Lowell/bw claim form - old SimplyBe JDW CAT 'debt'***Claim Discontinued***

[dx100uk]

don't forget also

this debt is most probably statute barred.

 

 

dx

[AndyOrch]

don't forget also

this debt is most probably statute barred.

 

 

dx

 

Excellent point DX as the last payment was 14th Jan 2011 and the claim was issued 8th March 2017 = 6 years and 2 months

[blacksofa]

Yes, was going to ask about that.

They have actually confirmed that the last payment was 14th Feb 2011.

How do I incorporate that at this stage though?

I thought that could not be mixed with the defence I originally submitted as it was borderline statute barred for the dates.

 

Feel like I am going round in ever decreasing circles here.

I consider myself reasonably intelligent

- how on earth do people who really struggle with paperwork etc cope with all this?

I'm beginning to panic because of the time frame too.

 

I think I need to put my original WS on the back burner and start again, following Andy's advice to work through their WS a bit at a time.

I'll make a list of the points I think I need, without any legal-speak to start with, and then go from there.

[AndyOrch]

Your witness statement is different to an initial defence..as the claim has progressed you now realise it may possibly be statute barred and therefore you can introduce that into your statement along with your other arguments.

[blacksofa]

OK, I have a start - it needs tidying up and I need to check the numbering, plus some other things I have highlighted that I still need to look up. Nowhere near finished yet, but would appreciate any input to let me know if I am at least heading in the right direction

 

WITNESS STATEMENT OF XXXXXXX

 

I xxxx, being the Defendant in this case will state as follows:

 

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

 

1. The claimant’s 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. The claimant has confirmed that their client will not be in attendance at the hearing, however they will be represented by an advocate. Notice has been given pursuant to CPR 27.9

 

2. I understand that the claimant is an Assignee, a buyer of defunct or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.

 

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. This claim is for a Home Shopping agreement regulated by the Consumer Credit Act 1974 between the Defendant and JD Williams & Company Ltd, Whilst I have had dealings with the original creditors in the past, I do not recognise any of the account details as I no longer have records of them. (Can this stay in in this format now they have provided a 'statement' of sorts, or do I need to make some changes?)

 

4. I am/was unaware of any notice of assignment, nor have I been issued with a default notice, pursuant to section 87 (1) CCA 1974. (again - do I need to change this now they have included one in their WS?)

 

5. I therefore cannot make any admittance to any alleged debt.

 

6. On DATE 2017, in response to the particulars of claim served upon me, for more clarity on the matter I made a formal written request under section 78.1 of the Consumer Credit Act, and paid the £1 fee via postal order for a copy of the credit agreement and statement of account. EXHIBIT A (CCA REQUEST) AND EXHIBIT B (RECEIPT FOR POSTAL ORDER)

 

7. This letter was sent recorded delivery. EXHIBIT C (PROOF OF RECORDED DELIVERY POSTAGE)

 

 

8. On DATE 2017, I made a CPR 31.14 formal written request to the claimant’s solicitor, sent by recorded delivery, which was received and signed for by xxxx on xxxx at xxxx. EXHIBIT D (CPR REQUEST) AND EXHIBIT E (COPY OF SIGNATURE)

I enquired for information including:

 

1 Agreement/contract

2 Notice of assignment

3.The Default notice

4. Statement of Account

 

8.1 The claimant’s solicitors responded and acknowledged my request for documents and referred my request to Lowell Portfolio EXHIBIT F (COPY OF RESPONSE). Despite the assurance to put the account on hold and to respond as soon as possible – probably within 30 days, the court proceedings continued, and no related documentation clarifying or proving the alleged debt, and therefore defaulted payments, or service of default notice has been received from the claimant’s solicitor as a result of this communication.

 

8.2. The claimant’s solicitor provides exhibit VAT1 within their witness statement and disclosure, at points 9 and 10. This exhibit is a ‘screen shot’ of Lowell Portfolio’s Management System. This relies only on hearsay, as quoted in their witness statement: ‘information contained in this exhibit stems from the information provided to the Claimant by the Originating Creditor'. It therefore has no legal relevance in proving this alleged debt.

