that these money chasing companies rely on........people caving in at the last minute and then them getting a judgement by default. Or even if not by default, I can imagine if a defendant didn't show up to a hearing, their chances of winning would be much improved!

 

Like mentioned on the thread, looks like it all comes down to the DJ and their grasp/interest in the legislation. If I could be certain that the DJ in my case would be keen on the legislation, then I would say that PRA might as well not show up to this hearing, nor waste any money paying a locum to represent them............they don't even have a fake Default Notice. Surprising as I would have thought that they would have tried to make one up! 

 

But unfortunately nobody can be certain of how the judge will view things, so not counting my chickens yet!

[amerillo]

Just noticed that my court paperwork says that my hearing "should only take about 60 mins"........from other threads that I have read, this seems like a very short amount of time! Does it mean anything?

[AndyOrch]

Not really thats about average for a SCT claim..depends how complex it gets...and what arguments you stick to them 

[amerillo]

Ok, well let's see. I'm hoping this will be pretty straight forward and be over in minutes (!!!), but who knows!

 

So just trying to prep myself for the actual hearing and have read some stuff on the CAB website about the actual event. I did want to attempt to go and view a hearing beforehand to know what to expect but I won't get a chance now. Is there anything on this site that describes the process in more detail that I can go through?

 

My only real worry with this is if the judge doesn't really "care" about the CCA and rules against me despite the legislation. I read in one thread that despite the legislation, the judge didn't seem particularly interested in the Defendant's case, asking "did you have the money and did you spend it?"! What would be a reasonable response to this?!

 

Thanks!