Lowell claim form - old studio debt***Claim Discontinued***

[AndyOrch]

Well thats okay...lets see if they comply with the rest of the directions on time.

[bloodline67]

I’ve still not received any documents from Lowell’s yet, I thought they were supposed to send them to all parties 14 days before the court hearing? The hearings is on the 8th August and I wanted to check what they emailed me was the same as what they were supposed to post to me for my defence. Do I just sit tight and wait? Time is running out quick now and I’m getting a bit worried.

[AndyOrch]

So by Thursday 25th July you should receive the claimant's witness statement and all the documents they intend to rely upon.You should also serve your statement and disclosures to the claimants Solicitor by the same date.

 

Don't rely on them complying by that date and dont wait for their statement and documents before you start yours......start preparing now.If you receive theirs on time or late you can easily modify your draft to suit.

 

Andy

[bloodline67]

Thanks Andy, so I should base mine on the documents they emailed me? I’m a bit wary of posting my statement on here just in case Lowell’s see it, do they check these forums or am I being a bit paranoid?

[AndyOrch]

Thats all you can do and particularise your initial defence ...in the absence of the claimant's statement...you post your statement in PDF format..only members can open PDFs

 

If you dont post it how are we suppose to advise ?

[bloodline67]

I’ve been hunting round on the forums looking for a rough guide on how to write out my statement, is this one ok to use as a template?

IN THE ******* county court
Claim No. ***********

BETWEEN:
Claimant


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 the claim.

The claimants witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph.It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.

1. I understand that the claimant is an Assignee, a buyer of defunct or bad debts who are based in Jersey, which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already wrote off as a capital loss and claimed against taxable income as confirmed in the claimants witness statement exhibit by way of the Deed of Assignment

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 ******, I received a claim from the County Court Business Centre, Northampton, for the amount of £****.The claimant contends that the claim is for the sum of £X in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The consumer credit Act 1974 (CCA).The particulars of claim fail to state when the alleged agreement was entered into but their witness statement states it was 1994 23 years ago.

3. 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. It goes on to evidence a default notice in their exhibits which is provided by Mercers and not the actual creditor Barclaycard themselves.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.

Given that Mercers are in fact a Debt Collect Agency they cannot be considered to be the creditor or owner of the regulated agreement.

5. On the xxxxxxxxI 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 [EXHIBIT A]. 

6. On the xxxxxxx 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 [EXHIBIT C].
The claimant has since disclosed a copy of the application which purports to be the agreement within its witness statement at point 5 exhibit HT1 and admits its very poor quality.It is averred that it is impossible to read and illegible..the court is invited to try and decipher the contents and in particular the prescribed terms pursuant to section 78 CCA1974 and sec 61 (1) c of the CCA1974.

The claimant tries to get around the poor quality by trying to rely on Carey v HSBC.Carey V HSBC is irrelevant in this matter and only applies to the giving of information under section 77/78/79 and is not retrospective to agreements entered into pre April 2007.I therefore contend that section 127 (1 and 2) accordingly applies in this case.

7. Furthermore the author of the witness statement at point 6 then tries to introduce a reconstituted version of the agreement (exhibit HT2) which is no more than a set of Terms and Conditions and in no way comply with the prescribed terms of a reconstituted version which they have previously tried to rely on at point 5 of their witness statement.

8. The Claimants pleaded case is that the Defendant entered into an agreement with HSBC under account reference **********. I am uncertain as to which account this refers to. It is accepted that I have had banking products with Barclaycard in the past however I have no recollection the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim relies upon and not try to mislead the court.

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. 


Statement of Truth

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


Signed: _________________________ _______

Dated: _________________________ _______[/QUOTE]

[dx100uk]

sort of

but you'd do better to use one from a CAT debt claimform thread 

plenty here in recent weeks

 

[bloodline67]

Hi, I’ve done my best to do a witness statement, please give me your feedback.

also whilst checking my documents within the Tomlin letter from Lowell’s I found copies of the same documents that they emailed me, the cc agreement though is virtually unreadable, also the is no name, address or account number on it, I’ve also uploaded this for you to see too. The letter also says they are contacting the Assignor for copies of the default notice which once received they will forward onto me.

one last question, does the information they have in closed with the Tomlin letter constitute their court documents or should that be a separate letter?