 

8.3. The claimant’s solicitor has produced only a reconstituted version of the agreement, with the personal details quite obviously entered by typing them in. Although this is legally acceptable under xxxxxxCHECK thisXXXX and insert, it does not provide proof of a signed agreement regarding this account, and must throw the veracity of their claim into doubt.

 

8.4. The claimant’s solicitor has included disclosure of a type-written letter assigning the debt to Lowell’s, and a letter of introduction from Lowell’s. Neither appear to be copies of a letter n headed notepaper. NOT SURE HOW TO COVER THIS

 

9. Despite making reference to my request for a copy of the previously mentioned Default Notice, in their witness statement at 22.3, the claimant’s solicitor has failed to provide proof of a default notice, or service of the same, and is therefore unable to XXXXXXXX got to look this up. ,,,, Put to strict proof…..?

 

10. Notwithstanding the above the claimant remains in breach of the 12 day response period under Section 78.6, therefore the claimant is unable to request any relief until such time they can comply. (Presume this still applies because of the quoted 12 day period)

 

11. It is therefore averred that the claimant has been unable to produce any documentation to prove this alleged debt and I therefore respectfully request that the court dismiss this claim and award costs it feel fit in defending this matter.

 

Statute barred - where and how do I introduce this?

 

I don't really feel this is enough - but I need a break fo another coffee anyway, so I'm open to any comments.

 

Thanks

Blacksofa

[blacksofa]

Going back over this and afraid I have some more questions/things I have noticed...

 

I have seen on some threads that people take copies of the relevant Acts with them

- do these need to be art of the Witness Statements as exhibits,

and presumably I don't have to take the whole Act,

just the parts relevan to my defence/WS.

 

 

Where is the best place to track these down to print out?

 

Their copy of the letter of Introduction from Lowell's is obviously a copy of a standard letter,

- they haven't even inserted their contact telephone number in the gap provided for it.

 

Their witness statement states that my defence is 'purely a request for information' and that I have 'provided insufficient detail or any tangible evidence in support'

 

 

I thought they are the ones who have to provide tangible evidence, not me,

and also they legally should provide the information I have requested, including the default notice.

 

 

Feel I need to include a paragraph drawing attention to this, or amend one of my existing paragraphs.

 

 

The relevant paragraphs in their WS are 23,24 and 25, where they also state that my defence 'raises no triable issues' and the 'lack of any substance or supporting evidence to the Defence limits the Claimant to the response they are able to file'.

Well poor them!

 

 

How on earth are you supposed to provide proof of something you didn't get (Default notice).

What a load of BS.

[AndyOrch]

Not easy is it drafting a witness statement..and takes many hours.

 

If you rely or refer to any legislation or case law you must attach as an exhibit...CCA1974 is available online and you can print the relevant parts.

 

http://www.legislation.gov.uk/ukpga/1974/39/contents

 

You are not required to submit any tangible evidence with a defence..that comes now at this stage ...Witness statement and Standard Disclosure.

So your answer is the same as theirs at points 26 to 29 of their WS...the same reason why they didnt have to submit any evidence with their particulars. ....

 

The relevant CPR for submitting a defence is as follows....

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part15

 

See 15.2

[blacksofa]

OK Andy I will hunt them down (I refer of course to the relevant Acts of Parliament and not the DCA/Solicitors/their Advocate!)

 

Have you any advice on my previous post (not the minor ranting one. but the beginnings of my WS) please? I am sorry to push, but I am so aware that the clock is ticking on this, and will have limited time this evening and tomorrow to get it all done and dusted.

 

Also, do I need to include my Skeleton Argument with my WS as an exhibit - I have seen some threads that say yes, and some say just to take three copies on the day.

 

My head is in a whirl. I can't see me ever getting this revision of my WS to a stage I feel happy with.

[AndyOrch]

Just plod on take your time...get it all in there and I will refine and tweak it.

 

I find it easy to print a copy of the claimants WS and side by side I go through and respond to each point referring to their numbering and exhibits and adding further argument in between.

