Lowell claimform - old Shop Direct CAT debt***Claim Dismissed***

[The_Debt_Man]

Ok thanks

 

I'll have another try at a witness statement.

 

Using their one as a sort of guide, it seems like the witness statement is just saying the string of events.

But that's what I thought I did wrong with the one I sent you.

[AndyOrch]

Yes but you was going to use that as your initial defence... you had not got to witness statement stage.....we advised otherwise.....a defence is a defence and a witness statement is a witness statement two different beasts.

[The_Debt_Man]

Thanks again andy

 

I've just sent you the witness statement i sent you the last time as i think it was confusing that the subject had "defence" (i replied to an old pm from you).

 

Although ill need to modify it now we have their witness statement.

 

Do you think im on the right track?

 

I've just added a bit more to my witness statement and sent it to you.

 

I'm struggling a bit with my closing statement and could really use your help

 

Here's my witness statement so far:

 

IN THE xNAME OF COURTx COUNTY COURT

 

Claim No. XXXXXXXX

 

BETWEEN:

LOWELL PORTFOLIO I LDT

Claimant

- and –

Defendant

X MY NAME X

 

_________________________ ________

 

WITNESS STATEMENT OF X MY NAME X

_________________________ ________

 

 

 

I X MY NAME X of X MY ADDRESS X being the Defendant in this case will state as follows;

 

 

1. I make this Witness Statement in support of my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

 

2. On X DATE X I received a Court Claim Form stating that LOWELL Portfolio Ltd was requesting the sum of £3,190.05

 

3. On x DATE x I made a written CCA Request to the Claimant and a CPR 31:14 request to the Claimants solicitors, xxxxxxxxxxxxxxxxx of xxxxxx address xxxxxxxxxxxx requesting that the Claimant/And Claimants Solicitors provides copies of all documents mentioned in the statement of case.[EXHIBIT A]

 

4: On x DATE x I received a letter [EXHIBIT B] from the Claimants Solicitors stating they have requested the copy agreement, statements and default notices from the original creditor and they would forward them on to me upon receipt. This was never don’t and I’m still waiting for all the documents.

 

5: on x DATE x I received a call from mediation but this could not complete as I still haven’t received any of the requested documents from the claimant nor the claimants solicitors.

 

6. on x DATE x I received a witness statement from the claimant.

The claimant still has not provided a signed agreement or any original documents and instead provided an unsigned agreement and some screen captures from a computer.

 

7: Therefore I believe the claimant NEED A CLOSING STATEMENT

 

 

Statement of Truth

 

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

 

 

Signed: _________________________ _______

 

Dated:

 

Take a look at one I have drafted.......

 

[ATTACH=CONFIG]68881[/ATTACH]

 

 

Thanks again andy (i should have this as my sig...lol)

 

 

Ill see if i can modify it a bit and upload it.

 

I think ill need to remove all the parts about it being stayed and parts about the claim being two and half years but i think ill be able to work with it.

[AndyOrch]

Take a look at one I have drafted.......

Witness statement Lobster.pdf

[AndyOrch]

Obviously it will have to be edited to suit..its for another claim:wink:

[The_Debt_Man]

I meant its a good statement to modify....lol

 

What should i say about paragraph 9:

 

THE DEFENDANTS DEFENCE

 

9. A Defence was filed by the Defendant in which puts the Claimant to strict proof of the

amount claimed. The Defendant denies receiving the Default Notice and the Notice of

Assignment and states he made a request for a copy of the Agreement under Section 78

Consumer Credit Act 1974 and under CPR 31 but the Claimant has not complied with her

request.

 

10. The Defendant also denies entering into this Agreement with the Assignor and denies owing

any monies to the Claimant.

 

CLAIMANT'S RESPONSE TO THE DEFENCE

11. The Claimant confirms a number of letters were sent to the Defendant since assignment of

the debt confirming details of the account and encouraging the Defendant to contact the

Claimant with a view to discussing repayment of the account. Copies of the reconstituted

letters sent to the Defendant are exhibited hereto at ("GN5").

 

12. In the interests of communicating with the Defendant, and in compliance with the Data

Protection Act 1998, the Claimant used its internal tracing systems to verify whether the

Defendant was being contacted at the correct address. This confirmed that the Defendant is

an resident at from 26 April 2016.

 

 

All correspondence from the Claimant after this date was sent to the Defendant's current

address however the Defendant failed to contact the Claimant and or reply to

correspondence.

 

 

The previous addresses the Claimant has for the Defendant are:

 

in 9 they are already admitting that i've requested to see the agreement but then dismiss it and speak about how they traced me from the addresses i've lived at.

 

I just wanted to upload what i've been doing so far to make sure i'm going the right was as its taking me a lot longer than i thought it would...lol and i don't want it to be a waste of time

Witness statement.pdf

[AndyOrch]

Well your defence point 9 stands .....if your agreement is pre April 2007 then a recon cant be used to enforce the agreement...a recon can only used to reply to a section 77/78 request...as section 127 of the CCA1974 applies to pre 2007 agreements.The changes made by the CCA2006 which repealed parts of CCA1974 was not retrospective...only for agreements post April 2007.

