Lowell Claimform - Old shop direct CAT Debt***Claim Dismissed***

[AndyOrch]

Example draft Witness Statement

 

In the XXXXXXX County Court

 

Claim No. ***********

 

BETWEEN:

Claimant

1st Credit Limited

 

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 dated xxxxxxxx and in response to the claimants claim dated xx xxxxx 2014 which was submitted through County Court Bulk Centre and remained stayed for two and half years as the claimant never made a response to the court or myself. I was never informed of the claimants application to lift the stay or given chance to oppose it.

 

In response to the claimants witness statement dated 29th June 2017 I will respond and refer to each paragraph as numbered including any exhibits.

 

1. The claimants witness statement opening paragraph 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 and also be in attendance at hearing to give evidence in support of the claimants witness statement.

 

2.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. The claimant then issues on mass claims to circumvent and claim the full amount of debt to maximise profit.

 

3. 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.

 

Background

4. Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and Halifax/Bank of Scotland. On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity from the claimant. The claimant denies any request in its witness statement that this happened namely that I requested:-

 

A copy of the original agreement

A copy of the terms and conditions as applicable at the time of the agreement

A copy of the Default Notice/ termination notice

A copy of the legal deed/notice of assignment showing your right to take action

 

The claimant failed to comply and their claim remained stayed as stated for over two and half years. I can only assume as this was due to the claimant not having any of the above mentioned documentation and issuing a claim in hope of an undefended default judgment.

 

5. Paragraph 4 is noted that the claimant states the agreement was issued on or about 1st Feb 2000 and clearly states that they enclose and rely on a reconstituted version of the agreement in support of its claim. Given that thy have had over two and half years to disclose this, the version they rely upon is deficient of the prescribed contents on which a reconstituted version can be relied upon in when providing a copy of an executed agreement in response to a request under section 78(1) of the CC Act 1974.A creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) as agreed to. This is to ensure that it is an honest and accurate copy. The copy the claimant wishes to rely upon does not even contain a name or address and is therefore irrelevant.

 

With regards to enforcement given the fact that the agreement they refer to is pre April 2007 and therefore HHJ Waksmans ruling in Carey and reconstituted versions are not applicable. Section 127.1 will apply as CCA2006 amendments are not retrospective. Section 65(1) CCA 1974 clearly states an improperly executed agreement can only be enforced by court order. S127(3) states the restrictions on enforcement. Therefore the agreement relied upon is improperly executed as it is not in the prescribed form.

 

6. Paragraphs 5 and 6 are noted but irrelevant given the fact the claimant can’t disclose the agreement and are therefore pointed out to pad and justify the statement.

 

7. Paragraph 7 refers to the default notice which the claimant is unable to disclose and hopes to rely on data provided which refers to a default registered to my credit files of 18th June 2002 and also confirms the account was inactive from April of the same year. The rest of the contents of paragraph 7 are irrelevant to the evidence and claim.

 

Therefore the claimant is put to strict proof to disclose a copy of the Default Notice it claim relies upon pursuant to section 87(1) CCA1974( a/b/e). 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:-(a)to terminate the agreement, or (b)to demand earlier payment of any sum, or(e)to enforce any security.

 

Paragraph 8 is noted but again irrelevant to the evidence apart from determining any argument of limitations.

 

Assignment

 

8. In response to the witness statement paragraph 9,it is denied I was ever served a Notice of Assignment pursuant to section 136 of the Law of Property Act 1925 or FCA,s CONC 6.5.2. Paragraphs 10 and 11 are irrelevant and only provide evidence that the Bank of Scotland acquired Halifax pursuant to HBO Group reorganisation. Which is immaterial to the evidence required in the claimants claim?

Therefore the Claimant is put to strict proof to evidence that any Notice of Assignment was ever served.

 

9. Paragraphs 12 is noted but not accepted. I do not recall any communication pre litigation and is averred that the claimant has not complied with any Pre Action Protocol and therefore the conduct of the claimant throughout this claim was not

in the spirit of the Civil Procedure Rules and should be considered with regards to costs.