[blacksofa]

Yes thank you Andy, I started with a copy of their WS and began to do that, but it is so repetitive that I sort of faded out.

 

 

I am also unsure of what I can legally say about them:

like where I suggested their recon agreement with my details typed in may be legally acceptable but surely cast some doubt on their veracity.

 

 

Maybe I'm not allowed to say that without slandering them?

I have to go out for a couple of hours to take my OH to work,

I will plod on with some more when I get back, and hopefully it will be tweakable.

 

I may have asked this already

- but if I refer to something they have said in their WS,

do I need a print out of that part of their WS as an exhibit,

or does the judge just refer back to their WS?

[AndyOrch]

Thats the skill you need to refer to their repetitives in one paragraph....

 

" The claimants points raised at xyz are rather repetitive to which I do not intend to reply to and to which is mostly hearsay without any tangible evidence to support its statements."

[blacksofa]

OK, I have a draft - probably as far as my brain will go tonight. There are still some bits that I cannot find or work out how to phrase things, or even if they should be included at all. I have asked some questions as I go. I haven't included anything yet re statute barred - not sure where it stands in the running order, or what to refer to. I need to sort out exhibits too once I have this finalised

 

WITNESS STATEMENT OF XXXXX

 

I XXXXX, being the Defendant in this case will state as follows:

 

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

 

1.The claimant’s witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraphs. 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. The claimant has confirmed that their client will not be in attendance at the hearing, however they will be represented by an advocate. Notice has been given pursuant to CPR 27.9

 

*Exhibit to sort out: CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.*

 

2. I understand that the claimant is an Assignee, a buyer of defunct or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.

 

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.

 

*Exhibit to sort out: Copies of relevant sections of CCA*

 

3. This claim is for a Home Shopping agreement regulated by the Consumer Credit Act 1974 between the Defendant and JD Williams & Company Ltd. Whilst I have had dealings with the original creditors in the past, I do not recognise any of the account details as I no longer have records of them. The particulars of claim fail to state when the alleged agreement was entered into but the Claimant’s Witness Statement states it was 2010, 7 years ago.

WONDERED IF THE STATUTE BARRED BIT WOULD BE GOOD IN HERE?

 

4. In their Witness Statement, the Claimant refers to exhibits 1-8 of XXXX, a screen shot of the N Brown Group website, listing their brand names, and a comprehensive list of many other companies, including JD Williams, and their associated brand names. It is accepted that the screen shot of the website confirms various trading names used by JD Williams/N Brown et al. It fails to mention ‘Candid Collections Trading As Simply Be’ which is the name shown on the reconstituted Consumer Credit Act agreement included by the claimant as their Exhibit CHECK NUMBER HERE The full list of other companies however does include Candid Collections Ltd Trading as Simply Be as another trading name of JD Williams. Although the remainder of the list and the website itself seems rather superfluous it does appear to prove the connections between the various names used for trading by the original creditor.

 

5. The claimant’s Witness statement makes regular reference to a Credit Agreement between the originating creditor and myself, although they are only able to produce a reconstituted agreement with reference to this. As stated above I have had dealings with the originating creditor in the past, but am unable to recognise the account details as I no longer have records of them.

 

6. Therefore, on DATE 2017, in response to the particulars of claim served upon me, for more clarity on the matter I made a formal written request under section 78.1 of the Consumer Credit Act, and paid the £1 fee via postal order for a copy of the credit agreement and statement of account. EXHIBIT A (CCA REQUEST) AND EXHIBIT B (RECEIPT FOR POSTAL ORDER)

 

*Exhibit to sort – CCA*

 

7. This letter was sent recorded delivery. EXHIBIT C (PROOF OF RECORDED DELIVERY POSTAGE)

 

 

8. On DATE 2017, I made a CPR 31.14 formal written request to the claimant’s solicitor, sent by recorded delivery, which was received and signed for by XXXX on xxxx at xxxx. The claimant’s solicitors responded and acknowledged my request for documents and referred my request to Lowell Portfolio EXHIBIT F (COPY OF RESPONSE). EXHIBIT D (CPR REQUEST) AND EXHIBIT E (COPY OF SIGNATURE).

