Hoist/? claimform - old LLoyds Overdraft debt ***Claim Discontinued***

[woo14]

Hi all!

So I have received a date for the court hearing, 27th April.

I must say now I am slightly scared as I have no idea what to do now??

I still haven't received the information I requested at the start.

Your help is very much appreciated!

[AndyOrch]

So if you have the trial date...then you have the Notice of Allocation which contains the courts directions with regards to what both parties do next (this covers disclosure of documents and witness statements).

 

Do not miss the dates that you must comply with preparing both.

 

Regards

 

Andy

[woo14]

Hi Andy,

Thanks for your prompt reply.

I have the 'Notice of allocation to the small claims track (hearing)' letter in front of me.

It details the location/time etc. It also states that the claimant must pay a £335 fee before 22nd February.

It also says that: 'Each party shall deliver to every other party and to the court offices copies of all documents (including and experts' report) on which he intends to reply at the hearing no later than 14 days before the hearing.'

I don't have any documents or witness statements?

Thanks

[AndyOrch]

Yes you do ...your CPR 31.14 request and any response...thats evidence you requested they ignored....and your witness statement is your next task...you have to draft one.

[woo14]

Where do I start with the witness statement?

So I just use a copy of the letter I sent to their solicitors? They have ignored my request.

Do you think they actually have the documents and will they pay the £335 to take me to court if they don't?!

Thank you

[dx100uk]

just use our search cag box in the red toolbar woo

 

loads here already

 

witness statement overdraft

[woo14]

Thanks dx, will do.

If they can't produce the documents will the claim be dismissed?

Also do I have to go to court or can I just file the documents?

Thanks!

[AndyOrch]

As if by magic ..here is one I have already prepared.....edit to suit..do not copy and paste.

 

 

 

IN THE COUNTY COURT AT HALIFAX CLAIM NO:

 

BETWEEN:

LOWELL PORTFOLIO I LTD Claimant

-and-

XXXXXXXXXXXX Defendant

 

WITNESS STATEMANT OF XXXXXXXXX

 

I.Mr XXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1.It is admitted that I have held a current account with Lloyds in the past. The account was opened on or around xxx xxxx 19xx and used to facilitate the payment of my income and expenditure.

 

2.It is denied that I entered into an agreement on the 5th October 1998.It is admitted that I accepted a facility/service offered by Lloyds to be able to overdraw to a limit set and reviewed by Lloyds on the balance of the above current account.

 

3.It is denied that I exhausted or exceeded the overdraft facility limit rather a residue created by Lloyds due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair Terms in Consumer Contract Regulations 1999 on this point.

 

4.It is denied that I defaulted on an “ agreement “ an Overdraft Facility is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced.I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which Lloyds failed to comply with.

 

5. Again it is stressed that I was never informed of assignment of this debt neither by the original creditor nor the assignee. If the debt was assigned to the claimant on 24th June 2013 why do they state within their Witness Statement they allegedly served me on the 10th July 2014 (12 months after assignment)?.

 

For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136).Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned.

 

The assignment must be absolute.

 

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

 

Again it is denied any Notice of Assignment was ever received.

 

6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14

 

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

Show and evidence service of Notice served under Sections 76(1) and 98(1)

And to show how the claimant has legal right either under statute or equity to issue a claim in their name

 

Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

 

Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

 

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

 

It is totally unacceptable to suggest as per the Witness Statement point 12 that documents and T&Cs/statements were sent throughout duration of the account and purely an attempt to avoid its responsibilities in proving its claim or rather they do not hold any proof and not expected to validate their claim legally.

 

7. The claimant’s points at 13 & 14 are either an attempt to mislead the court or a lack of understanding of the CCA1974 legislation. You cannot request by way of a section 77/78/79 for copies of an Overdraft Facility arrangement, hence none was made. The claimant is still liable to disclose a copy of the facility arrangement confirmation and Terms and Conditions from that date pursuant to section 61B of the Consumer Credit Act.

 

My defence stated that the original Creditor failed to serve Notice under Sections 76(1) and 98(1) and are therefore prevented from enforcing or requesting any relief.

 

8. Point 16 of the Claimants Witness Statement is irrelevant and nonsensical

 

9. Point 17 again is irrelevant, neither the claimant nor its Witness are in a position to assume that anything has been previously provided, nor is it their concern. They the claimant in this matter and will have to disclose all documentation relied upon as the basis of their claim at trial.

