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Hi everyone, hoping to find some urgent last minute help in this wonderful community :)

 

Name of the Claimant ?

Lowell Portfolio

 

Date of issue – top right hand corner of the claim form – this in order to establish the time line you need to adhere to.

03/10/2016

 

Date of issue XX + 19 days ( 5 day for service + 14 days to acknowledge) = XX + 14 days to submit defence = XX (33 days in total) -

 

^^^^^ NOTE : WHEN CALCULATING THE TIMELINE - PLEASE REMEMBER THAT THE DATE ON THE CLAIMFORM IS ONE IN THE COUNT [example: Issue date 01.03.2014 + 19 days (5 days for service + 14 days to acknowledge) = 19.03.2014 + 14 days to submit defence = 02.04.2014] = 33 days in total

 

What is the claim for – the reason they have issued the claim? Please type out their particulars of claim in full (verbatim) less any identifiable data and round the amounts up/down.

Unfortunately I have now lost that document as have moved house twice since receiving their claim... have attached the defence I sent and the claimant's witness statement

 

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ?

No

 

What is the value of the claim?

£938.19

 

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

Vanquis credit card

 

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

After (05/08/2010)

 

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.

Debt purchaser

 

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?

I lost a job at the time and couldn't make monthly payments

 

What was the date of your last payment?

30/12/2011

 

Was there a dispute with the original creditor that remains unresolved?

No

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management planicon?

No

 

------------------------

 

Hello everyone,

 

Only just joined the community, but have been carefully following few threads to help with my personnal situation.

 

So far it has been a priceless source of information and I hope to seek further help!

 

I have my court hearing this coming Tuesday at 10am - here is a timeline of events:

 

- Vanquis Agreement dated 05/08/2010

- Last payment made to Vanquis on 30/12/2011

- Notice of debt received by email from BW Legal/Lowell on 13/09/2016

- Letter with CCA request sent on 28/09/2016 - which was ignored

- Claim issued by Lowell on 03/10/2016

- CPR18 request sent on 25/10/2016 - again, ignored

- Defense sent on 05/11/2016 (copy of my defense attached in the thread)

A year gone and never received the documents I asked in order to prepare defence of enter into mediation

- DQ filed by claimant on 20/11/2017

- Sent another CPR18 request on 24/11/2017 - yet again ignored

- Direction Questionnaire filed on 30/11/2017

 

Which brings us to present days, and the witness statement receive from the claimant only 2 weeks before the hearing (attached to the thread) - while I have been requesting information since November 2016 !

 

With the hearing happening in 3 days, I'm getting exponentially nervous about what's going to happen - and how I should prepare to defend myself.

 

I misunderstood the notice of allocation for the hearing and didn't send a witness statement myself... is there something I should do/say at the hearing?

 

Can someone kindly advise on the best course of action for me to get in the hearing with a bit more confidence? I'd like to avoid a CCJ at all cost and just want to settle the debt - but have missed the oppotunities to do so as they failed to send the documents I requested

 

A few questions I have after reading the witness statement several times:

 

- I never received the Notice of Assignment. Statement says "defendant put to strict proof to the contrary" - clearly, shouldn't these kind of documents be sent registered and/or signed for? My gut instinct is to say they should be the one proving they served me with the notice of assignment (their responsibility, isn't it?)

 

- With my CPR requests, I have sent deadline for them to collect and send the requested documents - none were respected. I literally had to wait almost a year and half and the witness statement (just a few weeks before the hearing) to get any sort of documents from them. Is that a point for me to use in my defence?

 

As I've been chasing documents for a while in order to prepare my defence, ignoring my requests and sending these at the last minute should play in my favour?

 

Many many thanks in advance for any help that the community could provide me with I will make sure to keep everyone updated.

BW Witness Statement.pdf

BW Defence.pdf

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So in a nutshell

For some strange reason you used CPR 18

Without reading your directions you didn't think you had to do a WS as you thought they had to provide docs first...

