Lowell claimform - old Fashion World JDW Cat debt***Claim Dismissed***

[Lcw91]

Just a quickie I think:

 

I'm preparing WS for my wife to be issued tomorrow, Lowell (J D Williams)

 

1. Agreement sent has no date, credit limit or signature

2. Agreement is for Fashion World not JDW

3. T&C's are for Ambrose Wilson not JDW or FW

4. T&C's are dated 24/05/10

5. The above does not correspond to the agreement.

6. Lowell are unable to lace original default notice so no proof one was even issued correctly.

 

Are these issues valid in our defence.

 

Any thoughts? Debt is for £400 and court date set for July.

 

Thanks

[AndyOrch]

We will need a little background and details Lcw

 

Please read the following link and then copy and paste the Qs and your responses back here.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2016**

 

Andy

 

PS Welcome to CAG

[Lcw91]

Ok. Will do shortly. Sorry for the PM too.

[AndyOrch]

A copy of your defence also would be helpful and the claimants witness statement if you have it......given that you are now at witness statement stage.

[dx100uk]

3. T&C's are for Ambrose Wilson not JDW or FW

 

Ambrose Wilson & Fashion World are trading names of JDW.

[Lcw91]

Yes I know that but the terms and cca should surely be for the same company.

[dx100uk]

get the info up and we'll explain.

 

 

click upload to do the PDF [one multipage PDF please! for the returns]

[Lcw91]

What is the value of the claim? £400

 

Particulars of Claim

 

1) Defendent entered at CCA 1974 regualted agreement with J D Williams

2) The defendent failed to maintain the required payments and a default notice was served and not complied with.

 

3) The agreement was later assigned to Claimant on 20/12/2012

 

4) Despite repeated requests the sum of £350 remains due and outstanding.

 

The claimant claims

 

a) sum of £350

 

b) Interest pursuant to s69 at the rate of 8% per annum.

 

c) Costs

 

Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? Catalogue

 

When did you enter into the original agreement before or after 2007? 2008

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. Assigned and issued by Lowell

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? NO

 

Did you receive a Default Notice from the original creditor? No

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? No

 

Why did you cease payments? Do not even recall having this account

 

What was the date of your last payment? Allegedly Sept 2011

 

Was there a dispute with the original creditor that remains unresolved? No agreement ever recalled

[Lcw91]

Interesting to note:

 

they say in the claim the agreement was from 2008

The defendant was not even with me then let alone this address. also different name too.

[Lcw91]

defence I filed:

 

o I received the claim XXXXXX from the Northampton County Court on 26/02/2017.

 

o Each and every allegation in the Claimant's statement of case is denied unless specifically admitted in this Defence.

 

o This claim appears to be for a Catalogue Account agreement regulated under the Consumer Credit Act 1974.

 

o The Claimant's statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

 

o The particulars of claim fail to state when the agreement was entered into.

 

o The Claimant's statement of case states that the account was assigned from JD Williams & Company Ltd to the claimant on xx/12/2012 . The Defendant does not recall receiving notice of this assignment.

 

o It is denied that JD Williams & Company Ltd served a Default notice on the Defendant pursuant to s87 of the Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

 

o I sent a request for inspection of docu ments mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

 

o Lowell Solicitors have not sent any of these documents to me. (NOW SENT via WS but not as requested)

 

o The Claimant has failed to comply with s.78 (1) of the Consumer Credit Act 1974 and by virtue of s.78 (6) of the Consumer Credit Act 1974 cannot enforce the agreement.

 

o Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

 

o I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

 

o In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

 

o It is denied that the Claimant is entitled to the relief as claimed or at all.

 

evidence from claimant attached

T+C+statement.pdf

[AndyOrch]

So have you received their witness statement yet?

[Lcw91]

yes but it is way too much to put on here Andy. I cant scan it either at the mo as my scanner is out of action.

[AndyOrch]

Well I usually draft a witness statement after reading the claimants..as this gives you an heads up of what they will rely on and what you should be countering.

 

Have you checked they have paid the hearing fee with you local county court yet?

[Lcw91]

Problem is my WS has to be in by tomorrow. We have had loads of issues that have delayed us personally. I put on the DQ that I would be the expert Witness, can I then speak at the hearing? Not sure if they have paid but they have until 22nd to do so.

[AndyOrch]

Your not an expert witness ....just a witness to the claim being a defendant...pity you didnt come here before submitting a defence then we could have advised you how to complete a DQ.

 

I will post you an example credit card witness statement shortly...see if you can adapt it to suit your dispute..best we can offer at this late stage?

 

Keep checking to see if they paid it...if not their claim will be struck out automatically

[Lcw91]

Here you go, try this.

lowell WS.pdf

[AndyOrch]

EXAMPLE

 

 

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 in the claim.

 

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.

 

1. I understand that the claimant is an Assignee, a buyer of defunct or bad debts who are based in Jersey, which are bought on mass portfolios 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 confirmed in the claimants witness statement exhibit by way of the Deed of Assignment

 

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 ******, 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 £X 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 but their witness statement states it was 1994 23 years ago.

 

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. It goes on to evidence a default notice in their exhibits which is provided by Mercers and not the actual creditor Barclaycard themselves.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.

 

Given that Mercers are in fact a Debt Collect Agency they cannot be considered to be the creditor or owner of the regulated agreement.

 

5. On the xxxxxxxxI made a formal written request by way of a CPR 31.14 to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT A].

 

6. On the xxxxxxx 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 B].

 

The claimant has since disclosed a copy of the application which purports to be the agreement within its witness statement at point 5 (exhibit HT1) and admits its very poor quality.It is averred that it is impossible to read and illegible..the court is invited to try and decipher the contents and in particular the prescribed terms pursuant to section 78 CCA1974 and sec 61 (1) c of the CCA1974.

 

The claimant tries to get around the poor quality by trying to rely on Carey v HSBC .Carey V HSBC is irrelevant in this matter and only applies to the giving of information under section 77/78/79 and is not retrospective to agreements entered into pre April 2007.I therefore contend that section 127 (1 and 2) accordingly applies in this case.

 

7. Furthermore the author of the witness statement at point 6 then tries to introduce a reconstituted version of the agreement (exhibit HT2) which is no more than a set of Terms and Conditions and in no way comply with the prescribed terms of a reconstituted version which they have previously tried to rely on at point 5 of their witness statement.

 

8. 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 Barclaycard 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 a true executed legible agreement on which its claim relies upon and not try to mislead the court.

 

Until such time the claimant can comply and disclose a true executed copy of 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: _________________________ _______

[Lcw91]

thanks Andy, I couldn't see it on my copy

[AndyOrch]

I dont suppose you have requested a copy of the agreement (CCA section 78) and a CPR 31.14 ?

[Lcw91]

Yes I did. on 23rd March. The agreement came with the witness statement as an exhibit on May 27th. It is attached in earlier post.

[AndyOrch]

Excellent well look at the example I have posted and edit to suit and add your points....post it here once finished and I will look over it later.

[Lcw91]

thank you.

[Lcw91]

Witness statement Andy

Witness statement Defendant.pdf

[dx100uk]

good work everyone.

 

I have sorted all the attachments too

[AndyOrch]

No flies on you.....what took you so long.

 

So 3 copies and add the exhibits and any responses as your evidence (this is your standard disclosure).......file and serve and retain a copy for your file.

 

Well done.

 

Andy