PRAC/BW claimform - Instant Cash Loans Ltd t/a Payday UK***Claim Dismissed***

[fkofilee]

Difficult to say - I believe they allow for a little bit of give but i am unsure on this one. Nothing stopping you from putting it forward.

[AndyOrch]

Working on it. Given I am "late", would this be accepted as verbal evidence, if the WS was not accepted for being late?

 

Yes you will always be allowed to give oral evidence...not as good as written evidence with documents though....and assuming the claimant/court does not strike out your defence for none compliance with court directions.

 

Given you are only a week late I would assume the court would allow it...must go tomorrow though.

 

 

Andy

[barafear799]

I have made a start on my WS - but am slightly unsure as to how much detail I should go into; at the moment, I'm trying to work through a timetable of events - and trying to focus on the Claimant not following due process - but need some guidance as to how to highlight this - at the moment, I feel I am lacking the killer punch.

 

This is where I've got so far - any guidance/comments very welcome.

 

Many thanks for the help so far.

 

1. I am the DEFENDANT in this case.

 

2. I make this Witness Statement in support of my defence (dated xxxxx) and in response to the claimant’s claim dated xxxxx which was submitted through the county court bulk centre.

 

3. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

4. The Defendant has, in the past, had financial dealings with Payday UK. I do not recall the precise details of the agreement number quoted and have sought verification from the claimant by way of sending a formal request for copies of documents mentioned in the statement of case pursuant to CPR 31.14 and as formal request for a copy of the original agreement pursuant to section 77 of the Consumer Credit Act 1974 along with the statutory £1 fee. This was sent to the Claimant’s solicitor on 10 September 2017. The Defendant does not recall a notice of Assignment issued on 09/12/2016.

 

5. The required documents were not produced in the timeframe required. The Claimant states that as a debt purchaser, it relies on obtaining documentation from the originating creditor, and this can prove difficult, as they may have been archived. However, the case in question is quite recent, given that the claim is for a loan taken about 18 months prior to the claim, so on this basis, this cannot be used as a reason for failing to produce the requested paperwork in good time.

 

6. This information did not arrive before the deadline for the Defendant to file a defence to the claim. My defence was filed on 19 September 2017.

 

7. By the beginning of November 2017, the Defendant had still not received any of the requested documents. It was now time to complete the Directions Questionnaire.

 

8. The Defendant served the DQ on 11 November and sent a letter to the Claimant’s solicitor (dated 6 November) providing a copy of the DQ together with a willingness to consider mediation. The letter also reiterated that the requested documents had still not been received and that the Defendant looked forward to receiving these.

 

9. It was hoped that the documents would be produced during the period of time it took to arrange a mediation appointment. The Defendant was contacted by the mediation service via email on 12 November to arrange a suitable date. Following some negotiations on the phone to arrange a suitable date, this was confirmed by email on 24 November from the mediation service. The date of mediation was to be 13 December 2017. This gave both parties 19 days to prepare, and for the Claimant to produce the documentation, which had still not been received (by 24 November 2017).

 

10. The day of the mediation appointment arrived and the documents had still not been sent to the Defendant. At the start of the call with the mediator, the Defendant mentioned this fact. The mediator spoke to the Claimant, and the Claimant stated that they were now available and would be emailed to the mediator to be passed onto the Defendant.

 

11. The Defendant stated that this would not allow him enough time to analyse the documents and to seek legal advice if necessary. Although the Defendant tried to reach an agreement during the mediation process, both parties were unable to agree and hence mediation failed.

 

12. The documents sent via the mediator were a copy of the original credit agreement and a statement of account showing the original loan amount and transactions on a daily basis.

 

13. The Claimant had still not produced either the default notice or notice of assignment mentioned in their original Particulars of Claim.

 

 

One quick question: Is it ok to use "I" rather than the Defendant all the time?

 

Remainder:

 

 

14. I would contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

15. In the Claimant’s witness statement (received by the Defendant on 12 February 2018), they stated in paragraph 48 that the Claimant is unable to provide a copy of the default notice. It is the Defendant’s assertion that the debt is not enforceable without this documentation.

