Lowell claimform - HBOS OD - poss SBd

[rennai]

Ok got you, good advise...I'll keep it to myself.

 

My defence has SB in it, should I change tactics when drafting WS.

 

I mean a friend of mine paid some money into my account as a surprise gift because I was struggling,  but it was swallowed up with overdraft charges.

 

If I knew he was going to do  so I could have given him an acc no with a different bank. 

 

[dx100uk]

Just type

No need to use quote!!

A gift does not reset sb!!

When was your last payment?

[rennai]

last payment: 25/01/13

 

Lowell didn't challenge my defence, didn't reply to CPR 31.14

 

 2 weeks ago they wrote acknowledging defence filed and hearing date, and asking for payment proposal without prejudice save cost and courts cost, insisting claim is valid.

 

record they registered only on noddle is wrong; default date 07/2013, debt amount inflated to be same as their claim amount? when they haven't won case yet.

 

DD they put was when OC closed acc.

OC never registerred default,

otherwise 2 records would show one from OC as settled then one record from DCA .

 

I'm thinking of challenging this through Callcredit and ICO if need be, ....is there any point of doing this?

[dx100uk]

Now answer the question please

[rennai]

21 minutes ago, dx100uk said:

Now answer the question please

question answered in #28

 

Last payment was on 25/01/2013

[dx100uk]

sorry you did it must have been off the screen.

was that a random payment or like one dating back a bit?

 

 

 

[rennai]

@dx100uk it's a random payment

[dx100uk]

Urm..whats the next previous payment YOU made

 

[rennai]

18th Nov 12... but dec 2012 there and subsequent  months there are OD charges by OC

 

some OD charges were outrageous for 3 months before they closed account it was £150 (they said unauthorized) even though I didn't do any transactions at all, is it right?

 

the charges were increasing the balance  

[dx100uk]

So court claim is now well stayed

all you need to do now is await the debt to fall off you file?

[rennai]

will the fact they issued court claim before it falls off file count?

 

the other thing is acc was opened and operated in Scotland before I moved to England about 3 yrs, will case be viewed under Scottish or English law??

[dx100uk]

Wont change anything..

 

it was opened whilst resident in scotland......

now you tell us!!..

 

its 5 yrs statute barred then debt is extinguished!

does not exist!

 

Dx

[rennai]

guys, I've got hearing coming up...please any suggestion or points you think it may help would be appreciated, I'd check library now for any samples of WS I could use, but if you got link handy please send it?

 

Some points:

 

---As I said previously claimant didn't comply with any request or pre action protocol

 

---the account in question: they bought a disputed account

 

Thanks

 

 

 

 

 

 

[dx100uk]

great 4mts and you comeback

what have you done/responded to in the meantime.

please update us properly with each step that has happened since and how you responded.

 

the debt is extinquished

[rennai]

no correspondence with them since 4mths, no mediation, etc... was just clock ticking to hearing date.

 

Last communication before now was them saying they wont comply to CCA request because it's not regulated.

 

I don't want to put my eggs in one basket so I want to fight this with other grounds not just it's extinguished, National debt line said because case raised in English court whilst Im still living in England that's not extinguished

 

[dx100uk]

  how many times have we said stop talking to these people??

 

the credit was taken out whilst resident in Scotland 

the last payment date by YOU was 18th Nov 12

claimform issuance date 14/09/18

 

that's 5yrs 10mths

the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of The Prescription and Limitation (Scotland) Act 1973, Section 6  and the debt is also extinuquish under said act.

http://www.consumeractiongroup.co.uk/forum/showthread.php?370562-Drydensfairfax-taking-me-to-court-on-behalf-of-honours-student-loans/page9

 

sb ws is in the above post 167 add the above in

 

[rennai]

morning guys,

update: they paid court fees so hearing next week.

 

seen their WS wherein; 

-they stated debt not sb because its 5 yrs 8 months and 3 weeks before they issued court claim, stating that cause of action accrued from the last date random £3 payment was made 

-they claim that a copy of the agreement I requested  is not available due to:

a) it was provided to me at the outset;

b) there is no legislation requiring the OC to retain copy of original agreement;

c) they the claimant doesn't have access to a copy of the agreement

- they aver that they sent me letter stating default notice would not be requested from OC because bank account overdraft is not regulated but that I must have been issued with formal demand for amount owing by OC

 

NB* POC claim mentioned breached of agreement, termination of services, etc but, when I asked for a copy via CPR 31.14 they said they don't have a copy of it....