 

I enquired for information including:

1 Agreement/contract

2 Notice of assignment

3.The Default notice

4. Statement of Account

 

Despite the rather mis-leading assurance in Exhibit F to put the account on hold, and to respond as soon as possible, probably within 30 days, the court proceedings continued, and no related documentation clarifying or proving the alleged debt, and therefore defaulted payments, or service of default notice has been received from the claimant’s solicitor as a result of this formal request and their written response.

*Exhibit to sort: CPR *

 

9. The claimant’s solicitor provides exhibit 9 of XXXX within their witness statement and disclosure, at their points 9 and 10. This exhibit is a ‘screen shot’ of Lowell Portfolio’s Management System. This relies only on hearsay, as clearly stated in their witness statement: ‘The provenance of information contained in this exhibit stems from the information provided to the Claimant by the Originating Creditor'. It therefore has no legal relevance and can not be relied upon in proving this alleged debt.

 

10. The Claimant makes repeated references in their Witness Statement to the alleged agreement, but is however able only to provide a reconstituted version of an Agreement, with personal details typed in, and reconstituted Terms and Conditions. Although this is legally acceptable under xxxxxxCHECK ACT and Section and insert, it does not provide clear proof of an agreement regarding this account, the existence of which the claimant relies upon heavily in their statement, and must therefore cast doubt on the veracity of their claim. TOO MUCH?

11. DO I NEED TO REFER TO THE STATEMENT OF ACCOUNT AND IF SO, HOW DO I DEAL WITH IT, AND DOES IT CHANGE POINT 20 BELOW….

 

12. The claimant’s solicitor has included disclosure of a letter assigning the debt to Lowell’s, and a letter of introduction from Lowell’s. Neither appear to be copies of a letter on headed notepaper. NOT SURE HOW TO COVER THIS

 

13. Despite referring to the issue of a Default Notice in their original Particulars of Claim and referring to my request for a copy of a Default Notice, in their witness statement at 22.3, the claimant’s solicitor has failed to provide proof of a default notice, or service of the same. 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. (I thought I had seen some other wording for this, but have trawled through threads and cannot find it. Also is it correct Section 87 (1) and section 88?)

 

14. Notwithstanding the above the claimant remains in breach of the 12 day response period under Section 78.6, therefore the claimant is unable to request any relief until such time they can comply. (Presume this still applies because of the quoted 12 day period and they have not produced a default notice, or do I need to delete it?) If I leave it in, do I need to move it?

 

15. The claimant makes various references to the lack of tangible evidence in my defence, that it raises no triable issues, and states that the lack of substance and supporting evidence in my defence limits the Claimant’s response. My defence was submitted according to the conditions for filing a defence on MCOL, and in the lack of any tangible supporting documentation from the Claimant, especially including, but not limited to, the ongoing lack of the production of and disclosure of any Default Notice. My defence was clear and concise and the Claimant is put to strict proof to the contrary. (Not sure about this bit and if it is OK – pinched a lot of it from their points 23 – 29. It seems a bit ‘tit-for-tat’)

 

16. The Claimant states in their Witness Statement point 30 that as a debt purchaser they are reliant on obtaining information from the Originating Creditor, and they can encounter problems when trying to obtain documentation which has been archived. Whilst this may be the case, it does not alter the facts of regarding their legal obligations and duties. This therefore seems an irrelevant point to make.

 

17. The claimant and their solicitors have not complied with any of my requests and have not sent any related documentation clarifying or proving the alleged debt, and therefore defaulted payments, or service of default notice.

 

18. The claimant has not been able to clarify by way of an itemised list how the alleged balance was derived and the legality of the charges applied to the said balance. The claimant has not in any way proven the existence of the alleged debt. (Does the statement they have sent in their WS affect this – NB the big blocked out bit on the scanned version of this was originally items purchased. I deleted them as they seem to be ways of identifying the account)

19. The remainder of the Claimant’s Witness Statement - raised at points 32 – 43, repeats earlier parts of their statement, which I therefore do not intend to individually reply to, and which is mostly hearsay without any tangible evidence to support the statements.