 

Your point 10 is nonsense...lose it...they are the assignee and bought the debt so its irrelevant that you never entered into an agreement with them.

 

As for their points 11/12 well you know whether they sent them or not but both are irrelevant to the claim...they have either provided a valid Notice of Assignment or not.

 

I would include points 1/2/3 from the example I have provided...they are applicable to all claims made by a DCA.

[The_Debt_Man]

thanks andy

 

The paragraphs i posted (9. 10. 11. 12.) are from Lowell's witness statement not mine.

 

I'm trying to reply to all the points in Lowell's witness statement so it doesn't look like i'm trying to avoid anything.

 

Or can i just reply to some of them?

[AndyOrch]

Ah okay...I misunderstood ...just respond to the points that are relevant in refuting their statement and which strengthen your arguments.

[The_Debt_Man]

Well your defence point 9 stands .....if your agreement is pre April 2007 then a recon cant be used to enforce the agreement...a recon can only used to reply to a section 77/78 request...as section 127 of the CCA1974 applies to pre 2007 agreements.The changes made by the CCA2006 which repealed parts of CCA1974 was not retrospective...only for agreements post April 2007.

 

Your point 10 is nonsense...lose it...they are the assignee and bought the debt so its irrelevant that you never entered into an agreement with them.

 

As for their points 11/12 well you know whether they sent them or not but both are irrelevant to the claim...they have either provided a valid Notice of Assignment or not.

 

I would include points 1/2/3 from the example I have provided...they are applicable to all claims made by a DCA.

 

Sorry i've just re read your post.

 

According to their witness statement the agreement was entered into 20 December 2006.

 

What is a recon ?

 

Also im down to this part of lowells witness statement:

 

22. The Claimant denies that the Defendant's Defence carries any prospect of successfully

defending the claim. The Defendant has failed to explain or evidence:

bac... Who Why Why,she she if not shfailed ^^^ld^not storesponsible raise have to herrepay dispute for accruing the money withthe the she debt Claimant has had the before benefit theof Claimant ; issued

proceedings in this matter

 

23. The Defendant's position is particularly tenuous, as the evidence exhibited by the Claimant

nullifies her Defence.

 

24. The Claimant respectfully submits that the Defendant's Defence is without merit and

untenable.

 

25. The Defendant has failed to provide proof of the matters now relied upon in her Defence.

ORDER SOUGHT

 

26. The account was purchased in good faith, and as far as the Claimant is aware, the debt is due

and owing.

 

27. We confirm that the Claimant has the legal right to bring these proceedings against the

Defendant and that the full amount claimed in the Particulars of Claim remains due and

outstanding to the Claimant.

 

28. The Claimant avers that the Defence has no reasonable prospects of success and the

Claimant respectfully requests that the Defendant's Defence be struck out pursuant to CPR

3.4(2) (a) and judgment be awarded in favour of the Claimant plus costs. The costs of which

will be confirmed by the advocate at the hearing.

 

STATEMENT OF TRUTH

 

I believe the facts stated in this Witness Statement are true

 

Can you see anything i should be arguing here as i think it all been said enough throughout my witness statement ?

 

How's this ?

 

Also when posting off my witness statement do i need to include any of the documents from Lowell's witness statement that i've refereed to of will they just look at there statement to see what document i'm speaking about?

WS Witness statement.pdf

[AndyOrch]

A reconstituted version of the agreement...a recon of the original but not executed or signed by yourself.

 

Also im down to this part of lowells witness statement:

 

22. The Claimant denies that the Defendant's Defence carries any prospect of successfully

defending the claim. The Defendant has failed to explain or evidence:

bac... Who Why Why,she she if not shfailed ^^^ld^not storesponsible raise have to herrepay dispute for accruing the money withthe the she debt Claimant has had the before benefit theof Claimant ; issued

proceedings in this matter \

 

That is their opinion and is hear say by some paralegal thats why its important to include my point 1 from the example...that counters all hearsay

 

23. The Defendant's position is particularly tenuous, as the evidence exhibited by the Claimant

nullifies her Defence.

 

Again their opinion..irrelevant

 

24. The Claimant respectfully submits that the Defendant's Defence is without merit and

untenable.

 

Repeat of the above and sounds fancy litigious...so is their claim

 

25. The Defendant has failed to provide proof of the matters now relied upon in her Defence.

ORDER SOUGHT

 

And they have failed to provide the agreement on which their claim relies...a recon is no use on your agreement..must be the signed original

 

26. The account was purchased in good faith, and as far as the Claimant is aware, the debt is due

and owing.

 

Hope you have included my point 2 from the example..this deals with the above..they have bought the debt for probably 10p in the £1 of debt..so in effect you probably only owe half of what they claim as they have not suffered a financial loss.

27. We confirm that the Claimant has the legal right to bring these proceedings against the

Defendant and that the full amount claimed in the Particulars of Claim remains due and

outstanding to the Claimant.