 

Oh well anyway...

 

Your saving grace is there as no default notice which is fatal to their claim


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Best option is for you to draft a witness statement in response and in support of your defence over this weekend...you may be too late to submit it now or whether the court will allow it...but you will have something to work off verbally at the hearing.

 

 

Andy


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Thanks for the feedbacks!

 

I will plan my witness statement right away.

 

dx100uk - "Your saving grace is there as no default notice which is fatal to their claim", should this be the main argument in my defence? As in I should insist on the fact that I never received the default notice and that they have no way of proving I received it as it wasn't sent registered/signed for? The only supporting document is a copy of the supposed notice they say they sent...

 

Trying to see what is my best "weapon" for the hearing...

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DN do not have to be sent recorded nor signed for

but they will have to PRODUCE it to win this case

 

use the search cag box of the red toolbar

 

witness statement no default notice


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They're on really dodgy ground with this.

 

Nowhere do they mention that you defaulted on the agreement or that a DN was even issued.

It's a blatant fob-off.

Therefore, they are not entitled to collect any amounts allegedly owing.

 

Read up on section 87 of the CCA.

Don't refer to the DN not being sent Signed For - simply state that you did not receive one.

 

Then refer to their WS in support of this, as they seem to suggest that the lack of one should not be fatal to their claim

- which would be contrary to the intentions of Parliament and numerous well known authorities related to the need for a compliant Default Notice to be issued.

 

There's plenty of scope for you to create a strong argument on this one point.

 

You'll need to quote s87...also I'll look for some relevant case law that you can use extracts from this evening for you.

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Thanks shamrocker - that's really helpful!

 

I have just read the section 87. Is that one I should use to base my argument around them not providing me with the default notice, therefore they are not entitled to claim what they are saying? What should I ask specifically?

Any tips on how I should angle/phrase this would be much appreciated.

Have you had any chance finding some relevant cases I could use?

 

@fkofilee - the document they sent is in PDF format so I had to convert to Word in other to hide my personal details (coudn't edit a pdf file). I believe the typos and bad formatting are due to this... Is there another way I could share this safely?

 

One question about the hearing itself - will the judge ask questions directly or I will have to make a statement at the beginning of the hearing? A bit nervous about how it will happen on the day as I have never stepped foot in court...

 

Thanks for all this help - bringing me some much needed confidence :)

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convert the agreement and T&C's to JPG

redact using MS Paint

then re PDF

 

read upload ..


PLEASE DONT HIT QUOTE IF THE LAST POST IS THE ONE YOU ARE REPLYING TOO.

MAKES A THREAD TWICE AS LONG TO SCROLL THROUGH!

please do not post jpg images directly to a topic..USE PDF ....READ UPLOAD.

 

WE CAN'T GIVE ADVICE BY PM - IF YOU SEND ME A LINK TO YOUR THREAD - I WILL BE HAPPY TO OFFER HELP THERE

Single Premium PPI Q&A Read Here

Reclaim mis-sold PPI Read Here

Reclaim Bank Account, Loan & Credit Card Charges Read Here

The CAG Interest Tutorial Read Here

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Thanks - will try to do that now.

 

Bouncing on shamrocker's point, in their WS they say:

 

36. The Claimant is a debt purchaser and can experience difficulties in obtaining documentation which have since been archived.

37. Notwithstanding the above the Claimant believes that the non-production of the Default Notice is not fatal to its case, where the supporting documents unequivocally demonstrate the extent of the Defendant's liability under the Agreement.

 

Should this be the key thing I rely on to my defence? As they haven't shown a copy of the Default Notice (and even say that they don't have it as it's been archived???? which doesn't make sense as they can surely access said archive?) and can't prove there has been one, their clam is not valid and that I request that the Claimant's defence be struck out and judgement entered against the Claimant?

