Lowell claim form - old cat debt***Claim Dismissed***

[AndyOrch]

You have already submitted your Witness Statement Tulip...nothing further to submit.

 

Now that we have pinpointed the weakness of their claim and witness statement you need to research the necessity of a Default Notice in the legal process before the claimant can request relief of an agreement.

 

Read up on the CCA1974 and gather all your arguments to support this...then draft it into a skeleton argument ready for the hearing.

[Tulip637]

Right ill read some more.

My other points are that on the last page, the figures don't add up for what they say I owe.

 

And they didnt send any of the documents I asked for woth the cca request and stuff.

 

Is the lack of Default Notice my biggest and best argument?

[AndyOrch]

So they are still in default of your section 78 request....along with the Default Notice...your 2 key arguments.

[Tulip637]

Can i ask another couple of questions please..

 

I've been reading and reading and reading and now im getting confused and need to make sure I've got this right...

 

So my section 78 request, because they've not complied theyre in default and therefore shouldn't have been able to bring it to court?

 

The fact theyve not provide enough the default means it wasn't ever sent and thats against the law so they weren't even allowed to chase me for the money never mind bring it to court?

 

The skeleton argument, that's just for me and I don't have to hand that in to the judge or anything?

 

How do I lay it out and word it? Does it need to be very formal as the legal letters? I know their solicitor will try to tie me in knots and I need to be really confident with what I have and that ive got it right.

 

Can I say that within the cca requests i requested an itemised statement including details of all charges etc? Because they haven't sent those either. Or can I only argue the lack of Default?

 

Also, what's the thing with charges? I've read on loads of threads people saying claim back the charges first, why are they not legal? And how can they be reclaimed if they're in the credit agreement?

 

What happens if I win? I don't owe this money, ive not ordered anything after I cleared the balance therefore I cant owe it. God knows where their Iford has come from. But if i win can i have the default removed?

 

If i do win and the judge asks me about my costs, what do I say to that?

 

If i dont win do i pay in court for it to avoid the ccj? I read somewhere that that resets the clock on the debt, is that right that it will then last another 6 years?

 

Theyve added £93 on already to the amount they say I owe, is that their legal charges and can they be removed? Can the £180 charges that are on their statement be refunded?

[dx100uk]

Lots of falsehoods there

Not sure if any of those answers are from here anywhere

 

Copy and paste your thread title into the search CAG box of the top red toolbar

[Tulip637]

What do you mean by falsehoods? Have I got loads of it wrong?

[AndyOrch]

Can i ask another couple of questions please..

 

I've been reading and reading and reading and now im getting confused and need to make sure I've got this right...

 

So my section 78 request, because they've not complied theyre in default and therefore shouldn't have been able to bring it to court? No they can bring a claim to court but your defence as asked that the court order disclosure of the agreement which they must do to legally enforce the debt.They have not complied to your section 78 request so are in default...whilst in default they are not allowed to enforce an agreement

 

The fact theyve not provide enough the default means it wasn't ever sent and thats against the law so they weren't even allowed to chase me for the money never mind bring it to court? They can chase and ask for payment not against the law...but again they have to prove and show evidence that a default notice was sent before they can enforce the agreement

 

The skeleton argument, that's just for me and I don't have to hand that in to the judge or anything? Normally make 3 copies and hand it in on the day

 

How do I lay it out and word it? Does it need to be very formal as the legal letters? I know their solicitor will try to tie me in knots and I need to be really confident with what I have and that ive got it right.Its simply headed Skeleton Argument and its a set of bullet points with reference that you will raise as your arguments and is easy reference for you to hand.

Can I say that within the cca requests i requested an itemised statement including details of all charges etc? They should supply a snapshot statement with your CCA request ..not a full set o statements Because they haven't sent those either. Or can I only argue the lack of Default? No you are also arguing they have not complied with your CCA request for the agreement as already advised

Also, what's the thing with charges? I've read on loads of threads people saying claim back the charges first, why are they not legal? And how can they be reclaimed if they're in the credit agreement? Nothing to do with this court claim ignore

What happens if I win? The claim is dismissed I don't owe this money, ive not ordered anything after I cleared the balance therefore I cant owe it.Tell the judge and show your evidence God knows where their Iford has come from. But if i win can i have the default removed? No it will automatically fall off after 6 years from date placed

 

If i do win and the judge asks me about my costs, what do I say to that? He wont its Small Claims Track

 

If i dont win do i pay in court for it to avoid the ccj? No you pay the claimant I read somewhere that that resets the clock on the debt,Nonsense is that right that it will then last another 6 years? If you dont pay the CCJ that will show for a further 6 years

 

Theyve added £93 on already to the amount they say I owe, is that their legal charges and can they be removed? Irrelevant if the claim is dismissed if you lose then you have to pay that also Can the £180 charges that are on their statement be refunded?