 

See above

 

28. The Claimant avers that the Defence has no reasonable prospects of success and the

Claimant respectfully requests that the Defendant's Defence be struck out pursuant to CPR

3.4(2) (a) and judgment be awarded in favour of the Claimant plus costs. The costs of which

will be confirmed by the advocate at the hearing.

 

The defendant avers that the claimants claim has no reasonable prospects of success not being able to disclose the very agreement that their claim relies upon and therefore the defendant respectfully requests that claimants claim is struck out pursuant to CPR 3.4(6) and costs awarded to the defendant which will be confirmed by a bill of costs at the hearing

 

STATEMENT OF TRUTH

 

I believe the facts stated in this Witness Statement are true

 

Can you see anything i should be arguing here as i think it all been said enough throughout my witness statement ?

 

Regards

 

Andy

 

I see you have still not included my points 1/2/3/ from the example I have already provided. ?

[The_Debt_Man]

I see you have still not included my points 1/2/3/ from the example I have already provided. ?

 

I think i've included everything now.

 

Will i need to post off some of the documents from lowell's witness statement?

 

 

 

Thanks again Andy i couldn't have done all this without you

Witness statement XXX.pdf

[AndyOrch]

If you have referred to any of their documents or your own documents then normally you mark the paragraph ( see exhibit 1 a/1b/1c etc etc) and attach them to the WS.

 

Check your numbering its out and your point 8 should be your point 2 as the introduction and you have not used my point 3 from the example which should be your point 3.

[The_Debt_Man]

Ok ill check the numbering.

 

I used your point 3 my point 9 and your point 2 (3.It is my understanding that the claimant is an Assignee, a buyer of defunct disputed or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed ...10p to 15p in the £1 and which the original creditors have already wrote off as a capital loss and claimed against taxable income. Then issues claims to circumvent and claim the full amount of debt to maximise profit.)

 

as the argument for their point 26 like you suggested.

[AndyOrch]

Okay thats fine but keep my 2 as your number 2 as your opening statement...that sets the tone of the statement which implies.

 

Get your exhibits typed in to the correct paragraphs were you refer and your good to go...lets hope its not in vain or too late.

 

Andy

[The_Debt_Man]

I've move 2 up to 2

 

Lets hope they do accept it

 

What do you think now?

Witness statement XXXX.pdf

[AndyOrch]

I would lose.......

 

9. 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.

 

On your 11....add the red

 

11. Therefore, until such time the claimant can comply and disclose a true executed copy of the

agreement complete with terms and conditions from inception which they refer to within the

particulars of this claim and witness statement they are not entitled while the default continues, to

enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

 

Given that this alleged agreement is dated xx xxxxx 2006 section 127 .1 & 3 CCA1974 applies as the amendments of the CCA2006 were not retrospective to pre April 2007 agreements and therefore a reconstituted version of the agreement can not be used to enforce or request any relief

[The_Debt_Man]

How's this?

 

 

even if its not accepted at least i've been educated....lol

Witness statement XXXXx.pdf

[AndyOrch]

Yes thats good...not as easy as you think drafting a witness statement eh?

 

Dont forget to fill in the xxxx Given that this alleged agreement is dated xx xxxxx 2006

 

Well done now get some rest.....thats enough legalese for one day:wink:

[The_Debt_Man]

Thanks again andy you the one that should have the pat on the back

 

I've got to now fill in all the blanks and dig out all the dates to fill in.

 

I also keep noticing that i keep calling myself the claimant and lowell the defendant , so ill be going through everything to make sure there's no mistakes so i can then send it off first thing in the morning.

 

Cave you ever known of the court accepting a witness statement this late?

[AndyOrch]

Well I have seen claimants statements accepted so late so you will have to wing it.The fact is even if they kick off and try to stop it being submitted ..you can still take it to the hearing and refer to it and offer it verbally but Im sure the court will accept and understand you are litigant in person so see how it rides..

 

One very small suggestion I know you have used this point earlier in the statement but I would move it to your final conclusion as the very last paragraph of your statement.....

 

28. The Defendant avers that the claimants claim has no reasonable prospects of success not being able to disclose the very agreement that their claim relies upon and therefore the Defendant respectfully requests that the claimants claim is struck out pursuant to CPR 3.4(6) and costs awarded to the defendant which will be confirmed by a bill of costs at the hearing.

 

 

Statement of Truth

 

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

[The_Debt_Man]

Ok will do.

 

But the reason it marked 28 is because it was used in the argument to lowell's witness statement paragraph 28 .

I will also need to remove that argument as well.

[AndyOrch]

Yes I can see your logic .....but much more effective and powerful to use as a conclusion and is also a request to the court to action...so it gets lost in its current position

[The_Debt_Man]

ok ill remove 28 and add it to the bottom

[The_Debt_Man]

All posted off first thing this morning.

 

Let's just hope it gets accepted with it also being a weekend.

 

Thanks again Andy;)