 

16. The Claimant believes that their “supporting documents unequivocally demonstrate the extent of the Defendant’s liability under the Agreement”; however, the Defendant asserts that the copy of the Credit Agreement is very generic in nature, and other than showing the defendant’s name and address details does not prove that this was the agreement relating to the outstanding debt claimed by the Claimant. The Defendant has admitted to having had past dealings with the Originating Creditor in the past.

 

17. Within the Claimant’s witness statement, they refer (in paragraph 6) to a “balance of monies due against a credit agreement between the Defendant and Instant Cash Loans Limited trading as Payday Express.” However, the assignment notice produced as part of their witness statement (and not previously supplied to the Defendant as per their CPR request in September 2017) shows a letter from Payday UK and not Payday Express.

 

18. Furthermore, the Claimant’s witness statement shows a screen print of the information purporting to relate to the default notice. It is asserted that this does not provide evidence or assurance that this shows an accurate position on which to rely. This is especially relevant as the originating creditor is no longer in the business of providing payday loans, and has in the past needed to provide redress and pay compensation to customers who “may have suffered detriment as a result of the firm’s affordability checks, debt collection practices and systems errors”. Given this, the Defendant believes this screenshot cannot be relied upon as proof that the agreement was in default or that a default notice was ever issued.

 

19. The use of a standard “any company” default notice, produced as part of the Claimant’s witness statement is irrelevant to this claim.

 

20. The Claimant’s rebuttal of the Defendant’s defence bears little relevance. This suggests that individuals in a similar position to the Defendant should not seek any help in defending themselves against the claims of debt purchasing companies such as the Claimant. The Defendant also asserts that the Claimant and their solicitor rely on template letters and responses when corresponding with their alleged debtors.

 

 

 

Statement of Truth: I believe the facts stated within this Witness Statement to be true

 

I do believe I need to add some more and would appreciate some prompts on which areas I should be focusing on.

Thank you.

[fkofilee]

Hang fire...

[AndyOrch]

Yes thats fine ...there are no hard and fast rules with regards to drafting a witness statement...its simply a more particularised version of defence with the additions of what the claimant has disclosed and said since the claim was issued.

 

The main point is to describe in your own words as to why the claimants claim should be challenged and to rebut the claimants witness statement paragraph by paragraph...its your main form of evidence in support of your defence.

 

Yes its fine to use I instead of Defendant repetitively...on your point 19 are you referring to a template defence notice ?

[barafear799]

Point 15 refers to their template default notice which they included in their witness statement.

 

attached for reference.

 

Any advice for any more points to raise?

 

Is it worth arguing about their mistake in referring to the originating creditor as Payday Express, when it should have been Payday UK?

 

Also, is it worth mentioning the issues the company as a whole had with the way they treated customers?

 

Any further advice much appreciated.

 

In addition,

given that the loan agreement is the main document they will be relying on

- do I have a case to query the validity of it?

 

I don't want to be sounding like I am accusing them of making it up

- but given it's an online agreement there is no signature as such

- and simply because my name and address is enclosed (on the redacted bit)

- does this make it a valid document on which they can claim?

bwlegloanaggredact_redacted.pdf

[fkofilee]

The agreement is with PDUK not PDE...

Something to advise them off...

[barafear799]

Yes, I included that in no.17. However their original claim form did state PDUK.

 

So they may convince a judge it's a typo.

 

However, it is also representative of the way they work in bulk, and maybe use templates!!!

[dx100uk]

who does the NOA say they bought the debt from?

that's the only name they can use in their claim...

[AndyOrch]

Point 15 refers to their template default notice which they included in their witness statement.

 

 

Then write Template Blank Default Notice......not " The use of a standard “any company” default notice "

[barafear799]

who does the NOA say they bought the debt from?

that's the only name they can use in their claim...

NOA states PDUK. As did their original POC on court claim. It is this WS where they mention PDE

 

Then write Template Blank Default Notice......not " The use of a standard “any company” default notice "

 

Thank you. Will do. Any ideas for any arguments I may have missed?

[minionherder]

I've just defended a similar claim, they lost because of no proof of default or assignment being posted (no record or proof of posting) and also their default was a template for the money shop not PDUK.

 

Things to double check.

Is the daily interest doubled on any day in the statement of account. The maximum interest is I believe .8% per day if they have charged twice in one day then this would be 1.46% for that day and in breach of the FCA cap for PD loans.

