Lowell claimform - old vanquis card debt - opps used CPR 18 - help theyve complied!!

[AndyOrch]

Nothing to stop you making a start...but you need to chase up that date.

 

Trial ...hearing ...claim...case.....one and the same

 

 

Andy

[macker16]

Hi

 

I have now received a hearing date for this claim, letter attached. The letter that i received on the 19 Feb said about doing WS but this letter says nothing about a WS it just mentions about the documents that i will rely on in court.

 

What does it mean about the documents i will rely on in court. Obviously i am reliant on the evidence that the claimant has provided or am i completely thinking about this in the wrong way.

 

Thank you in advance for any advice that can be given with this claim, this is the last of 3 and what i consider to be the hardest one as they have provided all the documents that i have asked for so really dreading the court date for this one

 

macker16

lowells 2 may 18.pdf

[dx100uk]

yes its means do a witness statement and send it to them and the court by 14 days before 2md may

plenty here to follow

[macker16]

Thanks for your reply dx100uk, what I'm confused about is the documents that I need to send the claimant and the courts as the only documents I've received are the ones that I've requested the claimant to provide as evidence??

[dx100uk]

your requests CCA/CPR

[macker16]

Do I put that in my WS or is there a form that I use?

[dx100uk]

goes in your WS

 

plenty of examples here

use the search CAG box of the top red toolbar.

 

witness statement claimform card

[macker16]

Thank you, I'll have a look.

[macker16]

Hi

 

Would somebody be kind enough to have a read through my WS, will this be ok to send?

 

When i send the WS do i send a copy of the CCA and CPR18 as well?

 

 

I make this Witness Statement in support of my 2 defences dated 13 July 2017 and 20 November 2017 and in response to the claimants claim dated 12 June 2017 which was submitted through the County Court Business Centre.

 

1. It is my understanding the claimant is an Assignee, a buyer of defunct, disputed or bad debts, which are bought en masses as portfolios at a much reduced cost of the amount claimed….10p to 15p in the pound and which are already written off as capital loss and claimed against taxable income by the original creditor. The claimant then issues claims en masses with little or not evidence or documentation as a ‘fishing exercise’ claiming the full amount of alleged 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. 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 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. Background

 

Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and Vanquis. On receipt of this claim form I could not recall the exact details of any agreement or debt and therefore reasonably sought clarity and information from the claimant.

 

On the 4 July 2017 I formally requested via CPR18 and s.77 CCA 1974:

 

A copy of the original agreement

A statement of account

A copy of the Terms and Conditions as applicable at the time of the agreement

A copy of the Default Notice/termination notice

A copy of the Notice of Assignment showing the claimants legal right to take action

 

Having made a claim, the above date should have been immediately and fully available from the claimant and as per the above formal requests duly sent to the defendant to allow a swift conclusion.

 

4. Disclosures

 

The claimant did not respond to any of my requests made on the 4 July 2017 and has not provided all the documentation that was requested on the court order 4 October 2017.

 

 

The claimant has failed to provide the original agreement and terms and conditions.

 

I have received a document claiming to be the ‘default notice’ however it is highly inconsistent in that it is not on headed notepaper, it contains no formal company information e.g company numbers and is not in the same format of other letters sent e.g letter from Vanquis dated 22 September 2016.

 

5. Conclusion

 

The claimant has failed to comply with my formal requests on the 4 July 2017. The claimant has not provided all the documentation that was requested by the court on the 4 October 2017 and I can only presume that the claimant does not have the legally required original agreement and terms and conditions and has merely tried to obtain an undefended default judgement.

 

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

 

Signed ______________________

 

 

Date ______________________

 

 

 

Many thanks

 

Macker16

Edited April 9, 2018 by macker16
forgot to put witness statement in

[AndyOrch]

So 19th April is the cut off date to exchange witness statements and disclosures.

 

Ring the court today and see if the claimant has paid the hearing fee...(deadline was 4th April)

 

 

Andy

[macker16]

Hi

 

I've contacted the court and they have paid the fee so looks like it is going ahead.

The hearing date is the 2 May, so witness statement to be filed by the 19 April?

And do I send a copy of the CCA request and cpr18?

Also the default notice that is not on any headed paper and in various fonts.....do I send a copy of that as well as I've maDe reference to it in my state.

 

Is the WS ok to send?

 

Macker16

[AndyOrch]

Yes 19th April is the deadline to exchange...(14 days before the hearing 2nd May)

 

You send anything referred to in your defence or witness statement which you wish to rely on as you standard disclosure.

 

As we have already discussed at length at the beginning of this thread..CPR 18 is not applicable to small claims track claims...but given that you made application relying on this legislation then yes you will have to disclose your request/application etc etc.

 

With regards to your WS..you refer to sec 77 ? thats for Loans.....credit cards are section 78.

 

The whole basis of your statement relies heavenly on the claimant not complying with your requests for documents and nothing in support of any dispute with the actual debt.

 

Standard disclosure ( the stage you are now) is when the claimant will disclose all their documents relied upon...so come 19th April and they send you their statement and disclosures...then your statement becomes irrelevant ?

[macker16]

Thanks for the reply Andy. I will change it from s77 to 78 (I was using some info from another post on this forum)

 

Your right I have nothing to dispute this debt with which is a big problem.

 

The only thing I can do is hang on to the hope that if they had the original credit agreement then surely they would have submitted it with the other documents when the courts requested them on the 4 October.

 

Do you the courts take it seriously that the claimant does not have the credit agreement or terms and conditions, all they sent was the online digital application (copy previously uploaded) which they say I would have put a tick in a box to accept the terms and conditions?

 

Macker16

[AndyOrch]

Then why not add what I drafted for your defence....