 

20. I therefore cannot make any admittance to any alleged debt. The claimant unable to produce a copy of the executed signed agreement or Default Notice and I therefore respectfully request that the court dismiss this claim and award costs it feels fit in defending this matter.

 

STATEMENT OF TRUTH

 

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

 

Signed

 

 

Dated this day……………………..2017

 

(THIS EXHIBIT LIST WILL CHANGE)

EXHIBIT A (CCA REQUEST)

EXHIBIT B (RECEIPT FOR POSTAL ORDER)

EXHIBIT C (PROOF OF RECORDED DELIVERY POSTAGE)

EXHIBIT D (CPR REQUEST)

EXHIBIT E (COPY OF SIGNATURE)

EXHIBIT F (COPY OF RESPONSE)

 

Input or tweaking as always, gratefuly received,

Blacksofa

[blacksofa]

Have spent a couple of hours this morning collating and labelling my exhibits for the various Acts. I have found a defence for stature barred, but not a Witness Statement, (which makes sense I suppose as less likely to get to this stage). I'm a bit stuck now about the changes I need to make to the WS. Really hoped to be able to post today, but looks like it is more liekly to be tomorrow, which is only one day before the deadline. Will soend some more time reading around.

[AndyOrch]

6. Notwithstanding the above any alleged balance outstanding would now be statute barred given that the claimant confirms in its witness statement the last payment received was dated xxxxxxx which equates to 6 years and 2 months .. 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 and 2 months have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

 

PS I have amended your point 20.

[blacksofa]

Thanks Andy, that is very similar to the stuff I had found on SB.

 

Sorry to keep asking, but what about the other queries I have put in red? Ref how to approach the statement of account and the copies of the NOA and introduction letter from Lowells, and are my points 14 and 15 OK? Also point 18.

 

My first WS had this point in it

4. I therefore cannot make any admittance to any alleged debt. Should I include it in the new one or am I covered by other points made.

 

And, if I quote somethng direct from their WS, do I need to include anther copy of that in my WS, or will judge simply refer to their WS.

 

Apologies again for all the questions - just really keen to get this wrapped up and ready to go.

 

Many thanks

Blacksofa

[AndyOrch]

If you refer to a point in the claimant WS...simply refer to the point number no need to attach a further copy.

 

If you could list your queries again (red points) in new post and I will answer them

[blacksofa]

10. The Claimant makes repeated references in their Witness Statement to the alleged agreement, but is however able only to provide a reconstituted version of an Agreement, with personal details typed in, and reconstituted Terms and Conditions. Although this is legally acceptable under xxxxxxCHECK ACT and Section and insert, it does not provide clear proof of an agreement regarding this account, the existence of which the claimant relies upon heavily in their statement, and must therefore cast doubt on the veracity of their claim. TOO MUCH? Should I just stop at 'statement'

 

11. DO I NEED TO REFER TO THE STATEMENT OF ACCOUNT AND IF SO, HOW DO I DEAL WITH IT

 

12. The claimant’s solicitor has included disclosure of a letter assigning the debt to Lowell’s, and a letter of introduction from Lowell’s. Neither appear to be copies of a letter on headed notepaper. NOT SURE HOW TO COVER THIS

 

18. The claimant has not been able to clarify by way of an itemised list how the alleged balance was derived and the legality of the charges applied to the said balance. The claimant has not in any way proven the existence of the alleged debt. (Does the statement list they have sent in their WS affect this – NB the big blocked out bit on the scanned version of this was originally items purchased. I deleted them as they seem to be ways of identifying the account)

 

As this is after 2007, do I still refer to them being unable to produce the executed signed agreement in point 20?

 

The last payment was 14th Feb 2011, Claim was issued 8/3/2017. On the statement list they have sent the next statement was sent out on 21st Feb, and no payment was made after that. Do I need to mention that or is the last payment date sufficient?

 

Also just remembered this ...My first WS had this point in it

4. I therefore cannot make any admittance to any alleged debt. Should I include it in the new one or am I covered by other points made.

