lowell/BW claimform - old vanquis debt

[AndyOrch]

Skeleton Argument

IN THE xxxxxxxx County Court

BETWEEN:

 

Claimant

and

xxxxxxxx

Defendant

 

DEFENDANT’S SKELETON ARGUMENT.

 

1. I am the defendant in the claim and I make the following points in absence to not submitting a witness statement and not complying with the District Judge XXXXXXX directions dated xxxxxxx.

 

I apologise profusely being litigant in person and not understanding the process as outlined in the Notice of Allocation and request the courts permission to rely on this skeleton argument and the points contained herewith:

 

2. In response to the Claimant's Witness Statement:

 

I requested relevant information from the Claimant under CPR rules on 26th October 2016, in particular, to get proof of a Default Notice and full disclosure on which the claimants claim relies upon.

 

To date, I have not received the requested information

 

3. In the Claimants Witness Statement (p.36), the Claimant states not having proof of a Default Notice or that one was ever sent and (p.37), the Claimant believes that the non-production of the Default Notice is not fatal to its case

 

Under section 87(1) of The Consumer Credit Act 1974 the Claimant must serve a default notice before they can demand payment under a regulated Credit Agreement 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.

 

The claimant has not provided the Default Notice necessary to maintain this action against me and thereof this action must fail as it represents a denial of the consumer rights given to me under s.87 of the act.

 

The claimant refers to termination of the agreement at point 42.3 yet makes no reference at all to when and if a valid Default Notice was ever served nor can they evidence or disclose any paper trail that it was ever served.....and yet goes into great detail re Assignment of Debt...over 8 paragraphs of the statement afforded to this subject.

It can only be adduced that the Originating Creditor never served said Notice on which is pivotal to the claimant claim.

 

I the defendant will rely and refer to Woodchester v Swayne [1998] which demonstrates the importance of serving an effective default notice before taking 'the next step'. If financial institutions persist in treating the service of (and the evidence of the service of) default notices with contempt for debtors which in effect is allowing the creditor to overcome the protection afforded the consumer by sections 87 and 88 would be tantamount to permitting the creditor to circumvent the primary intention of the Act.

 

Furthermore the claimant has not provided full disclosure of the sum claimed

 

The claim should be dismissed as the claimant cant prove a valid Default Notice was ever served

 

Finally, in addition to seeking the dismissal of the claim defendant seeks costs .

 

Dated this 30th day of April 2018

[spelluk]

Ha - I do have it as I sent it registered signed for. Have been spending the last few days looking for it in my papers... but it's been challenging as I put it somewhere more than a year ago and moved house twice since then. Hoping to put my hand on it before I leave tomorrow.

 

If I am being asked for proof, couldn't I just use the same argument, that they used about the request Notice of Assignment? As in I have requested it through my CPR, they said they sent it but "the Defendant is put to strict proof of the contrary"? Unless this is irrelevant, or I'm responsible to prove it for it to be valid?

 

As they sort of answer to the CPR request (except for the DN) in the WS, it's not like they said that I never sent it? As they actually answer to most of the request in the WS.

[shamrocker]

Ideally, you ought to have covered the receipt of your CPR in your WS - it would have been nice to challenge the "alleged" CPR request with solid evidence of them receiving it. It would speak volumes about their approach to this.

 

It might be worth bringing with you, but unlikely to be of any use.

 

Your "statement" above sounds too formal. A skeleton just summarises the main points in support of your defence. You've not disclosed anything, so you'll primarily focus on that they have disclosed....or haven't disclosed, should that be the case.

 

You'll not have much opportunity to say a lot. Just make sure you emphasise the following points:

 

- The account in question is subject to a regulated agreement - CCA 1974

- You did not receive a DN and have no knowledge of the account being defaulted. (It's up to you whether you say you had a dispute with Vanquis over the £12 penalty charges and ID Protection fees)

- The Claimant makes no mention nor provides evidence of the account being defaulted.

- The Claimant makes no mention nor provides evidence of a Default Notice being served.

- s.87 of the CCA states that a creditor shall not be entitled to terminate the agreement or commence collection of monies owed due to a breach unless a valid DN has been served. Take some copies of s.87 with you and tell the Judge you have it is he/she needs to see it.