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I think the content in s87 is sufficient in itself to support your point - it's all there in B&W. The case law refers more to the compliance of DNs, so not much use really.

 

In simple terms - you haven't received a DN and the Claimant makes no mention of one being served. Therefore, your assertion is that one was not issued. S87 of the CCA then becomes relevant to your argument., particularly the consequences for failure to comply.

 

Support your points by referring to p.9 and p.10 of their WS, which states that they consider you to have agreed to be legally bound by the terms of the CCA 1974, of which s87 is an important one.

 

p.36 about them being a debt purchaser and having difficulties - they were assigned all rights and benefits of the agreement, and so too the responsibilities of compliance with the terms of the CCA. Like you say, if certain documents were archived, then why can't they access them now? In any event, they should satisfy themselves that these basic requirements have been met before acquiring debt, and certainly prior to issuing a claim.

 

To allow the claim to succeed would be contrary to the wishes of Parliament and would also represent a denial of the consumer rights given to you under s.87 of the act - not least the right to remedy any alleged breach before a creditor can become entitled to end the agreement and begin collection of any monies owed.

 

Bear in mind that, from what I can remember, exact copies of a DN are not usually available - but will often reproduce a template copy. They would also generally provide a copy of their communications log, showing a record of the DN being sent to you. Personally, I wouldn't go mentioning that unless the discussion seemed to be swinging in their favour - you could then maybe mention that the Claimant has made no effort to evidence the serving of a DN by way of a template copy or comms log entries. This is despite the fact that you have made a CPR request for this evidence.

 

Where are the statements they refer to in their WS?

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Thanks guys (and shamrocker for the priceless info).

 

shamrocker - these might be the statements of the Vanquis cards to show that I indeed use the card and the credit allowance (obviously I did). I have removed them from the edited WS I sent as assumed this was personal info I shouldn't be sharing online? It simply shows the transactions made with the Vanquis card over the course of a year.

 

One last point: if the judgement ends up against me, I am fortunate enough to be in a position to settle what they claimed (as long as it's in a reasonable payment plan of say 5/6 instalments).

My main concern about this situation is to have a CCJ on my record as I will soon be applying for a mortgage. Reading more about CCJs, I found the below on moneyadviceservice.co.uk:

 

How a CCJ affects your credit record

Unless you pay off a CCJ in full within 30 days of receiving the judgment, it will be entered on your credit record at the Register of Judgments, Orders and Fines. It’ll remain there for six years.

 

Does this mean that if I am able to pay off what I allegedly owe them within 30 days of receiving the judgement, the CCJ won't appear on my credit record or any record for me? i.e. my credit file won't be affected at all?

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You'll have 28 days to pay the judgement sum, thus avoid the CCJ appearing on your credit file.

 

Does the statement show any £12 default charges? How long between your last payment/transaction an termination of the agreement?

 

You really should draft up a sort of witness statement/skeleton argument for this now. Could you have a go at it today an post it up for feedback?

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One last point: if the judgement ends up against me, I am fortunate enough to be in a position to settle what they claimed (as long as it's in a reasonable payment plan of say 5/6 instalments).

My main concern about this situation is to have a CCJ on my record as I will soon be applying for a mortgage. Reading more about CCJs, I found the below on moneyadviceservice.co.uk:

 

How a CCJ affects your credit record

Unless you pay off a CCJ in full within 30 days of receiving the judgment, it will be entered on your credit record at the Register of Judgments, Orders and Fines. It’ll remain there for six years.

 

Does this mean that if I am able to pay off what I allegedly owe them within 30 days of receiving the judgement, the CCJ won't appear on my credit record or any record for me? i.e. my credit file won't be affected at all?

 

If your 5/6 payments take longer than 28 days, then the CCJ goes onto the register, and will likely appear on a credit record.