[dx100uk]

upload to one multipage pdf please 

inc exhibits 

read upload

 

dx

[rennai]

Good evening All,

 

Please any assistance or suggestions would be appreciated regarding my court hearing vs Lowell. I have attached their Witness statement and mine, including the Particulars of Claim, etc

lowell WS.pdf

 

My WS:

 

MY WS

I, being the defendant in this case would state as follows;

 

1.      I make this statement in support of my defence in this claim which is due to be heard on xx^th July 2019 at County Court.

 

 

2.      The facts noted in this statement is from my own experience and knowledge and not just hear say, and except where I indicate to the contrary the matters set out below are within my own knowledge and belief.

 

 

3.      On 14^th September 2018 the Claimant submitted a claim to Northampton County Court stating their Particulars of Claim as exactly as on submitted Exhibit A. As The Claimants pleaded case is that I, the Defendant entered into an agreement with xxxBank under account reference ….... I am uncertain as to which account this refers to. It is accepted that I have had two current accounts and other banking products with Bank of Scotland Plc in the past however the account number given does not relate to any information I have.

 

However, about 8 months after issuing said claim I received a letter (submitted hereto as Exhibit B) with bank statements from Claimant’s Solicitors on 21^st May 2019 which contain account number 01110206 that I recognise; therefore I maintain that said account number originally stated upon which the claimant raised this action is wrong. In addition to said inaccurate account number most points in the claimant’s statement of case appear vague, and when I formally requested Claimant to prove said Particulars of claim they failed to do so.

 

4.      I aver that the Claimant failed to provide upon request the necessary details about the account they are claiming for, for instance:

 

i)                    When exactly did I failed to maintain the required payment of what amount or when did allege debt default occur, what was the degree of default or details of all payments made and calculations of how charges were applied leading to how the sums of £2270.40 claimed have accrued?

ii)                  Claimant did not provide alleged debtor credit agreement, along with a copy the original Terms and Conditions and any subsequent changes in said Terms & Conditions  (referred to as the ‘Agreement’ within the Particulars of Claim) and show how I the Defendant entered into an agreement. 

iii)                Also, I believe Penalty Charges were applied to this account and as such may be unlawful under the Unfair Consumer Contract Terms Regulations 1999. Therefore details of each and every penalty charges would need to be presented along with interest imposed to ascertain their lawfulness. This was not showed.

iv)                 Claimant did not show how termination notice or said formal demand was served upon the Defendant.

v)                  As per Civil Procedure rules 16.5(4), it is expected that the Claimant prove the allegation (as set out in the Particulars of Claim) that the money is owed.

 

 

5.      Upon receiving this Claim on 18/09/19, the next day being 19^th September 2018 I made a valid, formal request by recorded delivery to the Claimant solicitor requesting further information and verification of the alleged debt, as well as request copies of all documents mentioned in Particulars of case (submitted hereto as Exhibit D) upon they intends to rely on in bringing this case for examination by reason of the provisions of CPR. I repeated my request for copies of documents pursuant to CPR 31.14 and also sought an extension of time for filing my defence to the Claim in accordance with CPR 15.5 but all was not complied with.
 

 

6.      On said 19^th September 2018 I also made another valid request enclosing statutory £1 fee payable directly to claimant requesting a copy of my Consumer Credit Agreement as I am entitled to do so under sections 77-79 of the Consumer Credit Act 1974 (submitted as Exhibit E). I will aver that the Claimant received said two recorded letters mentioned in 6 & 7 and the statutory payment of £1 was cashed and, that however there is no doubt that the Claimant failed completely to comply with aforementioned formal cum statutory demand(s).

 

 

7.      I aver that neither the Claimant nor their solicitor replied to aforesaid requests until 13^th March 2019 following my call to their office on 07/03/19 querying their failure to respond to formal demands (submitted as Exhibit F wherein a letter which I think was back dated to 26^th September 2018 was enclosed). In summary reply I got on 13/03/19 did not contain any documents mentioned in Claimant’s claim form.

