Lowell claiming - old Very CAT debt***Claim Dismissed with Costs***

[dx100uk]

it is NOT A DN!!

its a line from the comms log of the account notes stating one was sent I assume.

[shamrocker]

Whether or not the judge will accept what they have provided as a DN is critical to whether or not we have any chance if we get as far as a court date as far as I can see. I've been told more than once on this thread that the screenshot thing they've sent won't count. But I guess I won't know til I get there...

 

I will need to get this sent off tomorrow or Saturday latest so any further comments or suggested amendments are appreciated.

 

Thanks as always

 

As DX has pointed out, that's not proof of an actual DN. It might or it might not be evidence that one was issued. The next problem they have (although you need to create the problem for them) is that they can claim to have issued a DN, but they will also need to prove that it was CCA compliant. That's why they will need to provide a copy. However...and this is where I'm a bit hazy, without some refreshing - there usually isn't a copy of a DN retained by the creditor. They would then usually provide a template copy. See what they provide within their WS and go from there.

 

You said you're away for a while - how much time do you have between returning and the hearing?

[mollywobbles]

We go away tomorrow (13th), back the following Saturday (20th). Hearing is on the 29th. So we will have some time.

 

But surely I must send off my WS tomorrow latest in order to be with the court 14 days before (Mon 15th) and after that, what opportunity will I have to change / add anything?

[AndyOrch]

Will run through it shortly MW...bear with me.

 

 

Andy

[mollywobbles]

Thank you Andy.

[shamrocker]

We go away tomorrow (13th), back the following Saturday (20th). Hearing is on the 29th. So we will have some time.

 

But surely I must send off my WS tomorrow latest in order to be with the court 14 days before (Mon 15th) and after that, what opportunity will I have to change / add anything?

 

You can submit a supplemental witness statement up to 3 working says before the hearing. I appears to me that you have two main angles of attack - the DN and the balance. If you can loosely challenge these in your current WS, it gives you scope to strengthen your resistance in a supplemental WS which will largely be dictated by the content of their WS, which will probably be waiting for you when you get back. So...in this WS you're saying "you have no knowledge of the account being in default because the original claimant never sent a DN to me, and the claimant has not provided anything in my CPR request". No doubt they'll address the DN within their WS, but will likely be pretty scant with details. If so, you can then introduce s.87 of the CCA and outline how they are in breach. Let's see what they disclose though - it might be absolute rubbish with no need to respond further.

 

Andy will put you straight on what to include within your current WS though.

[AndyOrch]

IN THE ******* county courticon

Claim No. ***********

 

BETWEEN:

Claimant

Lowell Portfolio 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 this claim.

 

1.) 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 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 31st December 2017, I received a claims form from the County Court Business Centre, Northampton, for the amount of £2487.09. The claimant contends that the claim is for the sum of £2487.09 in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The Consumer Credit Act 1974 (CCA).

 

3.)The Claimants pleaded case is that the Defendant entered into an agreement with Shop Direct under account reference **********. I am uncertain as to which account this refers to. It is accepted that I have had financial dealings with Shop Direct in the past however I have no recollection of the alleged account number the claimant refers to.

 

4.) On the 2nd February 2018 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. An acknowledgement was received dated 12th February and a further response on 13th March, which enclosed a reconstituted copy of the agreement, screenshot of the default notice and notice of assignment. [EXHIBIT A].

 

5.). On the 2nd May 2018 I 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. A response was received dated 10th May, enclosing a) a reconstituted copy of the agreement, b) an alleged screenshot of the default notice, c) a copy of the letter of claim dated 31st December 2017, d) a copy of the alleged notice of assignment (again printed on plain paper) and an alleged shop direct group statement [EXHIBIT B].

 

6.) 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. In their various responses to the requests detailed above the claimant has produced what they describe as a ‘screenshot’ of the default notice, which is unrecognisable as such. 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.

 

7.) As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim is based and relies upon.

 

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.

 

8.) As of this date the Claimants have yet to file and serve a copy of their evidence and statement on which it claim relies upon.In the event that they fail to comply with the courts directions dated xxxxxxx it is respectfully requested that the court considers imposing sanctions or even strike out of the claimant cliam.

 

 

Statement of Truth

 

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

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

[mollywobbles]

Thank you Andy, I will get that prepared for sending tomorrow.

 

Is there guidance somewhere on how to present the other documents I've referred to?

[AndyOrch]

Simply attach them to the statement in run order

[mollywobbles]

I'm sure I have seen it advised on other threads to print out some kind of list of these, is this a good idea or unnecessary in my case?

[mollywobbles]

Another last minute question... on the claim form is 'amount claimed' and also 'total amount'. Which figure(s) should be at point 2?

[AndyOrch]

You can do an index cover sheet with the exhibits listed but its not really necessary for small claims track which is less formal than Fast Track.

 

At 2 it should be the full total including court fees and sol fees.

 

Andy

[mollywobbles]

Thanks Andy, that explains things. I was panicking a little thinking I'd somehow missed something important...

