Lowell claimform - old Creation Finance loan debt***Settled Tomlin Order***

[AndyOrch]

Make sure yours is submitted on time along with your disclosures then we will advise if they fail to serve theirs on you...along with the consequences.

[D1ngle]

Sorry disclosures? You mean the copy I send to Lowell?

[AndyOrch]

The directions of the court state that you should by xx xxxx 2017 file all your documents and witness statement...disclosures are the documents that you rely on that you have referred to in either your defence or and witness statement.

[D1ngle]

Ok got it. So I have to send copies of docs I refer to. Thanks, I wouldn't have.

 

Any issues in my statement? Is what I have written show they have not provided enough info?

 

Thanks

[AndyOrch]

What date are you to exchange witness statements by D1ngle ?

[D1ngle]

20th will be 14 days before the event. I have been waiting for them to send theirs.

 

Update on statement:

 

1) In April I received a letter from Lowells solicitors notifying me of legal action against me against a debt that was not included on past debt management plans. On April 24th I made a formal request pursuant to s.77 or 78 of the*Consumer Credit Act 1974 to provide a true copy of the CCA and other documents depending on what the alleged debt refers proof of debt.

 

2) On May 5th I received a letter stating Lowell did not have these documents and my account was on hold.

 

3) Within 14 days of the date of service of 18th April 2017 I issued my defence and wrote to Lowells solictors with a request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the documents mentioned in their Particulars of Claim.

 

 

This was for:

 

a. The agreement. Under provision CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

b. The Default Notice.

c. The Notice of Assignment.

d. Details and copy of the notice provided to me of the assignment.

e. The details and proof of the requests for payments for £1,199.77.

f. Full statement of account with detail of original amounts plus how the £1,119.77 was calculated.

 

4) In mid June I received a letter dated the 5th of June stating including an inadequate copy of the CCA (just a plain page and no other details e.g. Ts&Cs) and a plain white page copy of a letter introducing Lowells and same quality copy of a letter from Lowells introducing themselves (the notice of assignment).

 

 

It states in this letter that they are still awaiting the Copies of the Statement and Default notice – As yet I have not received either of these. This letter of the 5th June is the last letter I have received from Lowells directly.

 

5) As per the above, I have not received by way of CPR 31.14 the full copies of the documents referred to in the particulars of claim. As per rule 16.4(4) it is required the claimant prove the allegation, but as yet I do not have the information required. These include:

 

a. A default notice.

b. Details and requests for payment for £1,199.77

c. Full statement of account and how they arrived at the figure with details of past payments.

 

6) On top of not having any of the above details in point two, I was not provided with the copy of the CCA with the associated Ts&Cs. I just have a single page and this is not adequate under the CCA request. Also neither the CCA or the notice of assignment is a true copy and was sent after the court proceedings were issued. I understand the true copies are required at the hearing.

 

7) I am yet to receive any Witness Statement and disclosure from the claimant.

 

8) If owed I am happy to come to an agreement with the claimant, but the claimant has not provided me the information (1) they said they would on the 5th June, (2) requested via the CPR or (3) even what would be reasonably required for me to make an informed decision regarding payment.

 

Question - looking through Lowells documentation and is the NOA meant to come from the original lender? The NOA has not details on it at all and only mentions Lowell. It is just a plain white page stating "We are writing to notify you that Creation Consumer Finance sold your account to Lowell".

 

I have no way of knowing who this is from or if it was Lowell who sent me this.

 

Looking back through and Lowell definitely didn't send the Default or statement. In their letter they state "whilst we endeavour to provide evidence of the debt you appreciate it is dependent on receipt of documentation from original creditor".

[dx100uk]

legally required via the CPR

there is no legal requirement under CPR

its a request.

 

 

use that for the CCA request which is.

[D1ngle]

legally required via the CPR

there is no legal requirement under CPR

its a request.

 

 

use that for the CCA request which is.

 

So change CPR to CCA in the para 8?

[AndyOrch]

Did you use or adapt the defence in post #12 that I provided as an example?

[D1ngle]

Yes. That was pretty much the basis of the defence plus some other parts. I just adapted the wording. I used some of the defence in the witness statement. I also have the letters that they sent that show Lowell are incomplete on the requests.

 

The area I don't know is why their CCA response is "woefully inadequate". You mentioned Ts and Tcs for start?

 

Also if we both agreed to mediation why didn't that happen?

 

Thanks

 

D

[D1ngle]

If you recall the defence was written before they provided the CCA and NOA. The Witness statement now has the points from the defence with these two points taken out/less emphasised.

 

Is the fact they haven't provided the Default notice and Summary of account enough to get this thrown out?

 

Or will the fact the CCA is inadequate be needed? Or I have no original copy of a NOA from the original owner of the debt?

 

Or is it fair they started court action before providing any of this info?

[AndyOrch]

Yes. That was pretty much the basis of the defence plus some other parts. I just adapted the wording. I used some of the defence in the witness statement. I also have the letters that they sent that show Lowell are incomplete on the requests.

 

The area I don't know is why their CCA response is "woefully inadequate". You mentioned Ts and Tcs for start? Mmm not me you will have to check with DX

 

Also if we both agreed to mediation why didn't that happen? Irrelevant anyway...wouldnt have happened

Thanks

 

D

 

If you recall the defence was written before they provided the CCA and NOA. The Witness statement now has the points from the defence with these two points taken out/less emphasised.