 

10. Paragraphs 13 and 14 and 15 are already addressed at my point 4.

 

11. Paragraphs 16 and 17 the claimant confirms after two and half years (13/02/17) that they have now complied with requested documentation. The Claimant further states that I was put on notice of their intention to proceed with the claim.

Given to what they actually propose as valid disclosures there were no need for me to respond to their notice.I have already addressed the supposed documents in my points raised above and the Claimant is still in default of supplying a valid executed agreement and is therefore prevented from seeking any relief.

 

12. Paragraph 17 is covered above at 5..it is denied it is a true copy. The claimant confirms it’s a reconstituted version and even then it fails to be a true reconstituted version.

 

13. Paragraph 18 is assumption and hearsay and I contend that the claimants witness statement is a true reflection of how to miss lead a court with copy and paste reconstituted agreements, no evidence of breach of service of a Default Notice and circumvents the Credit Consumer Act 1974.The CCA was drafted to protect the consumer and not allow unscrupulous buyers of defunct debt avoid complying with the Act.

It is brought to the claimant’s attention that Rankin was a claimant not defendant so is irrelevant to the witness statement or this claim.

 

14. Paragraph 19.None of the issues raised within the claimants defence offers any tangible evidence or reasons as to why the claim was left stayed so long but attempts to hide this fact with very little reference to the reason. The evidence provided by way of exhibits is woefully deficient and invalid and not pursuant to the CCA1974.

 

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.

It is therefore respectfully requested that the court dismiss this claim and costs requested.

 

Statement of Truth

 

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

 

Signed: _________________________ _______

 

Dated: _________________________ ______

[dave466]

Thankyou for that.

With the debt being statute barred and that being her defence was that it was statute barred and no witness statement received fron lowell would she put something along these lines. (Obvioisly edited your draft)

In the XXXXXXX*county court

 

 

Claim No. ***********

 

BETWEEN:

Claimant

1st credit

*Limited

 

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 dated xxxxxxxx and in response to the claimants claim dated xx xxxxx 2014 which was submitted through County Court Bulk Centre.

 

 

1. 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. The claimant then issues on mass claims to circumvent and claim the full amount of debt to maximise profit.

 

2. 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.

 

Background

Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and*Shop Direct Group.

On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity from the claimant.

 

I requested:-

 

A copy of the original agreement

A copy of the terms and conditions as applicable at the time of the agreement

A copy of the Default Notice/ termination notice

A copy of the legal deed/notice of assignment showing your right to take action

 

The claimant failed to comply with my request.

I can only assume as this was due to the claimant not having any of the above mentioned documentation and issuing a claim in hope of an undefended default judgment.

 

 

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.

It is therefore respectfully requested that the court dismiss this claim and costs requested.

 

Statement of Truth

 

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

 

Signed: _________________________ _______

 

Dated: _________________________ ______

[AndyOrch]

It should contain a little legislation with regards to Statue of Limitations...given your defence...will tweak it later

[dave466]

Thank you Andy.

[dave466]

Thank you Andy.

 

Andy is ok to email you please.

I have just got home and she has received a witness statement from Lowell.

We cant/don't know how to edit personal details that's all.

 

Many thanks.

[dx100uk]

have you not read the upload

[dave466]

have you not read the upload

 

We don't have a printer/scanner or pc just our phones to take photos and I don't want to use a marker on it incase we may need it that's all.

 

We don't have a printer/scanner or pc just our phones to take photos and I don't want to use a marker on it incase we may need it that's all.

 

Apologies didn't see the mobile app bit. Sorry

[dx100uk]

See how you get on

[dx100uk]

if you find it problematic

we have a secure email you can send photos too and i'll do it for you

 

 

dx

[AndyOrch]

I have got them all Dave/DX...dealing with.