 

As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

 

10. Point 18, it is the witness’s opinion only that my defence is not valid nor has prospect of success. It is in my opinion that the claimants claim is fanciful contains no proof, and uncorroborated. Totally unaware of the details of debt they have purchased and expecting judgment/relief be granted, relying on the court to base its decision on assumption and basis of probabilities.

 

It is therefore submitted that the claimants be ordered by the court to quantify ,verify, substantiate and disclose all evidence relied upon and should the claimant fail to that their claim be struck out under CPR 3.4 as having no basis.

 

I believe that the facts stated in this Witness Statement are true.

 

Signed ……………….

 

Dated on the day ………………..2017

[woo14]

Thanks Andy! So do I need to wait for their witness statement before finalising mine?

[AndyOrch]

Its always advantageous to wait as this gives you an heads up on the points they will rely on then you counter in your response witness statement...delighted you asked that question woo..shows you are listening to me:-)

[dx100uk]

:ear:

[woo14]

Ok great, so I'll await their witness statement.

Just a thought, would it not be in their interests to file their statement as late as possible so I do not have time counter it in my statement? Ie I have to submit my statements before receiving a copy of theirs?

Thanks

[AndyOrch]

You are both suppose to exchange simultaneously so this does not happen...I doubt they will even submit one or pay the fee woo...but you disregard that ...follow the courts directions and do all you have been advised...then there is no fault from your side.

 

We will advise further if they fail to comply with directions.

[woo14]

Ok thanks Andy.

I'll wait and see what happens in the next few weeks. I have until the beginning of April to submit my statement so I shall sit tight!

Many thanks for the advice once again

[woo14]

Good evening!

So I have spoken to the court and they have advised me that the hearing fee has been paid.

I guess they're serious!!

I've also still not received paperwork from them.

I'm getting concerned now that this judgement will go in their favour :/ the interest charges are horrendous!

Any thoughts?

Thanks

[dx100uk]

they only get that if they win AND the judge agrees to it...very doubtful on both counts

[woo14]

Fingers crossed dx!

I was just surprised that they forked out the £335.. Wouldn't have thought they would have done that if they didn't think they could win?!

[dx100uk]

its called a speculative claim

there are 750'000 issued a year!!

 

do the numbers!! 85% they win by default...because they go undefended

so its a default rubberstamped uncontested judgement where nothing is checked.

 

theres no human involved at all in most cases

just a PC and a printer

[woo14]

Hi guys!

So this worry is now keeping me awake!!

Just a few questions..

Can the judge impose the claim but reduce the ridiculous interest charges?

Also, is it necessary for me to attend the court if I have submitted a witness statement?

Thanks

[AndyOrch]

Imperative you attend the hearing even if you hadn't .

 

Andy

[woo14]

I will certainly attend the hearing. Although I do feel a little out of my depth now!

I've still not received any paperwork from hoist regarding the access request or their witness statement.

I've been reading a few other posts and it seems they may issue something to me when there is only a few days left until the deadline. I.e. giving me no time to respond.

I would very much appreciate some help in drafting my witness statement as I have no idea where to begin :/

Many thanks

[dx100uk]

use the search CAG box of the top red toolbar

 

 

witness statement bank account OD

or like words

numerous thread here with examples..

then pop up your attempt and we'll advise.

 

 

try and help yourself fist.

 

 

dx

[woo14]

Hi guys,

I've been reading a lot of threads using the search tool

but I can't seem to find an example of a WS where the defendant hasn't yet received the claimants witness statement to counter.

 

Can anyone point me in the right direction please?

Very much appreciated as I'm a bit lost!

 

I still haven't received anything from hoist.

 

Kind regards,

[dx100uk]

https://cse.google.co.uk/cse?cx=partner-pub-0964707606882478:652l7hswbgv&ie=UTF-8&q=The+defendant+has+failed+to+repay+overdrawn+sums+owing+under+the+terms+and+conditions+of+the+bank+account.&sa=Search+CAG#gsc.tab=0&gsc.q=The%20defendant%20has%20failed%20to%20repay%20overdrawn%20sums%20owing%20under%20the%20terms%20and%20conditions%20of%20the%20bank%20account.&gsc.page=1

[AndyOrch]

It helps if you do receive the claimants ws before submitting your own...but you wont find many as they always (if any) submit it at the death...and you really shouldn't need theirs to counter...your witness statement is n support of your defence..particularised in your own words.

 

Andy