 

Sorry for all the nitpicking questions, but if you could confirm... at 2, it should read:

 

'2.) On or around the 31st December 2017, I received a claims form from the county court Business Centre, Northampton, for the amount of £2871.06. The claimant contends that the claim is for the sum of £2686.06 in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The consumer credit Act 1974 (CCA).'

 

i.e. first is total amount inc. costs etc and second is 'amount claimed'? OR total amount in both places?

 

I'm sure this information is somewhere, I have been trying to check other threads but I've seen it both ways. I'm just anxious to get it right. Thanks for all your help Andy & everyone else who's read and assisted.

[AndyOrch]

First should be the full total the second just the debt amount (Net)

[mollywobbles]

Great. Thank you. I am getting it all together tonight. Will post off tomorrow.

 

Having looked at the notice of trial date again, it says the hearing fee must be paid by 17th October 4pm. Is it worth my calling up thereafter to see if Lowell have done so? Am I being a ridiculous optimist in hoping they might just not bother??

[AndyOrch]

Absolutely....I always advise same.....if they have not and there is no sign of a statement from them it usually indicates that they are getting ready to discontinue.

[mollywobbles]

Well we are back from our trip and the witness statement from Lowell was waiting for us. Postmarked 18/10, so probably only arrived yesterday. Should have been with us on Monday.

 

I have not yet called to see if they've paid the hearing fee. Is it still worth my doing this?

 

They have stated in the WS that they do not have an original copy of the default notice sent. Here is the relevant paragraph:

 

"Paragraph 2 of the Defendant's Defence is noted. The Claimant can confirm it does not have an original copy of the Default Notice issued to the Defendant however, it has a screen shot of the Assignor's computerised system that shows the Default Notice being sent to the defendant and, on the balance of probabilities, the Claimant believes that this is sufficient proof to confirm that this documents was in fact sent" (grammar errors not mine)

 

They go on to state:

 

"A default was registered against the Defendant's Credit file upon expiry of the Default Notice, this date is clearly shown on the Defendant Statement that is exhibited above at CH3."

 

In terms of their evidence, they've produced nothing that we haven't seen before. We sent them copies of the same as part of our WS last week.

 

Any thoughts or advice?

I don't know if they would still accept our acceptance of the Tomlin Order at this point, if we decided to go down that road?

It was for £2000.

Total they're claiming for now stands at a little over £3000 plus their travel costs.

We're a week away from the court date tomorrow.

If it's worth me scanning up the rest of their WS for your inspection, let me know and I'll do so.

Edited October 21, 2018 by dx100uk
spacing

[dx100uk]

yes please

one multipage PDF only...

 

dx

[AndyOrch]

I have not yet called to see if they've paid the hearing fee. Is it still worth my doing this?

 

Absolutely

[mollywobbles]

Here is Lowell's WS as a PDF. I think I've redacted everything identifying, apologies if I've missed something.

 

Your thoughts would be much appreciated.

 

Will call up and check re. hearing fee tomorrow.

Lowell Witness Statement .pdf

[AndyOrch]

Same old same old as per every other shop direct witness statement...everything reconstituted and with regards to point 17 on the balance of probabilities does not cut it...they cant prove a default notice was served....a screen shot of the default is not evidence one was served pursuent to sec87(1) CCA 1974

[mollywobbles]

Thanks Andy.

 

So what do you advise? They left it so late to send their WS obviously I was not able to make those points in mine. Do you think I should prepare a supplementary one? Or if not, how do I prepare for the court date?

[dx100uk]

ive hidden that for you as you've used a PDF editor to hide stuff

it can be removed using a pdf editor

 

we also need to see the exhibits please

 

might be better to redact the .jpg flies in a picture editor program first [like MSpaint] THEN convert and merge to one pdf.

[AndyOrch]

Hardly worth it really for the few points and you may come across as being repetitive..which is not what a SWP is suppose to be used for.You prepare now by drafting a skeleton argument with bullet points for your main contentions and obviously include what I have stated in your points.

 

Look up Skeleton Argument..so your aware of the form and layout and contents......prepare 3 copies and file/serve not less than 3 days pre hearing.

 

 

Andy

[mollywobbles]

Thanks again Andy & Dx..

 

I've read a very encouraging thread this morning detailing what seems like a very similar case (here: https://www.consumeractiongroup.co.uk/forum/showthread.php?473527-Lowell-claim-form-old-cat-debt***Claim-Dismissed***/page3 in case anyone is interested). Feeling encouraged...

 

Have managed to get through and found out that they have paid the fee.

 

However I am conscious that the clock is well and truly ticking.

Hearing date is Mon 29th.

 

Surely that means I need to get my skeleton argument to them by tomorrow?

There's no way I can get it done for the post today.

I will have to deliver in person myself tomorrow, which fortunately I can do, if that is even possible?

 

I've started researching / writing.

Will you be able to look over it for me once I post it up this evening?

Edited October 23, 2018 by dx100uk
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