 

Thanks very much Andy, I really do appreciate all your help, Hopefully, next time I will be more self sufficient - actually, hopefully there won't be a next time!

Edited September 13, 2017 by blacksofa
added another question!

[AndyOrch]

10. The Claimant makes repeated references in their Witness Statement to the alleged agreement, but is however able only to provide a reconstituted version of an Agreement, with personal details typed in, and reconstituted Terms and Conditions. It does not provide clear proof of an agreement regarding this account, the existence of which the claimant relies upon heavily in their statement, and must therefore cast doubt on the veracity of their claim. It may be acceptable for the purposes of compliance with S78, then why should the very same legally valid document not also be fully acceptable in order to satisfy Sec 61 in the same respect where there is absence of an original signed agreement, as it is obvious or highly probable that the original agreement would be impossible to produce at this late stage.Therefore it is averred that the reconstituted agreement fails to comply with sec 61 of the CCA1974 and is therefore unenforceable.

 

Ignore 11.

 

12. The claimant’s solicitor has disclosed a letter purporting to be a Notice of Assignment assigning the debt to Lowell’s, and a letter of introduction from Lowell’s. Neither appear to be copies of a letter on headed notepaper and therefore obviously reconstituted versions and not proof of a valid notice pursuant to Section 136(1) of the Law of Property Act 1925.

 

http://www.legislation.gov.uk/ukpga/Geo5/15-16/20/section/136

 

18. The claimant has not been able to clarify by way of an itemised list how the alleged balance was derived and the legality of the charges applied to the said balance. It relies upon its own internal systems screen shot and not from the original documentation of the original creditor.The claimant is put to strict proof to disclose the original statements of account and quantify the alleged balance claimed.

 

" As this is after 2007, do I still refer to them being unable to produce the executed signed agreement in point 20? " I have covered that in point 10 by introducing sec 61.

 

"The last payment was 14th Feb 2011, Claim was issued 8/3/2017. On the statement list they have sent the next statement was sent out on 21st Feb, and no payment was made after that. Do I need to mention that or is the last payment date sufficient? "

 

Irrelevant really apart from you mentioning it in the Statute Barred paragraph

 

"Also just remembered this ...My first WS had this point in it

4. I therefore cannot make any admittance to any alleged debt. Should I include it in the new one or am I covered by other points made."

 

Edited into your point 20 above

[blacksofa]

Brilliant Andy thank you. Am making the changes now, and finishing off my list of exhibits.

[AndyOrch]

[blacksofa]

Getting there Andy. I forgt to ask if this point was OK. I lifted most of it from their witness statement, not sure about the 'put to strict proof part'

 

15. The claimant makes various references to the lack of tangible evidence in my defence, that it raises no triable issues, and states that the lack of substance and supporting evidence in my defence limits the Claimant’s response. My defence was submitted according to the conditions for filing a defence on MCOL, and in the lack of any tangible supporting documentation from the Claimant, especially including, but not limited to, the ongoing lack of the production of and disclosure of any Default Notice. My defence was clear and concise and the Claimant is put to strict proof to the contrary.

[AndyOrch]

Yes thats a must

[blacksofa]

Hopefully this is it now Andy....

 

 

IN THE xxxxxx County Court

 

 

Claim No: xxxxxx

BETWEEN

Claimant

Lowell Portfolio 1 Ltd

 

AND

DEFENDANT

xxxx

of

xxxxxxx

 

WITNESS STATEMENT OF xxxxxxxx

 

I xxxxxxx, being the Defendant in this case will state as follows:

 

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

 

1.The claimant’s witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraphs. 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) (EXHIBIT A) and Section 2 (1) (A) of the Civil Evidence Act. (EXHIBIT B) The claimant has confirmed that their client will not be in attendance at the hearing, however they will be represented by an advocate. Notice has been given pursuant to CPR 27.9

 

2. I understand that the claimant is an Assignee, a buyer of defunct or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.