 

So, you are facing a cleft stick. If your main objective is to avoid anything appearing on a credit record and you can't settle it within 28 days if you lose, you might want to offer them a Tomlin Order of paying it over the 6 payments. That way (even though it may stick in your craw to do so) you are GUARANTEED you don't get a CCJ showing on your credit record. They'd likely agree, knowing that they get a guaranteed win, and the issue of the DN means they face the risk of losing if it goes to trial.

 

Yet, you have a strong case if they can't show a valid DN was served. There is always the element of 'judicial lottery' though.

The best case scenario is if you could settle it within 28 days if you lost ; then you could let it go to trial, and it is them who are taking the risk that they lose!.

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BazzaS makes some fair points there. I would add, if you did consider a TO proposal, I would be looking to agree a nice reduction based on your position being very strong regards the lack of DN. They'll be well aware that you have a strong hand - and more importantly, that you know it too.

 

Personally, the fact they've disclosed so close to the hearing tells me they know the lack of DN will likely scupper them - if you're informed enough to spot it and contest it properly.

 

It's a pity the hearing is so close, as you haven't got much thinking time.

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Thanks - will draft a skeleton before lunch and will do my best to have a WS drafted this evening at latest (i'm in meetings most of today at work... bad timing).

 

About the TO - should I keep this as a backup in case the judge is about to make them win? Or it is something I should mention in my skeleton right from the start, sort of "in case my argument that they didn't provide DN falls through, I'd like to offer a TO" ?

 

As for the reduction, do I need to come up with a number or it has to be precisely calculated? I'm yet to receive an actual statement/breakdown detailing why I owe the alleged sum.

 

Re "Does the statement show any £12 default charges? How long between your last payment/transaction an termination of the agreement?": it does indeed, about once a month from after making my last repayment on 30/12/2011. Does this matter?

 

Will edit the WS with the statements bits and send over ASAP.

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Thanks - will draft a skeleton before lunch and will do my best to have a WS drafted this evening at latest (i'm in meetings most of today at work... bad timing).

 

About the TO - should I keep this as a backup in case the judge is about to make them win? Or it is something I should mention in my skeleton right from the start, sort of "in case my argument that they didn't provide DN falls through, I'd like to offer a TO" ?

 

 

No, the TO is as an alternative to the court's judgment. You shouldn't mention it in a WS, and if you only offer it as they are about to win, they'll ignore the offer.

You need to offer it as an alternative to them risking losing. That can be "on the courtroom steps", but the earlier, the better, IF you decide to go down the T.O. route, if

a) "nothing on my credit report" is your key aim, AND

b) you couldn't settle any judgment within 28 days, (as that'd be a different way to avoid anything on your credit report).

If you can come up with the judgment sum within 28 days IF you lose, the TO route may not be your best option.

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Without seeing the statement(s), it's difficult to give an opinion if they offering interesting or useful. Feel free to post them up - just remove any personal details, account numbers, barcodes, etc.

 

No, a TO offer would ideally be made prior to the hearing...today, for example, or with their representative outside the court room. The only other circumstance I can think of, would be if the discussions in the room seem finely poised, then you could request that you are given a minute in private to discuss a proposal which may allow an agreement to be reached.

 

Personally, I'd be focusing on laying it on strong on why there is no legal basis for them to issue a claim without a valid DN being served. I think you can win if you angle it correctly, but time is not really on your side, and you've also not complied with the court's directions - but neither have they (I'd make sure to play on this too, as a reason for you not serving your own WS).

 

Draft something up this evening and let us see it.

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Sorry, Bazza beat me to it...

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I should also add that that fact you've not served a WS on the Claimant probably gives them the impression that you don't know what you're doing with this. Therefore, it may be more difficult to get them to bend without first showing your hand. You'd need to convince them first that you will be challenging the lack of DN and non-compliance with s.87 at the hearing. It's all about using whatever leverage you've got at your disposal for maximum gain.

