Lowell/? claimform - old cap1 card debt - poss SBd***Claim Discontinued***

[wakeyshakey]

Hi Ford

 

Yes it was just a statute barred defence I submitted.

I'm not sure if Lowell will be able to furnish statements as they would need to go back to the creditor to request it.

 

I haven't received any information from them as yet so don't know what their aim is.

 

I will wait til the last possible moment to submit my statement.

 

Yes, I'll have to re draft the statement if anything arrives before deadline

 

Many thanks

[AndyOrch]

I have drafted a Witness statement based on a statute barred defence.....

 

Edit to suit.

Witness statement Statute Barred borderline.pdf

[wakeyshakey]

Hi Andy

 

I have since found that the statute barred defence I made in May was incorrect as token payment were being made.

 

Do i need to continue with this or focus on the fact agreement etc have not being received as requested?

 

Thanks

[AndyOrch]

Stick with the example provided in post#63 and edit and expand to suit your argument

[wakeyshakey]

Good day to you all..

 

Please see below rough draft.

I have not included any details of the statute barred and wanted to ask if I should include it.. ie ask for proof statements as it was original defence and they replied with dates of when last payment was made? There has been no correspondence since the reply letter in June.

 

Thanks in advance

 

IN THE --------------- county court

Claim No. -------------

 

BETWEEN:

Claimant

XXXXXXXXXXXXXXXXX

 

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 to the claim.

 

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

 

2. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. 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. On or around the xxth May 2017, I received a claim form from the County Court Business Centre, Northampton, for a credit card amount of £1XXXXX..

 

4. On the xxth June 2017 I made a formal written request to the Claimant,[Exhibit A] sent by recorded delivery [Exhibit B] and including a £1 fee (which was cashed ?) for them to provide me with a copy of my consumer credit Agreement as per the claimants particulars as entitled to do so under sections 78 of the Consumer Credit Act 1974.

 

5. On the xxth June I made a CPR 31.14 formal written request to the claimant’s solicitor, [Exhibit C] sent by recorded delivery,[Exhibit B] which was received and signed for.

 

In particular I requested information in regards to their claim including: Notice of assignment and The Default Notice. The claimant has not complied with my full requests and has only sent partial documentation (Notice of assignment) despite my endeavours to inspect all of these documents and try to resolve this matter without it proceeding further.

 

6. The claimant’s solicitor stated, on the letter received on xxth of June 2017 that a request for the agreement and default notice had been forwarded to their client and they would forward the documents to me upon receipt. This is yet to happen.

 

 

7. None of the issues raised within the claimant’s statement offers any tangible evidence. The evidence provided by way of exhibits is woefully deficient and invalid and not pursuant to the CCA1974.

 

8.Unless the claimant can disclose a true executed copy of the agreement complete with terms and conditions and signed, that they refer to within its particulars of this claim, they are not entitled while the default continues, to enforce the alleged agreement pursuant to section 77.4 (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: _________________________ _______

[AndyOrch]

Okay..fine so far...perhaps after " I make this Witness Statement in support of my defence to the claim. " add the following......this sets your stall out.

 

 

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 both of which the claimant has failed to comply with.

[wakeyshakey]

Thanks Sir. I have made the change. Should I remove the comment about £1 fee being cashed as I have no evidence of that because it was a postal order?

Also, regarding statute barred defence, is it ok to leave it out?

 

Many Thanks

 

IN THE --------------- county court

Claim No. -------------

 

BETWEEN:

Claimant

XXXXXXXXXXXXXXXXX

 

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 to the claim. 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 both of which the claimant has failed to comply with.

 

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

 

2. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. 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. On or around the xxth May 2017, I received a claim form from the County Court Business Centre, Northampton, for a credit card amount of £1XXXXX..

 

4. On the xxth June 2017 I made a formal written request to the Claimant,[Exhibit A] sent by recorded delivery [Exhibit B] and including a £1 fee (which was cashed ?) for them to provide me with a copy of my consumer credit Agreement as per the claimants particulars as entitled to do so under sections 78 of the Consumer Credit Act 1974.

 

5. On the xxth June I made a CPR 31.14 formal written request to the claimant’s solicitor, [Exhibit C] sent by recorded delivery,[Exhibit B] which was received and signed for.

In particular I enquired for information including: Notice of assignment and The Default Notice. The claimant has not complied with my full requests and has only sent partial documentation (Notice of assignment) despite my endeavours to inspect all of these documents and try to resolve this matter without it proceeding further.

 

6. The claimant’s solicitor stated, on the letter received on xxth of June 2017 that a request for the agreement and default notice had been forwarded to their client and they would forward the documents to me upon receipt. This is yet to happen.

 

7. None of the issues raised within the claimant’s statement offers any tangible evidence. The evidence provided by way of exhibits is woefully deficient and invalid and not pursuant to the CCA1974.

 

Unless the claimant can disclose a true executed copy of the agreement complete with terms and conditions and signed, that they refer to within its particulars of this claim, they are not entitled while the default continues, to enforce the alleged agreement pursuant to section 77.4 (a) of the Credit Consumer Act 1974.