 

Is the fact they haven't provided the Default notice and Summary of account enough to get this thrown out? Possible depends on the calibre of the district judge

 

Or will the fact the CCA is inadequate be needed? Or I have no original copy of a NOA from the original owner of the debt? Either can provide it...does not need to come from the OC

Or is it fair they started court action before providing any of this info? They are not required to..its only when you defend they have to play catch up

 

Below is a recent draft of a witness statement in the correct format...you have all the main points covered in yours but it should look like the following along with exhibits......complete with closing paragraph.

 

 

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 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 ** Sept 2016, I received a claims form from the County Court Business Centre, Northampton, for the amount of £****.The claimant contends that the claim is for the sum of £xxxx.xx in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX 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 MKDP LLP (Ex HSBC) 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 ** November 2016 I made a formal written request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT A]. I also enclosed a copy of the letter sent directly to Hoist Portfolio Holding 2 Limited, requesting a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT B].

 

6. On ** January 2015 I made a formal written request to the Claimant for them to provide me with a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT C].

 

7. Apart from the Notice of Assignment, I have not received any of the documents mentioned in the claimants claim form.

 

8. The Claimant replied to my second request on ** September 2016 [EXHIBIT D] and failed to supply any documents that I requested.

 

9. The Claimants pleaded case is that the Defendant entered into an agreement with HSBC under account reference **********. I am uncertain as to which account this refers to. It is accepted that I have had banking products with HSBC in the past however I have no recollection the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose this agreement on which its claim relies upon.

 

Until such time the claimant can comply and disclose the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

 

 

Statement of Truth

 

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

 

 

Signed: ________________________________

 

Dated: ________________________________

[D1ngle]

Great, thank you!!

 

I will use this as the basis.

 

I'll send off and let you know how it goes.

 

What's your opinion on success here?

[AndyOrch]

All depends on the Judge you get...some are good and know the CCA...some dont and some dont care.

[dx100uk]

woefully incomplete...I said

[D1ngle]

woefully incomplete...I said

 

Hi what should they have included?

 

Thanks

 

Dan

[dx100uk]

https://www.consumeractiongroup.co.uk/forum/showthread.php?476990-Lowells-Claimform-old-Doorstep-Provi-loan-Submitting-defence-on-the-last-day&p=5063663#post5063663

[D1ngle]

https://www.consumeractiongroup.co.uk/forum/showthread.php?476990-Lowells-Claimform-old-Doorstep-Provi-loan-Submitting-defence-on-the-last-day&p=5063663#post5063663

 

Sorry DX, only just saw this reply. Thank you so much for this!

 

I'll read it fully and list the areas I think are missing from Lowell for confirmation.

Cheers

 

D

[D1ngle]

So if I am right here then this is the regulation with my comment in red:

 

77 Duty to give information to debtor under fixed-sum credit agreement.

 

(1)The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it they have not provided the pre-contract credit information listed so are in default of this?), together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

The CCA does say that under 77b of the CCA that I can ask for statement of form, instalments owing, breakdowns and interest etc. This is what I asked via the CCA request so they have not provided this fully correct?

 

(a)the total sum paid under the agreement by the debtor;They have provided a total amount owed and the last payment info so they are compliant this this line?

 

(b)the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and (They have not provided the break down so have not fulfilled this obligation?)

 

©the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due. As above?

 

(2)If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained. Does this help them and give them a get out above? I think not as they haven't provided me with any of this info around breakdown of payments?

 

[F2(2A)Subsection (2B) applies if the regulated agreement is a green deal plan [F3(within the meaning of section 1 of the Energy Act 2011)].

(2B)The duty imposed on the creditor by subsection (1) may be discharged by another person acting on the creditor's behalf.]

(3)Subsection (1) does not apply to—

(a)an agreement under which no sum is, or will or may become, payable by the debtor, or

(b)a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4)If the creditor under an agreement fails to comply with subsection (1)—

(a)he is not entitled, while the default continues, to enforce the agreement; F4. . . Since they have not complained above this account is still in default to the request and so they cannot enforce the agreement?

(b)F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)This section does not apply to a non-commercial agreement.

 

So essentially the main argument is that since they have not complied fully with the CCA (mainly the pre contract credit info and also the info on how they have calculated the amounts) they cannot enforce this debt?

[D1ngle]

Hi

 

I have received their witness statement back dated to the 12th of Sep and I also have the details another letter backdated to the 7th September with the CCA, terms and statement of account.

 

What do I do here?

 

They would just be awarded?

[dx100uk]

Awarded what?

You got those docs last June

What different about them?

[D1ngle]

No.

Last time when I asked for the CCA I only had the single signed sheet.

 

They missed the related documents (terms) and the full breakdown of payments and how they got to the final amounts which are both required to be provided for the CCA request to be fulfilled. They are now compliant to the CCA (even though I only got it Sat).

 

They also sent a proper default notice.

 

They have sent me details of info I asked for and they hadn't sent up until now i.e.

Everything my defence relied on.

 

Can they just back date it?

Seems unreasonable.

But I can't see how I can defend it.

 

Thanks

 

D

[dx100uk]

Bit cheeky to file their WS so very late

And backdate it

 

Scan up what they've sent fullWS

[D1ngle]

Attached is the WS with the two main parts of they rely on (everything except the follow up letters they sent).

 

Thanks

 

D

LowellWS.pdf

[D1ngle]

Attached is the WS with the two main parts of they rely on (everything except the follow up letters they sent).

 

Thanks

 

D

 

These two parts are what they sent dated the 7th also. They sent the CCA and these two parts. with the letter on the 7th there was a "without prejudice offer" where they ask me to get in touch to discuss payment and they'll cancel the case so they knew I was waiting on them to provide this info and that they didn't have them.