Lowell PAPLOC now Claimform - vodafone Mobile debt

[dx100uk]

as you are probably seeing by reading like threads lowell carry through till just before the hearing and discontinue. its a game of chess they play hoping you'll wet yourself and fold.

[jasonaaa]

Yes, seen that they bulk pay trial fees and then claim them back when they decide not to turn up at the last minute. Maybe the courts should stop allowing that happening. Nearly a month of stress for the defendant!

[jasonaaa]

Hi, getting quite anxious now due to the waiting game, no word from Lowell.

I will need to send my witness statement to the court and Lowell on Monday 26th July 2021 by next day delivery. Is my witness statement okay to send? Should I add about:

 

Outstanding Call Charges/Line Rental -£522.80

Early Termination Fee -£867.12

= Total Due - £1389.92

 

due to OFCOM’s guidance on Early Termination Fees.

 

And:

 

It is questionable why the claimant has waited 5 years to litigate on an assigned debt and then tries to claim section 69 interest from the date of assignment but then limits itself to just one year.

 

Do I need to provide any other documents with the witness statement such as what Lowell sent me? I.E. a copy of letter of assignment from Vodafone, a copy of a letter from Lowell saying they bought the account and five months of Vodafone fully itemised bills.

 

Thanks again for all the help, 3 weeks and it will be done one way or another.

[dx100uk]

all court timelines are generally pretty standard and well published, they should not present any defendant with any surprises or need to get anxious about anything... the longer the claimant leaves things, until the need to file is typically a good sign, as it's obvious they cannot come up with anything 'new' for their WS, so will file, as they do with their poc's, a generic std one with as little as possible info, or might be seriously considering folding...as they do on most of these mobile cases.

 

you can see what you'll get by reading like thread claimant WS's already here.

 

unless you intend to rely upon a document, you don't need to exhibit it.

 

as for sec 69 int, they do this to maximise the int they can claim, limiting it to 1yrs without seeming greedy, because most people never defend anyway.

[jasonaaa]

No change on MCOL or letter of discontinuance yet! I guess they really will take this up to the date of the hearing. My phone call court case is on the 10th August 2021 so planning to print and post the WS by guaranteed delivery to arrive by 27th July 2021 (14 days before court hearing) to the court and Lowell. Is the WS okay as is to send? I posted it on 11th July post #47 I think. Thank you.

 

Guess I am just building up the tension .

[AndyOrch]

Responding to your PM jason.

 

the statement is fine in support of your initial defence.....its very difficult to draft a statement when you are not in receipt of the claimants statement as you are not aware of the major points that they will be relying on so difficult to counter.

 

Lets see if you get theirs on time I would delay sending their copy until you receive theirs...

[jasonaaa]

Thanks Andyorch, I believe my WS should reach the court and Lowell  by tomorrow as the court date is 10th August. This means Lowell's should reach me by tomorrow. What penalty  could I incur for late presentation? What is the latest you think I should post my WS? Thanks.

[AndyOrch]

You wont be late filling with the court...if your late serving with the claimant then that will depend if they are late serving you. Both parties wont be penalized for the same none complience. 

[jasonaaa]

Just arrived, Lowell's WS and evidence. Seems a little longer than some I have seen. I will see how much of what I have written can be used to answer it. Any help will be much appreciated as I am now late getting this to the court and Lowell. Thanks.

Lowell WS - redacted.pdf

[dx100uk]

no just the usual twaddle regurgitated by another paralegal at lowells, almost exactly the same text as all the others that they've lost or discontinued very late.

 

worthy of ensuring you address in your ws is :

 

19...the Defendant had already admitted within his Defence that he did enter into an Agreement with the Assignor.....nope you havent said that...you said.. admits that he did have a contractual relationship with the Assignor

[jasonaaa]

Thanks dx100uk. Here is my second draft of WS (.docx as well), not a lot changed. Advice much appreciated.