- The Claimant provides no evidence of the account balance, so the Court has no means of validating the amount claimed.

- For the above reasons, the Claim is fatally flawed and, therefore, unequivocally denied.

[spelluk]

Oh my, this is fantastic Andy. Invaluable.

 

Everything is clear and much better written than my thoughts Have gone through it a few times, going to email it right away to the claimant even though we are technically the 1st. But considering how late I am already, that'll have to do...

 

My only question is re the final point where I seek cost - what does that entail exactly?

 

Thanks again to everyone who helped, can go to sleep in a more relaxed mood

[shamrocker]

Sorry, I completely missed Andy's post above. That's pretty compelling. Sleep easy, and good luck!

 

Due to their unreasonable conduct in pursuing you, and the fact you win, you can claim for Litigant in Person costs.... type it out in the morning and give it to the judge if/when you win. Try for 5x hours at £19 per hour (LIP rate), plus a days pay, plus any travel and parking costs. The judge may or may not agree.

 

Hopefully Andy can advise before you set off in the morning.

[AndyOrch]

Best I could offer in the time permitted.....lets hope its accepted...and if not you can still refer to it verbally.

 

It may be prudent to run a copy/s of Woodchester v Swayne [1998] and familiarise yourself if you get chance...although its basically case law that confirms all your above points.

 

Hopefully the Judge will be up to speed but you will be surprised of some and their lack of knowledge re Consumer Law.

 

Costs will be minimal as its Small Claims Track...but your out of pocket costs ...possible loss of earnings etc etc ...should be recompensed.

 

 

Best of Luck

 

Andy

[spelluk]

Thanks both! Shall I type up the costs I'd eventually ask in a specific way? Or just itemised costs and the maths will do?

 

Is there somewhere I could find the Woodchester v Swayne case? Can't seem to find it via a search...

 

No worries if not, I feel like this might add to my unpreparedness despite it being of value to my defence.

 

Keep you posted tomorrow

[jon8214]

Good luck today

[fkofilee]

Agree - Good Luck!

[spelluk]

Unfortunately, I lost

 

However, the DJ didn't give a CCJ but instead ordered that pay sum due in 3 installments to Lowell.

Failure to do so will result in the claimant being entitled to bring judgement...

 

I'm back at work so not much time to go into details (will do so when I'm back home tonight), but in a nusthell:

 

- Judge was very nice and accomodating. Accepted my Skeleton argument and well aware that I was "skilled" when it came to law

 

- On the s.87 CCA point - alas he said he didn't not apply to this case as the claiment was not demanding earlier payment of any sum (s.87 (1)(b))

 

- So despite acknowledging that my defence was "strong" and "fair", it didn't apply in my case... can anyone confirm this?

 

- He asked me if I agreed that I entered into an agreement with Vanquis, I said yes (as didn't feel confortable lying).

 

- Disputed the "ID Protection" £6 they have been adding monthly - he waved this from the balance

 

- But added the court interestes (8%) for a period of 52 months (between the assignement of the debt up until their claim) + some court fees

 

- He said I was a "reasonable chap and it would be unfair to bring judgement on me" despite the claimant saying I was unreasonable

 

- ASked if I'd agree to pay the sum.

Said I would be willing to pay the debt in instalments.

He imposed 3 of them on the 8th of each month starting in May.

This is more than I expected so will have to find a way to make those 3 big installments in time

 

- Failure to pay in time will entitle the claimant to bring judgement

 

Overall the DJ said I made a good case but unfortunately not applicable to this claim.

Funny thing was that the Solicitor was really lost and struggling to counter my argument about the lack of Default Notice and CCJ, but it didn't go further than that

 

Have a few questions:

 

- Will I receive a summary of what was ordered by the judge?

 

- Is not now totally up to me to pay in time and to Lowell to confirm they have received the installments?

 

- Not that I intend to, but what will happen if I can't make a payment in time?

Will the CCJ be confirmed?

Will I still have the opportunity to appeal (if I have a strong case to do so)?

 

- Is there any way I can discuss with Lowell further and ask to reduce the installments so I can pay in 5 times rather than 3?

 

- can contest all the interests added over the course of 4 years and 4 months since they got assigned the debt?? This is an awful lot...

