Lowells claim form - old Cap1 Card debt

[p_walker]

Thanks for your reply.

 

I'm having an issue with my scanner and have been fiddling around with trying to get it to connect to my network.

Of all the times for me to have a network problem!

 

I am running low on time, partly because they sent their documents quite late and I have been waiting to hear from them.

 

The long and short of it is they have a copy of a signed credit agreement from the early 2000s.

 

I can't remember that far back,

so couldn't say whether it's reconstituted or not.

Even if it is, it looks pretty convincing so it's a moot point.

 

They have also provided

a statement of default,

a default notice,

a notice of assignment

pages and pages of statements for the whole time.

 

They have made a small error in some of the paperwork

(mentioning another company instead of the creditor/claimant)

I don't think it's enough.

 

Apart from the error,

I would even admire the guy who has put it all together if he weren't my enemy!

 

I am thinking of proposing a settlement, if that is even possible.

 

*company (can't edit post)

 

This whole situation is very upsetting as it came about when I was looking after an elderly relative who was dying in a location across the country from me,

 

I missed a payment to Capital One

by the time I arrived home (relative had died)

they had already pulled the trigger on a default.

 

At the time mobile data was not available everywhere and I had no access to what was going on and couldn't get online anywhere.

There were no internet cafes, and I didn't know anyone there.

 

I got ill from exhaustion going to and from a hospital.

If I could just have made that payment at the time,

none of this would have happened.

[AndyOrch]

We need to see their WS and exhibits ...if you want an effective response in your witness statement

[dx100uk]

Stop posting or thinking about unnecessary twaddle

The claimant couldn't care less nor will the judge

 

A scanner doesn't need to be on a network..

 

Read the upload guide

Plenty of other ways to get them up here

 

 

What date is your hearing???

[p_walker]

I have scanned them now but it's too late to edit them all (50 pages), so I'm attaching the first three pages that I have done so far.

merged_witness_statement_first_three_pages.pdf

[Old Cogger]

CCA will just be a foldover short application with just name address printed on top left hand side , waffle then a siggy. no T&Cs on reverse or attached - = no T&Cs present at inception???

[Old Cogger]

50 pages of what??? theusual no headed statements???

[AndyOrch]

I have scanned them now but it's too late to edit them all (50 pages), so I'm attaching the first three pages that I have done so far.

 

We dont need 50 pages just the Witness Statement (with dates showing otherwise its irrelevant) and exhibits referred to within the WS.

[p_walker]

We dont need 50 pages just the Witness Statement (with dates showing otherwise its irrelevant) and exhibits referred to within the WS.

I have uploaded the witness statement. OK, I can go back and put the dates in but the witness statement is there.

[AndyOrch]

Yes I have seen the WS..but without dates (which Im not sure why you redacted) its useless.

[p_walker]

Here it is with the dates. I removed the dates because they are identifying information.

 

I am struggling to come up with a response to their points, really. They have provided the information, so I cannot argue that they haven't.

 

They are claiming that I am defending a claim that was obviously indefensible and cite 'Performing Right Society v Insole'.

statement_redacted_second_attempt.pdf

[AndyOrch]

And copies of UZ1 to 4 and the last page of UZ7 please. (only redact agreement number names and address and balance)

 

Andy

[p_walker]

Thanks.

 

Would it be possible to apply for an adjournment using Court Form N244 to allow me more time to deal with their arguments?

uz4_lastpageof7.pdf

[AndyOrch]

No you have had since May...what date must you submit your WS and Disclosures by?

[p_walker]

I am trying to send it today.

 

 

I don't have any arguments, though.

 

 

All I have come up with so far is:

"I submit that according to part 27.14(3) of the Civil Procedure Rules, rejection of a settlement plan does not of itself constitute unreasonable behaviour."

 

And some other generic arguments.

[AndyOrch]

What has costs got to do with submitting your witness statement ?

 

Have you actually looked at any threads to see how other posters are dealing with claims and how they prepare their statements and evidence ?

[p_walker]

They have claimed I have been unreasonable under part 27.14(2)(g) of the CRP.

 

Yes, absolutely. I have spent ages reading threads, most of the witness statements are based around the Claimant not providing the default notice, credit agreement etc. They have now provided these.

 

Can I use the fact that it is a pre-2007 credit agreement but they have provided just a signature and not the terms and conditions, the APR etc.?

[dx100uk]

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witness statement card

[AndyOrch]

And do you think that what they have disclosed is perceived to be a valid copy of the full executed credit agreement pursuent to the CCA1974 ?

 

I dont really give a rats **** what they claim given they have not complied with your request pursuant to section 78 the CCA1974...you could state the same.

 

They are in default of your request..they are prevented from seeking any relief until they can disclose the full agreement with T&Cs.......

[p_walker]

This is what I have so far:

 

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

 

1. The claimant is an Assignee a buyer of defunct or bad debts which buy on mass portfolios of debt at a much reduced cost to the amount claimed and which the original creditors have already wrote 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.

 

2. On or around the 7th April 2017, I received a claims form from the County Court Business Centre, Northampton, for the amount of £XXXX. The claimant contends that the claim is for the sum of £XXXX in respect of monies owing under an alleged agreement with the account no. [REDACTED} pursuant to The Consumer Credit Act 1974 (CCA).The particulars of claim fail to state when the alleged agreement was entered into.