 

In the County Court at xxxxxxxxxx                                                                                            Claim No. xxxxxxxx

Between:

Lowell Portfolio I Ltd

(Claimant)

 

And

 

Jasonaaa

(Defendant)

Witness statement of Jasonaaa

I, Jasonaaa, at xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, will say as follows:

INTRODUCTION

1.       I am the Defendant in this case and will be representing myself. The facts contained in this statement are known to me, save as where expressly stated and are true to the best of my knowledge, information and belief.

 

2.       It is my understanding that the claimant is an Assignee, a buyer of defunct disputed or bad debts, which are bought on mass portfolios at a much-reduced cost to the amount claimed 10p to 15p in the £1 and to which the original creditors have already written off as a capital loss and claimed against taxable income. Lowell Portfolio I Ltd issue claims to circumvent and claim the full amount of debt with costs to maximise profit.

 

3.       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 debt (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.

 

 

DEFENDANT’S RESPONSE TO CLAIMANT’S WITNESS STATEMENT

4.       The Defendant states that no letters have ever been received from the Claimant (including any Notice of Assignment), with the first contact from them being this claim. Therefore, the Claimant is to put strict proof to their claim by providing proof of delivery for these letters. If the Claimant cannot provide this, then the Defendant invites the Court to strike the claim out based upon a failure to adhere to Paragraph 6 of the Practice Direction – Pre-Action Practice and Protocols.

 

5.       The Defendant claims that his request of November 2019 under the CPR 31.14, of which the Claimant has confirmed receipt, for the disclosure and production of a verified and legible copy of the Agreement has not been adhered to, by way of the fact that a Service Contract is entirely missing from the Claimant’s evidence.

 

6.       It is accepted that the Defendant has in the past had a contractual relationship with Vodafone.

 

7.       A Default Notice is a technical notice required by the Consumer Credit Act 1974 in certain circumstances in relation to credit agreements. The Claimant will argue that the debt does not arise from a credit agreement, and is therefore not regulated by that Act, no Default Notice would have been sent. Whilst this might be the case, this does not exempt the Claimant from following Contract Law, where it is stipulated that where there is an official contract in place and there is an alleged 'breach of contract', the Claimant is lawfully obliged to send notice of this breach, and to have given a reasonable amount of time for the breach to be remedied. The Defendant argues that he has not received any correspondence, in line with Contract Law, to notify him of the alleged breach. As such, the Defendant argues that the Claimant has not behaved properly, both in Pre-Action Protocol, nor have they followed the official guidelines set out by Contract Law in the issuing of the Default. The Defendant invites the Court to strike the claim out, on this basis, and argues that the Default is unlawful and should be immediately removed from the Defendant’s credit file.

 

8.       Considering the above, the Claimant has failed to provide evidence of assignment/balance/breach as requested by CPR 31.14 and the Claimant is put to strict proof to:

(a) show how the Defendant has entered a Contract; and

(b) show how the Claimant has reached the amount claimed for; and

(c) show how the Claimant has the legal right, either under statute or equity to issue a claim.

 

9.       As per CPR 16.5(4), the Defendant alleges the Claimant has not proved their allegation that the money is owed.

 

10.   As the Claimant alleges to be an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act.

 

11.   The alleged amount claimed includes an early termination charge amounting to the entire balance of the remaining contract. OFCOM guidance states that any Early Termination Charge, which is made up of the entire balance of the remaining contract, is unlikely to be fair as it fails to take into account the fact that the provider no longer has to provide and pay for their service.

 

 

 

ORDER SOUGHT

 

12.   As the Claimant has been unable to disclose any agreement upon which this claim relies the Defendant respectfully invites the court to strike out the Claimant’s statement of claim.

 

STATEMENT OF TRUTH

I believe the facts stated in this Witness Statement are true.

 

Signed: Jasonaaa

Dated: 27 July 2021

 

[AndyOrch]

 

 

Point 4...you couldn't make it up..... so they don't need to disclose any copy agreement because they have already given you one at the outset.