 

Any advice on next steps or comments on the result would be greatly appreciated

 

Overall, I think it's not THAT bad of a result (ovbiously hoped to win)

- I'm just trying to make it less of a weigh on my finances so I can pay with a bit more time (as in only 2 months extra).

 

Thanks again to everyone but shamrocker and Andy specifically for all the last minute help

[AndyOrch]

I would regard it as a small victory...they didnt get their Judgment

 

 

- Judge was very nice and accomodating. Accepted my Skeleton argument and well aware that I was "skilled" when it came to law

- On the s.87 CCA point - alas he said he didn't not apply to this case as the claiment was not demanding earlier payment of any sum (s.87 (1)(b)

 

But section 87.1 (a) applies

 

- So despite acknowledging that my defense was "strong" and "fair", it didn't apply in my case... can anyone confirm this? Was your defence posted to this thread?

- He asked me if I agreed that I entered into an agreement with Vanquis, I said yes (as didn't feel confortable lying).

- Disputed the "ID Protection" £6 they have been adding monthly - he waved this from the balance Good

- But added the court interestes (8%) for a period of 52 months (between the assignement of the debt up until their claim) + some court fees Section 69 Interest is normally restricted to 12 months..pity you didnt ask why the DCA had taken 52 months to decide to litigate ? Im sure it wasn't to allow the 8% to build up:!:

- He said I was a "reasonable chap and it would be unfair to bring judgement on me" despite the claiment saying I was unreasonable

- ASked if I'd agree to pay the sum. Said I would be willing to pay the debt in installments. He imposed 3 of them on the 8th of each month starting in May. This is more than I expected so will have to find a way to make those 3 big installments in time.You should have said it will be a struggle and subject to your I&E £ xxx over 5 months would be more affordable and manageable without risk of defaulting

- Failure to pay in time will entitle the claimant to bring judgement...Would having a CCJ be a problem ? Would making those set payment be unrealistic ?

 

 

- Will I receive a summary of what was ordered by the judge? You should but he already confirmed the amounts and dates

- Is not now totally up to me to pay in time and to Lowell to confirm they have received the installments? Correct

- Not that I intend to, but what will happen if I can't make a payment in time? Will the CCJ be confirmed? Yes Will I still have the opportunity to appeal (if I have a strong case to do so)? I wouldnt

- Is there any way I can discuss with Lowell further and ask to reduce the installments so I can pay in 5 times rather than 3? Ring them and ask

- Any way I can contest all the interests added over the course of 4 years and 4 months since they got assigned the debt?? This is an awful lot... See above...you missed your chance

 

Regards

 

Andy

[spelluk]

I would regard it as a small victory...they didnt get their Judgment

 

 

- Judge was very nice and accomodating. Accepted my Skeleton argument and well aware that I was "skilled" when it came to law 

- On the s.87 CCA point - alas he said he didn't not apply to this case as the claiment was not demanding earlier payment of any sum (s.87 (1)(b)

 

But section 87.1 (a) applies

 

- So despite acknowledging that my defense was "strong" and "fair", it didn't apply in my case... can anyone confirm this?

Was your defence posted to this thread?

It is in my original post - should have used the word "skeleton" here, as this is what he was refering too (lack of default notice etc.)

 

- He asked me if I agreed that I entered into an agreement with Vanquis, I said yes (as didn't feel confortable lying).

- Disputed the "ID Protection" £6 they have been adding monthly - he waved this from the balance Good

 

- But added the court interestes (8%) for a period of 52 months (between the assignement of the debt up until their claim) + some court fees Section 69 Interest is normally restricted to 12 months..pity you didnt ask why the DCA had taken 52 months to decide to litigate ? Im sure it wasn't to allow the 8% to build up:!:

I take that it is too late now for me to contest this?

 

- He said I was a "reasonable chap and it would be unfair to bring judgement on me" despite the claiment saying I was unreasonable

- ASked if I'd agree to pay the sum. Said I would be willing to pay the debt in installments. He imposed 3 of them on the 8th of each month starting in May. This is more than I expected so will have to find a way to make those 3 big installments in time.

 

 

You should have said it will be a struggle and subject to your I&E £ xxx over 5 months would be more affordable and manageable without risk of defaulting

 

- Failure to pay in time will entitle the claimant to bring judgement.