Only if you start a claim against the original creditor...nothing to do with this claim

 

Andy

[Tulip637]

I'm still struggling writing this skeleton argument. Im an educated woman but this whole court thing is so far out of my comfort zone i feel almost illiterate. From what im reading it seems that the whole thing really depends on the judge you get and whether they choose to take notice of the laws surrounding this.

 

Is a skeleton argument necessary? My points have mainly been raised already in my ws. Or should I do one?

[shamrocker]

It's your chance to lay out in black and white why the claim fails - give each point it's own paragraph and add some content to back up each point. e.g. balance is made of of £180 penalty charges; non-compliance with s.78 request, no default notice issued (or included to show you defaulted and agreement was formally ended). Keep it simple. You can simply read it out in court, rather than having to speak without a script. Once the judge sees the point about lack of DN, along with the fact that you will point out in your skeleton that you requested it and also mention it in your defence....and that the claimant has neglected to touch upon it in their summary of your defence or include it within their WS, they're likely to roll their eyes in disbelief and want to get the hearing wrapped up pronto.

 

Although I haven't read through the whole thread, the crux of your position from what I can see is that you were upset initially (right? ;-) ) about the addition of penalty charges to your balance - you requested a copy of the agreement to satisfy yourself with regards the legal nature of them - OC didn't comply - you ceased payments until OC complied, which is your legal right under s.78 - OC sold the account - DN has never been issued so as to end the agreement (agreement is still live).

[Tulip637]

Tha k you for that sham x

 

No, I had the account, got i to some financial difficulties and made an arrangement to pay, and i paid it off. I found out my final statement saying it was clear. I then heard nothing from anyone u til i received the claim form saying goes i owe 233. Checked my credit file and I was defaulted for 161. Now theyre claiming 325 including costs.

I genuinely know nothing of this extra so it came as a shock. I made all the requests for do u mentioned and they sent nothing until this within their witness statement which still doesn't refer to a default notice never mind include a copy. They do state that sent a notice of Assignment to but they haven't included one and i certainly never recieved one. They have included a statement which states 149 of goods were ordered after I cleared the account, but I thought the account was closed. Then on top of that the statement says there's 180 of charges on there, which if they did win thats more than the amount I was defaulted for in the first place.

 

So I want to dispute the fact that there's any balance on there at all but their statement says there was so I don't know what I can say about that. Then there's the charges but I don't know how to attack that, if indeed I can at all? Then there's the notice of Assignment, default warning letter and default notice itself

[shamrocker]

Ah...Ok, I do remember now, you saying the balance was cleared. In that case, that's the way you need to play it. Simply pull their whole claim apart as concisely as you can and expose all the glaring faults, but the core theme is that there was no balance remaining when you settled it.

 

I notice too that there has been no interest charged to the account at any time? On the file log sheet they include, it also states the default balance as £161 (as you've already mentioned), not the £233 that they're chasing. Throw it all back at them and show the judge what an incompetent bunch of chancers they really are.

[Tulip637]

Thank you. If i post my skeleton argument would you take a look please? It'll be about 8 or clock before I can do it

[shamrocker]

Yeah, post it up for sure. Andyorch will be the best person to offer feedback though...he's the pro.

[Tulip637]

REALLY REALLY URGENT, PLEASE COULD SOMEONE HAVE A LOOK AT THIS FOR ME?

 

I know there are bits, probably most that need rewording which I am attempting again now, but this evening didn't go to plan so this is draft 1 of my skeleton argument which i need to rely on in the morning for court..

 

SKELETON ARGUMENT

 

As the defendant in this case, I wish to respectfully make the following points in my defence:

1. I had an account with this company, and when I fell into financial trouble, I made an arrangement to pay the outstanding balance. The final payment was in November 2014 and at that date the account was clear. I have not since that final statement received any correspondence whatsoever regarding this account until I received the claim form in July 2016.