 

5.With regards to Original Loan Agreement the claimant has only provided a copy of an on screen Digital Signature Application details which cannot be regarded as a copy of the Original Executed Credit Agreement pursuant to section 78 of the CCA1974 or sections 60 and 61 and 61A of the CCA1974 and therefore the claimant is prevented from relying on this disclosure as the basis of a Credit Agreement and is therefore unable to enforce this document as a Credit Agreement pursuant to section 127.1.....

 

(za)section 55(2) (disclosure of information), or

 

(a)section 65(1) (improperly executed agreements)

 

And is also devoid of any Terms and Conditions.

[macker16]

I didn't know I could put that in, thank you Andy. I'll also add that in and then upload again.

 

Macker16

Edited April 21, 2018 by dx100uk
Quote

[AndyOrch]

Of course you can ...thats what a witness statement is ......a particularised version of your defence and arguments to support your defence.

[macker16]

Hi

 

I've made the changes you've kindly advised, is this now ok to send? Also do i need to send my defence again?

 

I make this Witness Statement in support of my 2 defences dated 13 July 2017 and 20 November 2017 and in response to the claimants claim dated 12 June 2017 which was submitted through the County Court Business Centre.

 

1. It is my understanding the claimant is an Assignee, a buyer of defunct, disputed or bad debts, which are bought en masses as portfolios at a much reduced cost of the amount claimed….10p to 15p in the pound and which are already written off as capital loss and claimed against taxable income by the original creditor. The claimant then issues claims en masses with little or not evidence or documentation as a ‘fishing exercise’ claiming the full amount of alleged 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. 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 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. Background

 

Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and Vanquis. On receipt of this claim form I could not recall the exact details of any agreement or debt and therefore reasonably sought clarity and information from the claimant

 

On the 4 July 2017 I formally requested via CPR18 and s.78 CCA 1974:(see exhibit 1a/1b)

 

A copy of the original agreement

A statement of account

A copy of the Terms and Conditions as applicable at the time of the agreement

A copy of the Default Notice/termination notice

A copy of the Notice of Assignment showing the claimants legal right to take action

 

Having made a claim the above date should have been immediately and fully available from the claimant and as per the above formal requests duly sent to the defendant to allow a swift conclusion.

 

4. Disclosures

 

The claimant did not respond to any of my requests made on the 4 July 2017 and has not provided all the documentation that was requested on the court order 4 October 2017. (see exhibit 1c)

 

 

The claimant has failed to provide the original agreement and terms and conditions. The Claimant has only provided a copy of an on screen Digital Signature Application details which cannot be regarded as a copy of the Original Executed Credit Agreement pursuant to section 78 of the CCA1974 or sections 60 and 61 and 61A of the CCA1974 and therefore the claimant is prevented from relying on this disclosure as the basis of a Credit Agreement and is therefore unable to enforce this document as a Credit Agreement pursuant to section 127.1..... (see exhibit 1d)

 

( za)section 55(2) (disclosure of information), or

 

(a)section 65(1) (improperly executed agreements)

 

And is also devoid of any Terms and Conditions.

 

I have received a document claiming to be the ‘default notice’ however it is highly inconsistent in that it is not on headed notepaper, it contains no formal company information e.g company numbers and is not in the same format of other letters sent e.g letter from Vanquis dated 22 September 2016.

 

5. Conclusion

 

The claimant has failed to comply with my formal requests on the 4 July 2017. The claimant has not provided all the documentation that was requested by the court on the 4 October 2017 and I can only presume that the claimant does not have the legally required original agreement and terms and conditions and has merely tried to obtain an undefended default judgement.

 

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

 

Signed ______________________

 

 

Date ______________________

 

Many thanks

 

Macker16

[AndyOrch]

Yes run with that.....I cant offer anything further to add....except.....

 

On the 4 July 2017 I formally requested via CPR18 and s.78 CCA 1974: (See attached exhibits 1a /1b)

 

The claimant did not respond to any of my requests made on the 4 July 2017 and has not provided all the documentation that was requested on the court order 4 October 2017. (see exhibit 1c)

 

The claimant has failed to provide the original agreement and terms and conditions. The Claimant has only provided a copy of an on screen Digital Signature Application details which cannot be regarded as a copy of the Original Executed Credit Agreement pursuant to section 78 of the CCA1974 or sections 60 and 61 and 61A of the CCA1974 and therefore the claimant is prevented from relying on this disclosure as the basis of a Credit Agreement and is therefore unable to enforce this document as a Credit Agreement pursuant to section 127.1..... (see exhibit 1d)

 

and attach and mark copies with the relevant references.

 

 

Andy

[macker16]

Thank you Andy

[macker16]

Me again

 

With regards to signing the WS, do i have to sign the copy of the WS that i am sending the claimant?

 

Many thanks

 

Macker16

[jon8214]

no you don't

[macker16]

I need some further advice regarding the notice of assignment.

 

I have just found the original notice of assignment that was sent from Vanquis which was sent on official headed paper and then i have another notice of assignment that has been sent from Lowells that is then copied word for word but not on any headed paper and in a different font (the same as the default notice) Which now makes me question more that Lowells have typed the non headed Default Notice and Notice of Assignment.

 

My question is.......should i disclose the 2 different Notice of Assignments that i have. I also i a letter from Lowells Solicitors confirming they have enclosed the Notice of Assignment.

 

Macker16

[jon8214]

its not up to you to disclose anything you have its up to the claimant to provide the paperwork required for the claim

[macker16]

Also, got a bit of a problem. I cant find the original court order dated 4 October, i've only got the copy that i scanned in which has my personal info removed, will the courts still accept this?

 

Do you think that i would stengthen my claim that it is not the original default notice and that Lowells have produced the document themselves?

[jon8214]

not sure on that

 

Andy will comment when he comes on

 

jon