 

It is therefore respectfully requested that the court dismiss this claim and costs requested? (Is this applicable regarding cost request?).

 

Statement of Truth

 

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

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

[AndyOrch]

No leave it in

 

Cap 1 have confirmed last payments so I assume its not statute barred?

[wakeyshakey]

Hi Andy

 

Yes that is correct. Its not statute barred. I didn't make any reference to it in my WS so that why I asked.

Should I reference it in the WS and ask for them to provide proof (Statement) of this or is there a better way of approaching it?

[AndyOrch]

" The last payment they have showing on the old system was from August 2012. "

 

You have not stated the date of the claim form I assume sometime in May 2017...so it cant be statute barred until Sept/Oct 2018 ?

 

Why do you want to ask proof of payment ?...Do you not believe CAp1 ? Do you have evidence that no payments have been made since the default of 08?

[wakeyshakey]

Hi Andy

 

I'm getting confused.

What you've stated above is correct about last payment being from Aug 2012... so its not statute barred.

 

 

I'm not disputing cap1 either as they are likely correct.

 

What I was asking is if I should add details about it in the WS and you said "leave it in"

which I took as meaning that I should add details about statute barred in my current WS statement?

 

Or should I just leave it as it is currently and not make changes?

 

Many thanks

[AndyOrch]

I was referring to ....." Should I remove the comment about £1 fee being cashed "

[wakeyshakey]

Oh ok. thanks for clarifying.....

I'll leave it as is and not add any statute barred info.

I'll also leave in the £1 fee...

Thanks Andy

 

Now to wait and see if anything shows up in the next few days.

 

cheers

[AndyOrch]

Of course...it could all change if they do comply and serve theirs with time for you to redraft...but then again this is Lowell:wink:

[wakeyshakey]

Nightmare...

 

Is Lowell known to wait til the last possible moment to send their WS? Surely this is of no benefit to them.

 

What if i have already sent off my WS and theirs arrives a day later or even the same day? I'm guessing there isn't anything I can do in that instance?

[AndyOrch]

There is.....you can request permission to file late given that the claimants have ambushed you at the death by serving their statement and evidence late.

[wakeyshakey]

I'm assuming I can only do this if it arrives after the 14days set by the court?

 

cheers

[AndyOrch]

I'm assuming I can only do this if it arrives after the 14days set by the court?

 

cheers

 

Yes...they will if they do serve you on the last day or late.

[wakeyshakey]

ok. Thanks. I'll be ready to make any changes if anything arrives but will seek advise from yourselves first if thats ok.

 

Thanks again for your support

[Guest]

ok,

i had thought there may be a poss issue re the payments for the bar, but i see now your (+ earlier) posts about the statement.

and, i figure the claimant has double checked with the creditor following your bar defence, and prob have been given the same date info as you were given re the last payment within the deemed 6 years.

if it turns out they try argue about you later relying on wholly other issues not mentioned in yr defence, then you'll just have to make representations otherwise accordingly if required. no worries.

[AndyOrch]

Could always add a para re the initial statute barred defence and what has since transpired and reason for changing ?

[wakeyshakey]

ok,

i had thought there may be a poss issue re the payments for the bar, but i see now your (+ earlier) posts about the statement.

and, i figure the claimant has double checked with the creditor following your bar defence, and prob have been given the same date info as you were given re the last payment within the deemed 6 years.

if it turns out they try argue about you later relying on wholly other issues not mentioned in yr defence, then you'll just have to make representations otherwise accordingly if required. no worries.

 

Hi Ford

 

So Is it possible that because I only mentioned statute barred in my defence, the judge could disregard my current WS?

I'm not sure what you mean by" making representations otherwise accordingly". What does that entail?

 

Thanks in advance

 

Could always add a para re the initial statute barred defence and what has since transpired and reason for changing ?

 

Hi Andy

 

I can add a paragraph about it if you guys think it will be of benefit

Should I just reference the statute barred defence and say that I have since been advised by cap1 of when the last payment was made or is that admitting too much?

I dont want to shoot myself in the foot.

Not sure how to approach it. Can you offer some advice?

 

Thanks

[Guest]

the general rule is that things not pleaded in a statement of case (claim or defence) should not be relied on, unless with the courts permission.

but, sometimes things are related and/or relevant, and could be mentioned in wit statement. sometimes discreetely.

if needs be, you can argue why you did the barred defence initially ie on reliance of their initial (misleading) statement about the last payment.

it is a poser; whether to mention it (prior to the claimant proving/showing it) to explain the change of tact (and so admitting that it is not barred), or leave them to proof, perhaps on a 'notwithstanding'. am not sure. what do you guys think?

[wakeyshakey]

Wow. I didn't realise that there's a chance the judge may not consider anything other than the statute barred defence.

This is so stressful.

The misleading statement came from a cap1 advisor over the phone.

I doubt that would hold up if I had to mention it

[Guest]

don't worry about it, its just me being pedantic

i edited my post to say any things relevant can be mentioned.

things can be be dealt with as (if) they arise, don't worry.