 

3. Contained within the claimants’ particulars the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA.

 

There are no details contained within its particulars about when the alleged default occurred or date of any alleged Default Notice or the degree of default or details as to how the sums claimed have accrued.

 

The claimant is put to strict proof to evidence details of the default and service of any Default Notice.

 

4. The particulars of claim state the debt was legally assigned by Capital One (Europe) PLC to the Claimant and that Notice was provided by way of a Notice of Assignment. The claimant is put to strict proof to evidence the details of assignment.

 

5. On 5 April 2017 I made a formal written request to Lowell Portfolio I LTD, requesting a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT A].

 

6. Apart from the Notice of Assignment, I have not received any of the documents mentioned in the Claimants’ claim form.

 

7. The form supplied by the Claimant (“UZ1”) does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, in Schedule 6 Column 2 of SI 1983/1553:

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

 

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

 

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

 

For a Running Account (credit card) agreement BC and D are applicable

 

8. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:

 

“127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

 

8. This situation is supported by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is respectfully drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

9. With reference to point 20 of the Claimant’s Witness Statement, which alleges that I have ‘been unreasonable under part 27.14(2)(g) of the Civil Procedure Rules (CPR), I submit that according to part 27.14(3) of the Civil Procedure Rules, rejection of a settlement plan does not of itself constitute unreasonable behaviour.

 

On the contrary, the behaviour of the Claimant, namely telephoning numerous times a day from unlisted phone numbers has constituted harassment of the Office of Fair Trading guidelines and contrary to the ‘Administration of Justice Act 1970’ in that it is intended to cause alarm and distress to the recipient.

 

10. In point seven of their Witness Statement, reference is made to ‘a legal assignment on 24 June 2015 pursuant to Section 136 of the Law of Property Act from Shop Direct to the Claimant’. I submit that I have never had any financial or legal relationship with ‘Shop Direct’ whatsoever, therefore no such legal assessment could ever have taken place.

 

11. For all of the above reasons, the Defendant respectfully submits that the Claimant’s claim is without merit.

 

12. I respectfully invite the Court to strike out the Claimant’s claim.

 

Should 'Claimant' be capitalised?

 

Sorry to be a bother but does anyone have any thoughts on this as I would like to send it? I know it's not great already.

 

I have added this:

 

9. With reference to point 20 of the Claimant’s Witness Statement, which alleges that I have ‘been unreasonable under part 27.14(2)(g) of the Civil Procedure Rules (CPR), I submit that according to part 27.14(3) of the Civil Procedure Rules, “rejection of a settlement plan does not of itself constitute unreasonable behaviour”. On the contrary, the behaviour of the Claimant, namely telephoning numerous times a day from unlisted phone numbers has constituted harassment of the Office of Fair Trading guidelines and contrary to the ‘Administration of Justice Act 1970’ in that it is intended to cause alarm and distress to the recipient. Furthermore, the Claimant’s Solicitors has behaved unreasonably by sending a threatening letter, for example, one which claimed to give ‘Notice of a Pending County Court Judgement’, which gives the impression through the use of the word ‘pending’ that the Judgement would definitely be made (Exhibit B).

 

10. Despite my defence addressing the Particulars of Claim, the Claimant has behaved unreasonably by not complying with my legitimate requests for documentation. Furthermore, in Spearing v Jackson [2000] CLY 169 it was held that continuing with a claim which the claimant must have known had little prospect of success amounted to unreasonable behaviour.

[AndyOrch]

Should 'Claimant' be capitalised?

 

No......its a good start but lets not rush this..better a day late than a weak submission.

 

When I draft a witness statement its better to run a printed copy of theirs have it at the side of your PC and then draft yours in response to each paragraph they have raised..either accepting or refuting and pointing out your arguments and their errors.

 

Looking at their exhibit of the agreement I could draft 10 chapters in response to that 1 paragraph alone.

 

So your opening will be .......

 

"IN THE ******* county court

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

 

BETWEEN:

Claimant

Hoist Portfolio Holding 2 Ltd

 

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.Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and Capital 1.On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity by way of a section 78 request and CPR 31.14.

 

2. 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.

 

3. It is my understanding that the claimant is an Assignee a buyer of defunct or bad debts which buy on mass portfolios of debt at a much reduced cost to the amount claimed and which the original creditors have already wrote 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.

 

4. (Start here with the claimants points raised)

 

Attack the agreement...thats their weak spot and were their claim is vulnerable

[p_walker]

Oh no, I though it was all right. Thanks, though.

 

Are points 7 and 8, and the second no. 8 (wrong numbering) no good then?

[AndyOrch]

The points are fine...except 9...just polishing it for you now.

 

CPR 27.14(2)(g) is in connection with awarding costs and when costs are considered and not really an argument used to strengthen a witness statement of claim...they are getting a little ahead of their selves by raising this considering that they are in default of a section 78 request...therefore its irrelevant

[p_walker]

Hi everyone. I am going to ask them if they will settle with a Tomlin order,

 

is there any particular way I should word my email

 

is there any particular person I should contact?

 

They are a very large organisation.?

 

I would appreciate any help with this.

[dx100uk]

why?

[p_walker]

I've just had a mental health crisis and cannot possibly attend court, not under any circumstances.