 

https://www.fca.org.uk/news/press-releases/fca-confirms-price-cap-rules-payday-lenders

 

Secondly on their printout sheet showing default dates check the rate of interest is the same as the agreement, mine was different which would mean either their printout is incorrect and proves errors were made or that the agreement is incorrect and therefore is not a true copy.

[barafear799]

Yes, I had read your thread. Well done. I still think it's quite judge dependent. But your case does give me renewed hope.

[fkofilee]

I've just defended a similar claim, they lost because of no proof of default or assignment being posted (no record or proof of posting) and also their default was a template for the money shop not PDUK.

 

The maximum interest is I believe .8% per day if they have charged twice in one day then this would be 1.46% for that day and in breach of the FCA cap for PD loans.

 

https://www.fca.org.uk/news/press-releases/fca-confirms-price-cap-rules-payday-lenders

 

Secondly on their printout sheet showing default dates check the rate of interest is the same as the agreement, mine was different which would mean either their printout is incorrect and proves errors were made or that the agreement is incorrect and therefore is not a true copy.

 

Sounds like something I would say... Oh wait...

 

Bring to the attention of the judge that the statement contains all of this and all the calculations are incorrect etc

[fkofilee]

Based upon the statement - Here are some awesome calculations to be used in a WS that you can bring towards the attention of a judge.

 

If you had "borrowed" £800 then you would pay £5.84 per day in interest, however, you "Borrowed" £805.84. PDL Interest charged daily at 0.73 %

As the statement says you clearly "Borrowed" £805.84 - This would be Interest of £5.88 per day being charged.

 

This would also affect the interest on any payments made. As instead of £4.70, you would be charged £4.74 on your interest after the repayments that have been supposedly "made" as per there statement.

They have "stated" that Deposits of £800 and £5.84 were made to you. So the statement with its interest are incorrect and miscalculated and doesnt add up when applying the APRs

 

Here are some calc based upon "that" statement thats says you borrowed £805.84

 

 

£805.84 -- £5.88

£811.72 -- £5.88

£817.60 -- £5.88

£823.48 -- £5.88

£829.36 -- £5.88

£835.24 -- £5.88

£841.12 -- £5.88

£847.00 -- £5.88

£852.88 -- £5.88

£858.76 -- £5.88

£864.64 -- £5.88

£870.52 -- £5.88

£876.40 -- £5.88

£882.28 -- £5.88

£888.16 -- £5.88

£894.04 -- £5.88

£899.92 -- £5.88

£905.80 -- £5.88

£911.68 -- £5.88

£917.56 -- £5.88

£923.44 -- £5.88

£929.32 -- £5.88

£935.20 -- £5.88

£941.08 -- £5.88

£946.96 -- £5.88

£952.84 -- £5.88

£958.72 -- £5.88

£964.60 -- £5.88

£970.48 -- £5.88

£976.36 -- £5.88

£982.24 -- £5.88

£988.12 -- £5.88

£994.00 -- £5.88

£999.88 -- £5.88

£1,005.76 -- £5.88

£1,011.64 -- £5.88

£1,017.52 -- £5.88

£1,023.40 -- £5.88

£1,029.28 -- £5.88

£1,035.16 -- £5.88

 

 

The repayments would also be different... They would be higher....

 

Elementary maths my dear Watson...

[barafear799]

Thank you, Sherlock

[fkofilee]

Bara - Didnt you say you couldnt go to court to defend this as you wont be available?

[barafear799]

I stated I would be unavailable on DQ.

 

I should be able to make it.

 

I am still confused my DQ was ignored.

BW are sending an advocate

 

Does the fact that PDUK are no longer operating help me?

[fkofilee]

Hard to say... I think you need to go and defend this...

So please go to court...

[dx100uk]

using an advocate

which means a local bod of the court

which will have no idea whatsoever on parking claims and simply follow a script given to them

should be an easy walk over

[fkofilee]

You'd hope DX... This is a PDL claim though...

Am I guessing this is similar to how BW deal with their parking claims

[dx100uk]

opps..

[barafear799]

DX>

Is your comment still valid given its a PDL and not parking?

[fkofilee]

Yes barafear it is...

[barafear799]

Thanks.

Well WS sent off now.

 

I know it's late, but surely BW's lateness with everything to date so far should allow me some allowance.

 

Thanks guys for all your help.

 

Additional help before my hearing much appreciated.

 

Thanks