 

As an assignee or creditor as defined in section 189 of the CCA (EXHIBIT C) 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. This claim is for a Home Shopping agreement regulated by the Consumer Credit Act 1974 between the Defendant and JD Williams & Company Ltd. Whilst I have had dealings with the original creditors in the past, I do not recognise any of the account details as I no longer have records of them. The particulars of claim fail to state when the alleged agreement was entered into but the Claimant’s Witness Statement states it was 2010, 7 years ago.

 

4. In their Witness Statement, the Claimant refers to exhibits 1-8 of VAT1, a screen shot of the N Brown Group website, listing their brand names, and a comprehensive list of many other companies, including JD Williams, and their associated brand names. It is accepted that the screen shot of the website confirms various trading names used by JD Williams/N Brown et al. It fails to mention ‘Candid Collections Trading As Simply Be’ which is the name shown on the reconstituted Consumer Credit Act agreement included by the claimant as their Exhibit 10 of VAT1.The full list of other companies however does include Candid Collections Ltd Trading as Simply Be as another trading name of JD Williams. Although the remainder of the list and the website itself seems rather superfluous it does appear to prove the connections between the various names used for trading by the original creditor.

 

5. The claimant’s Witness statement makes regular reference to a Credit Agreement between the originating creditor and myself, although they are only able to produce a reconstituted agreement with reference to this. As stated above I have had dealings with the originating creditor in the past, but am unable to recognise the account details as I no longer have records of them.

 

6. Notwithstanding the above any alleged balance outstanding would now be statute barred given that the claimant confirms in its witness statement the last payment received was dated DATE 2011, which equates to 6 years and 1 month … pursuant to the provisions of section 5 of the Limitation Act 1980. (EXHIBIT D) If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years and 1 months have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

 

7. On DATE 2017, in response to the particulars of claim served upon me, for more clarity on the matter I made a formal written request under section 78.1 of the Consumer Credit Act, and paid the £1 fee via postal order for a copy of the credit agreement and statement of account. (EXHIBIT E: COPY OF CCA REQUEST LETTER, (EXHIBIT F: CONSUMER CREDIT ACT SECTION 78, EXHIBIT G: RECEIPT FOR POSTAL ORDER)

 

 

8. This letter was sent recorded delivery. EXHIBIT H (PROOF OF RECORDED DELIVERY POSTAGE)

 

9. On DATE 2017, I made a CPR 31.14 formal written request to the claimant’s solicitor, sent by recorded delivery, which was received and signed for by XXXX on DATE at TIME. The claimant’s solicitors responded and acknowledged my request for documents and referred my request to Lowell Portfolio

 

(EXHIBIT I: CPR 31.14, EXHIBIT J: COPY OF CPR REQUEST LETTER (two pages), EXHIBIT K: COPY OF RECORDED DELIVERY SIGNATURE) EXHIBIT L: CLAIMANT’S SOLICITOR REPLY.

 

I enquired for information including:

1 Agreement/contract

2 Notice of assignment

3.The Default notice

4. Statement of Account

Despite the rather mis-leading assurance in Exhibit L to put the account on hold, and to respond as soon within approximately 30 days, the court proceedings continued, and no related documentation clarifying or proving the alleged debt, and therefore defaulted payments, or service of default notice has been received from the claimant’s solicitor as a result of this formal request and their written response.

 

10. The claimant’s solicitor provides exhibit 9 of VAT1 within their witness statement and disclosure, at their points 9 and 10. This exhibit is a ‘screen shot’ of Lowell Portfolio’s Management Services System. This relies only on hearsay, as clearly stated in their witness statement: ‘The provenance of information contained in this exhibit stems from the information provided to the Claimant by the Originating Creditor'. It therefore has no legal relevance and can not be relied upon in proving this alleged debt.

 

11. The Claimant makes repeated references in their Witness Statement to the alleged agreement, but is however able only to provide a reconstituted version of an Agreement, with personal details typed in, and reconstituted Terms and Conditions. It does not provide clear proof of an agreement regarding this account, the existence of which the claimant relies upon heavily in their statement, and must therefore cast doubt on the veracity of their claim. It may be acceptable for the purposes of compliance with S78, (see EXHIBIT F) then why should the very same legally valid document not also be fully acceptable in order to satisfy Sec 61 in the same respect where there is absence of an original signed agreement, as it is obvious or highly probable that the original agreement would be impossible to produce at this late stage. Therefore it is averred that the reconstituted agreement fails to comply with sec 61 of the CCA1974 (EXHIBIT M) and is therefore unenforceable.