 

I sent off a CPR 31.14 request for further information from the claimant. Though this was received, I have received no response from them at all with any of the documents.

 

I also sent a Section 78 request under the Consumer Credit Act 1974 requesting a statement of account. Again, this was not complied with therefore the claimants were in default of my request.

 

 

2. Through my defence, my CPR 31.14 and my Section 78 request I have made repeatedly raised the need for the Claimant to substantiate the claim by way of itemised statements which detail all transactions on the account and illustrate how the claim amount was arrived at.

The statement of account that was received along with the witness statement, as opposed to following my previous requests, were vague and confusing and there is no credible response as to how the various amounts have been arrived at.

In the unlikely event that I was mistaken and there was an unpaid balance on the account, the crude account summary as well as the file log from the claimant contains differing amounts:

• The claim management system screenshot states a default balance of £161

• The amount claimed for is £233

• The value of the goods allegedly ordered after the account was cleared was for £149

There is no explanation as to why these differences exist.

Furthermore the account summary also contains the amount of £180 for ‘charges’ on the account. These would very likely have no legal basis and are for more than the default balance of £161.

In summary, the claimant have not satisfactorily complied with my CCA and CPR requests, nor have they been able to clarify by way of an itemised list how the alleged balance was derived, or the legality of the charges applied to this balance.

 

3. The Claimants’ refer within their Particulars of Claim to their Notice of Assignment regarding this debt.

I did not receive any such correspondence from them.

A copy of the Notice of Assignment was requested within my CPR 31.14 request, which was not complied with. It was again asked for within my defence and this was not sent. Furthermore the Claimant refers to the Notice of Assignment at length within their witness statement but they have not included that within their disclosed documents.

Consequently the claimants have not complied with S136(1) of the Law of Property Act 1925 as they did not express in writing notice of their assignment.

 

4. Under section 87(1) of the Consumer Credit Act 1974, prior to a default notice being served a default warning letter detailing ways that the default can be resolved must be issued. Following this, if the account isn’t put right a Default Notice must be served.

This was referred to in the particulars of claim, however I did not receive either.

A copy was requested within my CPR 31.14 request, however this was not complied with. The Claimant does not mention the default notice, or the default warning letter within their witness statement, nor did they include a copy of one within their disclosed documents.

 

5. In conclusion, it is vehemently denied that this debt exists.

The claimants have not been able to substantiate the claim, they haven’t been able to clarify how or why the balance has been derived or that this debt exists.

The Claimants did not comply with my s. 78 request.

The claimants are in breach of S136(1) Law of Property Act 1925 as they did not express notice of assignment in writing.

The claimants are also in breach of Consumer Credit Act 1974 section 87(1) as they did not serve a default notice or a warning of default.

Consequently as the debt cannot be proven it must be inferred that the debt does not and never has existed. There is no outstanding balance. The Claimant has been unable to provide documentation to prove otherwise, therefore I respectfully request that the court dismiss this claim.

[Tulip637]

Draft number 2...

 

SKELETON ARGUMENT

 

As the defendant in this case, I wish to respectfully make the following points in my defence:

1. I had an account with this company, and when I fell into financial trouble, I made an arrangement to pay the outstanding balance. The final payment was in November 2014 and at that date the account was clear. I have not since that final statement received any correspondence whatsoever regarding this account until I received the claim form in July 2016.

 

I sent off a CPR 31.14 request for further information from the claimant. Though this was received, I have received no response from them at all with any of the documents.

 

I also sent a Section 78 request under the Consumer Credit Act 1974 requesting a statement of account. Again, this was not complied with therefore the claimants were in default of my request.

 

 

2. Through my defence, my CPR 31.14 and my Section 78 request I have repeatedly raised the need for the Claimant to substantiate the claim by way of itemised statements which detail all transactions on the account and illustrate how the claim amount was arrived at.

The statement of account that was received along with the witness statement, as opposed to following my previous requests, were vague and confusing and there is no credible response as to how the various amounts have been arrived at.

In the unlikely event that I was mistaken and there was an unpaid balance on the account, the crude account summary as well as the claim management system screenshot from the claimant contains differing amounts:

• The claim management system screenshot states a default balance of £161

• The amount claimed for is £233

• The value of the goods allegedly ordered after the account was cleared was for £149

There is no explanation as to why these differences exist.