 

I still think you have a better than good chance of winning the case though. Not having a DN or any mention of one is pretty persuasive and s.87 is there to base your arguments on.

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thanks again (and again) shamrocker :)

 

Re: "I think you can win if you angle it correctly, but time is not really on your side, and you've also not complied with the court's directions - but neither have they (I'd make sure to play on this too, as a reason for you not serving your own WS)."

 

Should I start my speech with this in court? When you say they have not complied with the court's directions, is it because I haven't received it to the post but only found it in my spam folder less than a week before the hearing?

 

This is the key point I'm worried about - what to stay when I step in the court to present my WS/Skeleton and/or explain why I didn't send it prior to the hearing.

 

Below is the first draft for my WS - have copied/pasted some of the info seen in this thread and used template from another thread on CAG. Can you let me know your thoughts? Should it be longer? Or actually shorter?

 

As you said, my thinking time is now limited ahead of the hearing so thought I should just focus on the one point that plays in my favor (and a big one).

 

Still terribly nervous about "the unknown" tomorrow. As in what they can say to counter my argument and how I will be able to react to this...

 

1. I am the Defendant in this action.

2. As the Claimant has not produced the Default Notice, my evidence is limited to my submissions on the legal position which I maintain exists between myself and the Claimant.

3. On 28/09/2016 requested relevant information from the Claimant’s Solicitor under CPR rules – including the Default Notice. To date the Claimant has failed to respond to those requests and acknowledged, in their Witness Statement, that they failed to provide a copy of the Default Notice.

4. The Claimant has not provided the Default Notice necessary to maintain this action against me and thereof this action must fail.

 

The Need for a Default notice

 

5. On p.9 and p.10 of its Witness Statement, the Claimant state that they consider me to have agreed to be legally bound by the terms of the CCA 1974.

 

6. The claimant was assigned all rights and benefits of the agreement from the original Creditor, and so too the responsibilities of compliance with the terms of the CCA.

 

7.The Claimant has not pleaded or disclosed any default notice. The claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement. The only inference that can be drawn from this failure is that none was served.

 

8. On p.37 of its Witness Statement, the claimant believes that the non-production of the Default Notice is not fatal to its case. This is contrary to the intentions of Parliament related to the need for a compliant Default Notice to be issued. Failure to serve a default notice is an unlawful rescission of contract, which would not only prevent the Court enforcing any alleged debt, but also allow a claim for damages.

 

9. To allow the claim to succeed would be contrary to the wishes of Parliament and would also represent a denial of the consumer rights given to me under s.87 of the act.

 

Conclusion

 

10. For the avoidance of doubt, I deny that I am liable to the Claimant in any manner and I further denied that the Claimant is entitled to the sum claimed or any other relief.

 

11. In the circumstances I respectfully request that the Court makes an order:

 

1. That the claim against me be struck out

2. That the failure to That the Agreement relied upon is irrevocably unenforceable;

3. That the Claimant remove any and all credit reference data arising from the unenforceable debt.

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it going to your spam folder is not their problem..

what date is the email...


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What date must both parties file and served their statement and evidence by ?


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Their email is from 13th April - so more than 14 days before the hearing...

 

Also they say the hearing has been allocated for 2 hours. Is it me or this sounds like a lot of time considering the case? Honestly, don't know what I'll be able to stay if it lasts that long... besides the Default Notice argument, I'm neither skilled enough or prepared enough to keep talking for an extended amount of time (entirely my fault on this obviously).

 

I've managed to upload their statements while hiding personal info - attached to this post.

 

Statement page 4.jpg

Statement page 3.jpg

Statement page 2.jpg

Statement page 1.jpg

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Andyorch, it was no later than 14 days before the hearing so by 16th April.

 

Re evidence - is there anything that I should bring tomorrow? Ultimately it feels like I'm asking THEM to bring evidence they served a default notice - while they say in their WS they don't have it and that for them it's not fatal to their case... which apparently it is!

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