Lowell Claimform - old JDW CAT debt

[dodgersmad]

do you think i need to alter my witness statement,can thay use a cca Reconstruction with out a signature as stated.

[dx100uk]

no leave that WS andy gave you alone

[dodgersmad]

will it not have to be canged

 

10 The claimant and its solicitors have not complied fully 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. WS

 

11 The claimant have 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. WS

 

17 It is therefore contended that there is no outstanding balance nor as the claimant been able to produce any documentation to prove otherwise and I therefore respectfully request that the court dismiss this claim and award costs it feel fit in defending this matter WS even thou reconstructed

[dx100uk]

no rush

let andy advise

my WS has to be in for 13 th march

[dodgersmad]

sorry but i have done another ws that i have found and re edited i would like to put in the point of no adhering to new pap, i have until Tuesday and now starting to panic a bit,

 

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

 

 

 

4. 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.

 

 

5. 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 0: COPY OF CCA Request LETTER, (EXHIBIT 1: CONSUMER CREDIT ACT SECTION 78, EXHIBIT 2: RECEIPT FOR POSTAL ORDER)

 

 

6. This letter was sent recorded delivery. EXHIBIT 3 (PROOF OF RECORDED DELIVERY POSTAGE)

 

7. 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

 

(EXHIBIT4: CPR 31.14, EXHIBIT 5: COPY OF CPR REQUEST LETTER (two pages), EXHIBIT 6: COPY OF RECORDED DELIVERY SIGNATURE) EXHIBIT 7: 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 10 dated 3/11/17““we still await receipt of a copy of the agreement and default notice from the original creditor and a notice of assignment from our client your account will remain on hold until the aforementioned documents are received. 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.

 

8. The claimant’s solicitor provides exhibit sr3 within their witness statement and disclosure, at their points 16. 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.

 

9. 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 11) 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 12) and is therefore unenforceable.

 

10. 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 13)

 

11. 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 point 5, 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 14 CCA SECTIONS 87 (1), 88)

 

12. 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 15)

 

13. 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.

 

14. 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.

 

15. 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.

 

 

16. 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……………………..2018

[dx100uk]

why are you panicking about what?

[dodgersmad]

mainly there ws and the point of payments made to a collection agency,the point a payment was payed in December and was assigned the same month

[dx100uk]

Their not there

Paid not payed

[dodgersmad]

today's the last day to get it in:???:

[dx100uk]

you are a litigant in person certain leeways are given...

 

let andyorch comment if he has time.

 

pes I think the WS is a bit bloated.

[dodgersmad]

Thanks Dx i have done two dont know which to use

 

the first one Andy helped before ws came and the one i have posted later but has been edited to the one posted,

 

dont have time to mask out the personal details, but can pm you the edited version

 

thanks for your help Dodger

[shamrocker]

A couple of things for you to consider.

 

- Take photos of your documents in good light, such as on a window cill in daylight. They're very difficult to read as they've done them.

- The point about hearsay evidence comes across as straw clutching. Which points within their WS do you infer is hearsay?

- Their supply of a recon agreement is not fatal to their claim, in terms of providing proof. You need to make a positive assertion as to why the agreement supplied is unenforceable.

- They are sketchy on the issuance of a Default Notice. Ram the point home that a Default Notice was never issued by the original creditor - therefore, by virtue of CCA s.87, the Claimant is not entitled to... a, b, c, d, etc.

- Have you raised their non-compliance with the new PAP protocol within your WS? Check with Andy as to the exact relevance of it though.

 

I just skimmed across your post, so maybe I missed a few things, but the above stuck out to me.

[dodgersmad]

Thanks Shamrocker on the points you have raised I think i will go with the first one and add some points ie default and pap Dodger

[AndyOrch]

Having re read their WS I see that they have infact complied with PAP so any reference to none compliance should be removed.I agree that the weak point is the service of a valid default notice pursuant to sec 87 and therefore should be the main focus of your WS.

 

As stated the service of the recon in compliance to your sec 77 request will suffice as you entered the agreement post April 2007....and as already stated a recon must be an exact copy with regards to the detail of the original agreement and be mirror like.The only circumstances that a recon can not be considered for enforcement post April 2007 if the details are incorrect ( Wrong address/wrong dates/APR etc) or if the agreement has been changed or modified since its inception...but in reality you would think that the original could be supplied on an agreement that is only 10 years old.