..Would having a CCJ be a problem ?

Would making those set payment be unrealistic ?

 

 

It would be at some point in the future as I'm soon going to start looking for a morgage (not this year though).

Will a CCJ definitely prevent me from getting one?

Not unrealistic but will be very difficult as I will be left with almost nothing once my rent and expenses have been deducted from my salary..

. 6 installments would be more realistic and ensure I don't default

 

- Will I receive a summary of what was ordered by the judge? You should but he already confirmed the amounts and dates

- Is not now totally up to me to pay in time and to Lowell to confirm they have received the installments? Correct

- Not that I intend to, but what will happen if I can't make a payment in time? Will the CCJ be confirmed? Yes Will I still have the opportunity to appeal (if I have a strong case to do so)? I wouldn't

 

- Is there any way I can discuss with Lowell further and ask to reduce the installments so I can pay in 5 times rather than 3?

Ring them and ask

Will do so tomorrow, thanks.

Any advice on how I should approach this when I speak to them on the phone?

i.e. I really don't want to default and clear the debt so would prefer 6 installments instead of 3 to ensure I don't miss payment

 

- Any way I can contest all the interests added over the course of 4 years and 4 months since they got assigned the debt?? This is an awful lot... See above...you missed your chance 

 

Regards

 

Andy

 

Thanks Andy - have added my comments in green to your quoted post.

[shamrocker]

That's unlucky, but at least you gave it a go. If you'd have come on here sooner asking for help I think you'd have given the judge less scope to interpret key points. You live and learn though.

 

I strikes me as he wasn't sure what to do for the best and just compromised in the end.

 

If you're going for a mortgage soon, a CCJ will definitely cause you problems - so is best avoided. The default on the Vanquis card might even cause you a headache.

[BazzaS]

I'm confused: how has the judge ordered payment without it being a CCJ? (his [County Court] Judgment for the case).

 

Has he stayed the case, allowing time for you to make the payments before reviewing if a CCJ will be issued? Unusual, but not impossible......

Or is this actually a CCJ, and if not paid off in full within 28 days will show on the register / the OP's credit report.

[AndyOrch]

I'm confused: how has the judge ordered payment without it being a CCJ? (his [County Court] Judgment for the case).

 

Has he stayed the case, allowing time for you to make the payments before reviewing if a CCJ will be issued? Unusual, but not impossible......

Or is this actually a CCJ, and if not paid off in full within 28 days will show on the register / the OP's credit report.

 

A few options...he can defer judgment or bar the claimant requesting judgment...the General Order will confirm

[AndyOrch]

Is there any way I can discuss with Lowell further and ask to reduce the installments so I can pay in 5 times rather than 3?

Ring them and ask

Will do so tomorrow, thanks.

Any advice on how I should approach this when I speak to them on the phone?

i.e. I really don't want to default and clear the debt so would prefer 6 installments instead of 3 to ensure I don't miss payment

 

Ring BW Legal and ask for the case handler......approach nicely and state that in view of the decision made by the Judge (payments and dates) that you was not prepared or considered fully at the time nor was the DJ aware or even question your financial commitments..would it be possible to change the agreement to 6 or even 5 payments thus making it a more realistic and manageable amount with no risk of default.

 

They can either agree or disagree..its no biggie to them..if they do agree to 5/6 then I would request they confirm it with the court...then all parties are covered.

[spelluk]

A few options...he can defer judgment or bar the claimant requesting judgment...the General Order will confirm

 

Will call Lowell now and see what they say. Thanks for the advices.

 

Re the General Order, is this something I will automatically receive or should I request it to the Court?

 

As the first payment is due in 6 days, wondering whether I'm likely to receive this before that deadline... just so I know exactly what the order entails.

 

At the hearing, after making our arguments the judge said that the order was to make those 3 payments. He gave the dates and amounts at which they would have to be made.

 

After that, he just asked us if we wrote down what he just said. I did and that was the end of the hearing.

 

Is it possible that nothing will be sent to me and the DJ will wait to see if the first payment is made? In other words, he expects the notes we took during his verdict to be sufficient?