 

I disagree that letter dated 26/09/18 was sent to me as claimed because claimant did not inform the small claims mediation team that they replied to me so that mediation would go ahead, given that I said I can only go ahead if Claimant would oblige and provide formally requested details of claim they raised. Upon permission from this noble court I can provide details of said email correspondences with mediation team. Further to this I will aver that failure of the Claimant to comply with set rules from outset hindered every avenue by which early and/or out of court settlement would have been realised. 

 

 

8.      I, the Defendant denies monies are owed to the Claimant as alleged, I aver that as in Exhibit A: The agreement (which the claimant claim was later assigned to them on 17/06/2015), failure to maintain required payment and termination of service are the core / bases of Claimant’s claim as they particularly mentioned, however when put to the strictest of proof they failed to substantiate said claim and till date they failed to provide: i) copy of said agreement which was breached; ii) letter on claimed failure to make payment or defaults; iii) letter notifying me of termination of service despite my entitlement to inspect these documents.

 

 

9.      I note the Claimant stated in their response letter (submitted as Exhibit G) that the debt in question is not regulated and that they would not request Agreement and Default Notice from the original creditor however they went ahead and reported a Default Date to Call Credit, a CRA regarding this debt (see submitted Exhibit H).

 

 

10.  Still on said Exhibit H the Claimant reported that balance I owe them is £2,568 (a figure made up of court, solicitors fees, etc) without minding that this case is still in the court process and that have not been declared winner; on this point I note that the Claimant pre-empted this claim they brought before the law court.

 

11.   I aver that the Claimant bought a disputed package bank account and my complaints to Financial Ombudsman Service regarding penalty charges, high interest rate or daily charges, unfair consumer contract or relationship, etc are pending investigation of FOS. Submitted Exhibit I shows a very recent refund of £145.00 due to error of charges applied to said account of which I am contesting.

 

That said, I note that the Claimant have professional duty to put their house in order from outset and buy debts which are free of encumbrances, and based on the fact on cited notice / deed of assignment Bank of Scotland have assigned all its rights pertaining to this debt to the Claimant (see submitted Exhibit J). Thus I believe that the Claimant cannot raise a court claim and simply just say “we cannot produce a copy of an agreement or contract because we are not the assignor or wait until the assignor respond to our request and or we do not have access to such documents”.

 

 

12.  On 24th May 2019 I wrote a letter to the Claimant (submitted hereto as Exhibit K), after taking some advice but I received no reply. 

 

 

13.  I aver that upon opening the account in question I was not issued with a copy of said agreement and I do not hold one. I also did not receive any notice about termination of service. It is on record that I have formally demanded for said agreement both from Original Creditor (submitted as Exhibit L) and the Claimant but all to no avail. I note that the burden proof is on the Claimant who raised this claim against me for alleged breach of agreement.

 

 

14.  I aver that I tried to ascertain that validity of the alleged claim; however the Claimant failed to answer my questions and till date I have not received requested documents. Thus I most respectfully request the Claimant’s claim be Struck Out due to lack of evidence , or Struck Out as the agreement is unenforceable due to lack of an agreement or production of requested documents and award compensation / cost against the Claimant if they fail provide copy of contract they claimed I defaulted on.

 

 

15.  I aver that Service of a default notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without a valid default notice, I suggest that the claimant’s case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974. I note further that it is an established principle for the creditor to prove statutory compliance.

 

16.  Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

 

17.  In my defence I did aver that the Claimant's claim so issued is a claim in contract and that it is statute barred because at the time on top my head I believe it must have been over six years since I stopped using the account and the Claimant was not forthcoming in providing documents requested in timely manner so that I would have a clearer picture. However I do not accept that a random payment of £3 was made to fund an account of that balance, I cannot recollect how said £3 transaction come about. And certainly perusing through the account history £3 was never the regular payment amount I was charged monthly for using said overdraft.

 

Nevertheless, given that contract/agreement was established / signed in Scotland and at all material times I operated said bank account (all transactions was done) whilst I was resident in Scotland I aver to the best of my knowledge that is statute barred pursuant to the provisions of The Prescription and Limitation (Scotland) Act 1973, Section 6 and the debt is also extinguish under said act given that it was over five-year timescale of inactivity, no payments and/or acknowledgement of debt.