 

Apart from the default notice issue they seem to have their paperwork stacked high on this and the fact that you made payments post assignment will go against you...providing you a get a good DJ that will stick with DN issue and follow the CCA1974 this really is touch and go on the outcome and may be worthwhile considering some settlement agreement before hearing.....just IMHO.

 

 

Andy

[dodgersmad]

Thanks Andy i have changed my ws to reflect points raised i have left out the point wrt pap i could use this as a skeleton argument later, i will put up my ws later when i have had time to edit out personal details, to late to worry over it now as it will be in the post at 4 pm.

 

Thanks Dodger

[dodgersmad]

well its in the post but will miss time line by one day as last post for next day was at 430 and i got there at 435 due to traffic. will have to see if what happens.

 

this is the ws defense i sent please let me know if it was enough.

 

In the county court xxxxx

Claim No.

BETWEEN

Low (Claimant)

 

v

 

xxx xxxx. (Defendant)

(Address)

 

 

 

WITNESS STATEMENT OF xxxxxxx(DEFENDANT)

 

1. I make this statement in support of my defence to the claim above and rely on the exhibits attached.

 

2. This claim is for a Home Shopping agreement regulated by the consumer credit Act 1974 between the Defendant and xxxxxx Company Ltd.

3. It is admitted that I have held a catalogue account a number of years ago which I used to purchase some goods.

4. 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.

 

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

 

 

6. Onxxxxxx, 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 1: COPY OF CCA Request LETTER, EXHIBIT 2: RECEIPT FOR POSTAL ORDER)

 

7. This letter was sent recorded delivery (EXIBIT 3) and as such was signed for on xx xx xxx

8. On DATE xx xx xx, I made a CPR 31.14 formal written request to the claimant’s solicitor, sent by recorded delivery, which was received and signed for on xx xx xx at 10:42 am. The claimant’s solicitors responded and acknowledged my request for documents and referred my request to Lowell Portfolio 1

 

(EXHIBIT 4: COPY OF CPR REQUEST LETTER, EXHIBIT 3: PROOF OF RECORDED DELIVERY POSTAGE) EXHIBIT 5: CLAIMANT’S SOLICITOR REPLY.

 

I enquired for information including:

 

1 Agreement/contract

2 Notice of assignment

3 Default warning letter

4 Default notice

9. Despite the rather miss-leading assurance in (Exhibit 8) dated xx xxx x ““we still await receipt of a copy of the agreement and default notice from the original creditor and a notice of assignment from our client your account will remain on hold until the aforementioned documents are received. 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 and its solicitors have not complied fully 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 until we received the claimants Witness statement on the xx xx/2018.

 

11. On the xx xx xx we received a letter from Lowell Solicitors claiming a copy of the credit agreement by xxxx x xxx (Evidence 6)

 

12. The agreement (Evidence 6) is an unsigned and as a date stamp that is deferent date to the date stated on the particulars of claim, 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.

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, neither the claimant nor the claimant solicitor both have 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. CCA SECTIONS 87 (1), 88)

14. 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. (EXIBIT 7) Neither appear to be copies of a letter on headed note paper and are reconstituted versions as stated and not proof of a valid notice pursuant to Section 136(1) of the Law of Property Act 1925. And the defendant denies it never received the reconstructed letter of claim dated xxx xx xx as stated (4) claimants witness statement

 

15. 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.

16. The claimant makes A statement that as no defence disclosing any merit has been produced by me referred at point 20 of their witness statement. 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.

 

17. As per the Civil Procedure Rule 16.5(4) it is expected that the claimant proves the allegation that the money is owed.

 

18. On the alternative, if the claimant is an assignee of the debt it is denied that the claimant has the right to lay a claim due to the contraventions of section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

19. It is therefore contended that there is no outstanding balance nor as the claimant been able to produce any documentation to prove otherwise and I therefore respectfully request that the court dismiss this claim and award costs it feel fit in defending this matter.

 

STATEMENT OF TRUTH

 

I believe that the facts stated in this witness statement are true.

 

Signed

 

Dated this day //20

 

 

thanks Dodger

[dx100uk]

how'd it go doggers?