 

On your point re speaking with Lowell and if they agree to the new payment plan to let the court know. What is the process to do so? Do I/they need to write to the court to confirm?

 

As the turnaround time between judgment and the first payment is quite short, wondering whether it will allow sufficient time to do so.

[BazzaS]

If you think you won’t hear in time, make sure you make the first payment as ordered.

You don’t want Lowell to be able to go back and say “there was no new agreement and he/she has already defaulted on the court’s payment schedule.”

 

If they agree BY PHONE ensure you have the call recorded, and the agreement confirmed in writing / e-mail.

[spelluk]

Makes sense.

 

I've actually been looking for quite some time to find a way to record my calls but haven't found anything for iPhone (maybe didn't look hard enough). Does anyone have experience in doing so on iPhone?

[BazzaS]

I do. It relies on you using a provider who allows conference calls (So, O2 on contract does, but giffgaff doesn’t, for example).

 

TapeACall Lite: Call Recorder by Epic Enterprises Is what I use. 7-day free trial, £10.99 after the trial.

High quality, downloadable recordings.

There are other, similar apps.

 

Another option is to have the call on speaker on one phone (mobile or fixed) and just use a generic recorder (tape recorder or on a mobile separate to the device the call is on).

[newdad]

I'm struggling with this judge's ruling....the OP has shown that legally the case shouldn't have even gone to court in the first place (lack of default notice and quoting case law) yet the judge, totally oblivious to the law he/she is supposed to know, rules in favour of the claimant?.....A mockery of the judicial system in my opinion, or am I missing something?

[AndyOrch]

Im struggling with his payment arrangements....didn't ask for any I&E and sets first payment within 7 days...probably not aware that normal people get paid monthly and have bills to pay.

 

Have you rang them ?

[spelluk]

Thanks BazzaS! Will get this right away.

 

I'm struggling with this judge's ruling....the OP has shown that legally the case shouldn't have even gone to court in the first place (lack of default notice and quoting case law) yet the judge, totally oblivious to the law he/she is supposed to know, rules in favour of the claimant?.....A mockery of the judicial system in my opinion, or am I missing something?

 

Wish I was more experienced to give you an answer... He was actually familiar with the case law but said it didn't apply in my case. Then about s.87 of the CCA, he said that neither (a) or (b) applied to my case either... to which I haven't been able to provide a counter-argument as I am unfortunately not familiar with the technicalities... And the "earlier repayment" (b) I could understand, however not sure how I could have used (a) to say the claimant was "wrong".

But I guess it's now too late to do anything about this? Unless I go to appeal? Not really sure what to do here...

 

Im struggling with his payment arrangements....didn't ask for any I&E and sets first payment within 7 days...probably not aware that normal people get paid monthly and have bills to pay.

 

Have you rang them ?

 

Not yet as I was waiting for some tips on how to record the call. Now that I have the info, will ring them on my lunch break. Will also call the court to find out if they will send/have sent the General Order.

 

Just thinking of something else - if I make the first payment as scheduled on the 8th, will I still get a chance to get them to spread out the next installments so it's more managable for me? Or by making the first payment as per the DJ order, I'm basically bound to continue as per his order?

[AndyOrch]

Cant see a problem with that...no your not bound as long as the claimant is in a agreement

[shamrocker]

He was actually familiar with the case law but said it didn't apply in my case. Then about s.87 of the CCA, he said that neither (a) or (b) applied to my case either... to which I haven't been able to provide a counter-argument as I am unfortunately not familiar with the technicalities... And the "earlier repayment" (b) I could understand, however not sure how I could have used (a) to say the claimant was "wrong".

 

The question for the judge is "what exactly is the purpose of s.87/88 of the CCA?"

 

There are consumer protections built into the CCA, of which a Default Notice is one. Parliament put it there for a reason. They clearly terminated the agreement "by reason of any breach by the debtor" without first serving a DN. And, if they're not "demanding earlier payment of any sum" then what exactly are they doing?

 

There are numerous cases available online where enforcement through the courts hinged on the validity of the DN - often contested on technicalities that were argued to be "de minimus" insofar as making the DN invalid. Compare that to the complete lack of DN altogether.

 

The biggest issue you had was leaving it so late, but you still seem to handled it all pretty well regardless.