Furthermore the account summary also contains the amount of £180 for ‘charges’ on the account. These would very likely have no legal basis and are for more than the default balance of £161.

In summary, the claimant have not satisfactorily complied with my CCA and CPR requests, nor have they been able to clarify by way of an itemised list how the alleged balance was derived, or the legality of the charges applied to this balance.

 

3. The Claimants’ refer within their Particulars of Claim to their Notice of Assignment regarding this debt.

I did not receive any such correspondence from them.

A copy of the Notice of Assignment was requested within my CPR 31.14 request, which was not complied with. It was again asked for within my defence and this was not sent. Furthermore the Claimant refers to the Notice of Assignment at length within their witness statement but they have not included that within their disclosed documents.

Consequently the claimants have not complied with S136(1) of the Law of Property Act 1925 as they did not express in writing notice of their assignment.

 

4. Under CCA 1974, Sections 87,88 a default notice in the prescribed form must be served, specifying the nature of the alleged breach, as well as outlining what action is required to remedy it and the date before which that action is to be taken. If this notice is not complied with a default can then be issued.

I have never received a default notice, nor was one produced following my Section 78 request, or within the disclosed documents. It was however referred to within the particulars of claim with no substantiation.

 

5. In conclusion, it is vehemently denied that this debt exists.

The claimants have not been able to substantiate the claim, they haven’t been able to clarify how or why the balance has been derived therefore prove that this debt exists.

The Claimants did not comply with my s. 78 request.

The claimants are in breach of S136(1) Law of Property Act 1925 as they did not express notice of assignment in writing.

The claimants are also in breach of Consumer Credit Act 1974 section 87 (1) as a default notice was not served.

Consequently as the debt cannot be proven it must be inferred that the debt does not and never has existed. There is no outstanding balance. The Claimant has been unable to provide documentation to prove otherwise, therefore I respectfully request that the court dismiss this claim.

[AndyOrch]

Thats fine Tulip...so you need to add the headers

 

In the XXXX County Court Before District Judge XXXXXXXX (insert name if you have it)

 

Claim number xxxxxxxx

 

Claimant V Defendant

 

Heading should be Defendants Skeleton Argument ...with the hearing date underneath the heading.

 

Your first Paragraph opens with .......

 

Introduction

 

1.This skeleton argument is filed in support of my defence dated xxxx and witness statement dated xxxxxx in this claim

 

 

Then add the above contents that you propose to rely on

 

Run 3 copies 1 for the court (ask the court manager to put it in your file on arrival at court when he checks you in.The second copy you must pass it to their Rep/Counsel/ and the third is for you which you keep in front of you and on top of your paperwork at all time....so you can quickly refer to if asked questions.

 

Andy

[Tulip637]

I'm at court and it looks like I have a long wait as no judge has been allocated yet.

A solicitor has turned up for them too which i wasnt actually expecting.

 

Im very nervous, is there any last minute advice anyone can give me?

 

Ahhh please help,

we've just been allocated a judge so ive handed in my skeleton argument but their representative has said that I can't use it because it had to be handed in 14 days prior.

 

 

Ive said ive been advised to do it anyway and then shes argued with the usher and got the usher to agree that i cant use it.

 

 

Theyve taken it anyway and will let the judge decide apparently did I d9 the right thing?

[honeybee13]

Hello there Tulip.

 

I'm not a legal person, but I would say you did the right thing. Let the judge decide.

 

Stay strong, you're doing well.

 

HB

[Tulip637]

Thank you. I just want it over with now

[AndyOrch]

A skeleton does not have to be handed in 14 days before...thats for a witness statement and 3 days before for a supplemental witness statement...hand a copy to the judge when you enter.

[Tulip637]

I won! Thank you all so much for all your help.

 

I'm just so relieved right now. I'll update with details later on, but in short it was allowed 90 minutes, but the whole thing was over in about 5 without me saying a word based on the arguments id submitted before!

[Old Cogger]

well done await report from you

[queensclose]

well done

would have loved to see their sad faces as they left the court

[AndyOrch]

Excellent news Tulip...a very well done I know you was nervous...but see how easy it is:wink:

 

Thread title amended to reflect the outcome.

 

Regards

 

Andy

[honeybee13]

That's great news, tulip, very well done.

 

HB