 

Andy

[dx100uk]

:thumb:

[dave466]

Thankyou

[AndyOrch]

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 dated xxxxxxxx and in response to the claimants claim dated xx xxxxx 2014 which was submitted through County Court Bulk Centre.

 

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.

 

2. 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. The claimant then issues on mass claims to circumvent and claim the full amount of debt to maximise profit.

 

2. 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.

 

3.Background

 

Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and*Shop Direct Group.On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity from the claimant.

 

I requested:-

 

A copy of the original agreement

A copy of the terms and conditions as applicable at the time of the agreement

A copy of the Default Notice/ termination notice

A copy of the legal deed/notice of assignment showing the claimants legal right to take action

 

4.Disclosures

 

The claimant has since complied and disclosed various documents however unable to comply with disclosing a valid copy of the executed agreement on which their claim relies upon.Given that this agreement was allegedly entered into on the 22nd November 2005 and predates the amendments of the CCA2006 which are not retrospective. With regards to enforcement given the fact that the claimant cannot disclose an agreement and simply relies on a set of reconstituted terms and conditions ,HHJ Waksmans ruling in Carey and reconstituted versions are not applicable. Section 127.1 will apply and Section 65(1) CCA 1974 clearly states an improperly executed agreement can only be enforced by court order. S127(3) states the restrictions on enforcement. Therefore the agreement relied upon is improperly executed as it is not in the prescribed form.

 

The claimant confirms within its statement at paragraph 3 there is no physically signed hard copy of the executed agreement.

 

5.Statute of Limitations

 

Notwithstanding the above on receipt of this claim my defence states that the claimants claim is statute barred.The last payment to the account was dated 11th November 2010 and the claim was issued on 22nd February 2017 and therefore 6 years had passed as at November 2016.

 

The Default Noticed was issued 9th May 2011 or 6th June 2011 subject to which the claimant wishes to rely upon from the screen grab and therefore served 5 or 6 months after the initial breach thus the cause of action delayed by the same period and the Limitations period prolonged to 6 years and 5/6 months which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run.

 

The cause of action is when a debtor breaches the terms of conditions by missing payment on the contractual date due not from when the creditor decides to issue a Default Notice some 5/6/months after the breach.Therefore the earliest the creditor could have cause to take action would and should have been 11th January 2011.

 

The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

 

6.Conclusion

 

Therefore the claimant cannot 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 nor can it defeat section 5 of the Statue of Limitations Act 1980.

 

It is therefore respectfully requested that the court dismiss this claim and costs requested.

 

Statement of Truth

 

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

 

Signed: _________________________ _______

 

Dated: _________________________ ______

[dave466]

I have edited the dates for the defence date and claim date etc. Is this now ready to post 1st class recorded to both the local court and also Lowell?

 

Thank you.

[AndyOrch]

Yes if your satisfied with it

[dave466]

Sorry for the delay guys. All sent 1st class recorded to Lowell and local court.

Just realised though my wife had signed the witness statement that we sent to lowell should she have done or not done this. Although it is signed on her married name not her maiden name which the account is under.

[AndyOrch]

Hope you altered the claimants name to lowell ?

[dave466]

Yes mate that was all edited correctly aswell as adding her full address.

[AndyOrch]

Just testing .....

[dave466]

Just testing .....

 

Ha ha thanks Andy.

Will keep yous all updated.

[dave466]

Looks like Lowell really have it in for my wife.

Another claim form for old loan.

Should I make new post with all details?

[dx100uk]

yes please and do that link again

[dave466]

yes please and do that link again

http://www.consumeractiongroup.co.uk/forum/showthread.php?479932-Claim-form.-Old-Provident-Loan&p=5048667#post5048667

[dave466]

Just testing .....

 

Today she has received a notice of hearing which will take place on 7th September 2017 at 2pm.

It says tgat the claimant must pay 335 14 days before.

It also states that the case is listed in the back to back list. (Tandem sitting)

[dx100uk]

So witness statement time?