 

 

18.  I note that based on the advice I was given and information I gathered from CAB I will aver that the agreement I entered into upon opening was regulated and that I have legal rights (statutory rights) which is covered under the Consumer Credit Act. I believe more so considering and matching how said account was ran by Bank of Scotland, the year the agreement was signed (before 6 April 2008), etc,  with listed features of Regulated Credit Agreements (submitted as Exhibit M).

 

19.  I aver that this paragraph which is an excerpt from Financial Conduct Authority website which is published advice or regulatory framework covering the type of bank account I held with Bank of Scotland further made me strongly believe that mine was regulated Credit Agreement https://www.handbook.fca.org.uk/hand.../?view=chapter:                                                                                                   

CONC 6.3 Information to be provided on a current account agreement and on significant overdrawing Application

CONC 6.3.1R01/04/2014RP

This section applies:

1.     (1) to a firm with respect to consumer credit lending; and

2.      (2) where a firm has entered into a current account agreement where:

1.      (a) there is a possibility that the account-holder may be allowed to overdraw on the current account without a pre-arranged overdraft or exceed a pre-arranged overdraft limit; and

2.      (b) if the account-holder did so, this would be a regulated credit agreement.

 

CONC 6.3.2R01/04/2014RP

CONC 6.3.3 R does not apply where the overdraft or excess would be secured on land.

 

Statement of Truth

 

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

 

 

POC.pdf

[rennai]

EXHIBIT K

 

24^th March 2019

 

Lowell Portfolio I Ltd

9 Savannah Way

Leeds LS10 1AB

 

Dear Sirs

 

Your Ref: 1...….

 

 

MFS Portfolio Limited v Phelan West (2019)

I write to draw your attention to recent successful appeal case regarding a personal current account with overdraft facility; the decision was made before HHJ Walden-Smith sitting at Cambridge County Court.

In this instant case the Appeal court found the personal Current Account Overdraft agreement to be unenforceable pursuant to the Consumer Credit Act because of lack of evidence of compliance with the requirements of the OFT determination.

It was also accepted that Creditors must comply with S 78 Consumer Credit Act 1974 requests relating to personal Current Account Overdrafts, not just credit cards and loans. In this case the Appeal court did find that MFS Portfolio Ltd had complied with the S 78 Consumer Credit Act request. If they hadn’t complied with the statutory request then the personal Current Account Overdraft would have been unenforceable pursuant to s.78 (6) (a) Consumer Credit Act. 

 

In view of foregoing, I note that your company have failed to comply with S78 CCA 1974 therefore your claim is unenforceable. So it is in your own interest (and to save cost) that I demand yourselves to discontinue this matter with immediate effect, otherwise I would be seeking compensation awarded against your company through the court for my time and legal cost to myself for consulting solicitors for advise in defending this claim which I consider not valid since you couldn’t also substantiate it when ask to prove it.

 

Yours sincerely

[AndyOrch]

I'm really not sure what all the above refers to and why you are bothering with it.

 

This is an overdraft current account ?

 

You entered into it in Scotland ? 

 

Claim was issued 14/09/18

 

The last payment date by YOU was 18th Nov 12

 

Section 78 is not applicable to overdrafts.

 

Andy

 

[dx100uk]

beat me to it andy

all totally irrelevent

 

 

[rennai]

@Andyorch

 

based on on this judgement MFS Portfolio Limited v Phelan West (2019)....I'm saying section 78 apply, though I ve been told not to cite it directly in my WS because it's County Court judgement

 

there was random payments made later than 18th Nov 12 which I notice after SAR and statements sent to me by LoWELL e.g £40 by family friend and £3 ,they are only mentioning £3 because it was from my ISA account-I still don't recollect why I made that payment

 

 

[AndyOrch]

Section 78 does not apply to overdrafts...section 78 is for credit cards.

 

What date was this £3 made ? 

[rennai]

dx100uk

don't be surprise I'm not at that level yet LOL...still a notice

 

Moreover, National Debtline said to me that Scottish law would not apply because LOWELL issued claim here in England whilst I'm resident in England

 

£3 made 23 feb 2013

 

thats why lowell is saying 5 years 6 months 3 weeks.... they 're saying after 8 months, they didn't reply to CPR, etc