 

12. The claimant’s solicitor has disclosed a letter purporting to be a Notice of Assignment assigning the debt to Lowell’s, and a letter of introduction from Lowell’s. Neither appear to be copies of a letter on headed notepaper and therefore obviously reconstituted versions and not proof of a valid notice pursuant to Section 136(1) of the Law of Property Act 1925. (EXHIBIT N)

 

13. Despite referring to the issue of a Default Notice in their original Particulars of Claim and referring to my request for a copy of a Default Notice, in their witness statement at 22.3, the claimant’s solicitor has failed to provide proof of a default notice, or service of the same. 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. (EXHIBIT O CCA SECTIONS 87 (1), 88)

 

14. Notwithstanding the above the claimant remains in breach of the 12 day response period under Section 78.6, therefore the claimant is unable to request any relief until such time they can comply. (EXHIBIT P)

 

15. The claimant makes various references to the lack of tangible evidence in my defence, that it raises no triable issues, and states that the lack of substance and supporting evidence in my defence limits the Claimant’s response. My defence was submitted according to the conditions for filing a defence on MCOL, and in the lack of any tangible supporting documentation from the Claimant, especially including, but not limited to, the ongoing lack of the production of and disclosure of any Default Notice. My defence was clear and concise and the Claimant is put to strict proof to the contrary.

 

16. The Claimant states in their Witness Statement point 30 that as a debt purchaser

they are reliant on obtaining information from the Originating Creditor, and they can encounter problems when trying to obtain documentation which has been archived. Whilst this may be the case, it does not alter the facts regarding their legal obligations and duties. This therefore seems an irrelevant point to make.

 

17. The claimant and their solicitors have not complied with any of my requests and have not sent any related documentation clarifying or proving the alleged debt, and therefore defaulted payments, or service of default notice.

 

18. The claimant has not been able to clarify by way of an itemised list how the alleged balance was derived and the legality of the charges applied to the said balance. It relies upon its own internal systems screen shot and not from the original documentation of the original creditor. The claimant is put to strict proof to disclose the original statements of account and quantify the alleged balance claimed.

 

19. The remainder of the Claimant’s Witness Statement - raised at points 32 – 43, repeats earlier parts of their statement, which I therefore do not intend to individually reply to, and which is mostly hearsay without any tangible evidence to support the statements.

 

20. I therefore cannot make any admittance to any alleged debt. The claimant has been unable to produce a copy of the executed signed agreement or Default Notice and I therefore respectfully request that the court dismiss this claim and award costs it feels fit in defending this matter.

 

STATEMENT OF TRUTH

 

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

 

Signed

 

 

Dated this day……………………..2017

[AndyOrch]

Very good well done....

[blacksofa]

Phew! Thanks Andy.

Couldn't have done it without you though.

 

 

Have printed off my Exhibits, and a sort of contents list for them.

Am just about to print out the WS and quickly

compose a covering letter and then it's off down the Post Office for me.

 

 

I haven't completed my Skeleton Argument, but I understand I can take that on the day, with copies for the judge and 'them', as long as it is only crib sheet referring to the WS and doesn't introduce anything new? Hope that is right.

 

Got two addresses for BW.

I sent my CPR request to The Tannery Kirkstead Road, in Leeds,

but their covering letter with their witness statemen shows Enterprise House Apex View Leeds. Their Witness Statement shows the Apex View address...

 

Edited to add: address for Service on the DQ is The Tannery one, so I'll go with that.

I don't know, anyone would think they try to make it confusing for us!

 

Presume this is all I need in the body of the letter, with similar to the court

 

Dear Sirs

With reference to the above matter I enclose by way of service my witness statement which will be relied upon at the forthcoming hearing.

A copy of my witness statement has been filed with the court.