 

IN THE ******* county court
Claim No. ***********
BETWEEN:
Claimant
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 the claim.The claimants witness statement confirms that it mostly relies on hearsay
evidence as confirmed by the drafts person in the opening paragraph.It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2(1) (A) of the Civil Evidence Act.

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 wrote off as a capital loss and claimed against taxable income as confirmed in the claimants witness statement exhibit by way of the Deed of Assignment.

 

2. On or around the ******, I received a claim from the County Court Business Centre, Northampton, for the amount of £****.The claimant contends that the
claim is for the sum of £X in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The consumer credit Act(1974).

3. 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. Lowell solicitors have failed to produce a valid default
notice, 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.

4. On the xxxxxxxxI 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.(See Exhibit 1A)

5. On the xxxxxxx 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.(See exhibit 1B)

 

The claimant has since disclosed a copy of the application which purports to be the agreement and which its very poor quality.It is averred that it is impossible to read and illegible..the court is invited to try and decipher the contents and in particular the prescribed terms pursuant to section 78 CCA1974 and sec 61 (1) c of the CCA1974. Furthermore there is no name, address or account number on
the credit. (See Exhibit 1C)

6.Until such time the claimant can comply and disclose a true executed copy of the agreement and default notice 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.

 

7.In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial.

 

 

Statement of Truth

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

Signed: _________________________ _______
Dated: _________________________ _______

 

Cc_agreement_.pdf

[dx100uk]

inc the fact there are no name ad etc on xx docs.

 

 

[bloodline67]

I have at the end of section 5

[bloodline67]

Is this ok to send then? And do I need to included copies of the cc agreement?

[dx100uk]

you refer to their WS exhibit no

[AndyOrch]

A Tomlin Order does not contain documents or exhibits......just the order and schedule.

[bloodline67]

7 minutes ago, dx100uk said:

you refer to their WS exhibit no

But they haven’t sent their WS yet and I need to post this tomorrow 

[dx100uk]

you can quite safely post it a day or two late

you are a litigant in person which gives you certain leeway.

 

there is nothing to stop you adding that copy as a exhibit yourself and using it 

just state sent by the claimant xx date

 

the trouble here is you've let the claimant use email and not emailed back and told them not to use your email address for case material??

so they are probably going to email it to you at 1 min to midnight tomorrow night

as they know you wont be able to counter it , but it'll be complete rubbish I bet

play them at their own game

 

[bloodline67]

I stated during the mediation session that my email was to be used for just sending me the documents and nothing else, to which they agreed.

[AndyOrch]

Thats fine bloodline...I have edited a few points and marked 2 points in blue which should be removed...(you have not received the claimant's statement as yet)

 

I have a added a point 7.

 

4. Exhibit 1A is your CPR 31.14 request

5. Exhibit 1B is your section 78 request

5. Exhibit 1C is the claimants purported agreement 

 

Attach the request and copies sign and date 3 copies Court?Solicitor/File.

 

Andy

[bloodline67]

Thanks Andy.

this might sound a silly question but what is the request ?

[AndyOrch]

The requests are your CPR 31.14 and section 78 requests that you refer to in your points 4 &  5 of the above witness statement.

 

If you dont attach them as exhibits...then you cant prove points 4 & 5 are true ?

[bloodline67]

Good news, received a letter from Lowell’s today discontinuing the case.

 

Thank you all for your help 

[AndyOrch]

As my post #76 then 

 

Thread title updated...please consider making a donation to help us to continue to help others such as yourself.

 

Well done 

 

Regards

 

Andy

[Peterbard]

Brill, well done everyone.