There is no legislation requiring the OC to retain a copy and they don't have access to the original agreement. 

 

So lets not bother with CPR PD 16 (7.2)

 

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing.

Doc1.pdf

[jasonaaa]

Should I quote that CPR PD 16 (7.3)(1) has not been adhered to in regards to paragraph 4 of the Claimant's WS?

[AndyOrch]

I would...its devastating to their point 4

[jasonaaa]

Added about CPR PD 16 (7.3)(1) in into and ending

 

In the County Court at xxxxxxxxxx                                                                                            Claim No. xxxxxxxx

Between:

Lowell Portfolio I Ltd

(Claimant)

 

And

 

Jasonaaa

(Defendant)

Witness statement of Jasonaaa

I, Jasonaaa, at xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, will say as follows:

INTRODUCTION

1.       I am the Defendant in this case and will be representing myself. The facts contained in this statement are known to me, save as where expressly stated and are true to the best of my knowledge, information and belief.

 

2.       It is my understanding that the claimant is an Assignee, a buyer of defunct disputed or bad debts, which are bought on mass portfolios at a much-reduced cost to the amount claimed 10p to 15p in the £1 and to which the original creditors have already written off as a capital loss and claimed against taxable income. Lowell Portfolio I Ltd issue claims to circumvent and claim the full amount of debt with costs to maximise profit.

 

3.       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 debt (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.

 

4.       With regards to paragraph 4 in the Claimant’s Witness Statement they claim:

 

‘The original agreement is not exhibited because:

a.       A copy was provided to the Defendant at the outset;

b.       There is no legislation requiring the Assignor to retain a copy of the original Agreement; and

c.       The Claimant does not now have access to a copy of the Agreement.

 

 

DEFENDANT’S RESPONSE TO CLAIMANT’S WITNESS STATEMENT

5.       The Defendant states that no letters have ever been received from the Claimant (including any Notice of Assignment), with the first contact from them being this claim. Therefore, the Claimant is to put strict proof to their claim by providing proof of delivery for these letters. If the Claimant cannot provide this, then the Defendant invites the Court to strike the claim out based upon a failure to adhere to Paragraph 6 of the Practice Direction – Pre-Action Practice and Protocols.

 

6.       The Defendant claims that his request of November 2019 under the CPR 31.14, of which the Claimant has confirmed receipt, for the disclosure and production of a verified and legible copy of the Agreement has not been adhered to, by way of the fact that a Service Contract is entirely missing from the Claimant’s evidence.

 

 

7.       It is accepted that the Defendant has in the past had a contractual relationship with Vodafone.

 

8.       A Default Notice is a technical notice required by the Consumer Credit Act 1974 in certain circumstances in relation to credit agreements. The Claimant will argue that the debt does not arise from a credit agreement, and is therefore not regulated by that Act, no Default Notice would have been sent. Whilst this might be the case, this does not exempt the Claimant from following Contract Law, where it is stipulated that where there is an official contract in place and there is an alleged 'breach of contract', the Claimant is lawfully obliged to send notice of this breach, and to have given a reasonable amount of time for the breach to be remedied. The Defendant argues that he has not received any correspondence, in line with Contract Law, to notify him of the alleged breach. As such, the Defendant argues that the Claimant has not behaved properly, both in Pre-Action Protocol, nor have they followed the official guidelines set out by Contract Law in the issuing of the Default. The Defendant invites the Court to strike the claim out, on this basis, and argues that the Default is unlawful and should be immediately removed from the Defendant’s credit file.

 

9.       Considering the above, the Claimant has failed to provide evidence of assignment/balance/breach as requested by CPR 31.14 and the Claimant is put to strict proof to:

(a) show how the Defendant has entered a Contract; and

(b) show how the Claimant has reached the amount claimed for; and

(c) show how the Claimant has the legal right, either under statute or equity to issue a claim.

 

10.   As per CPR 16.5(4), the Defendant alleges the Claimant has not proved their allegation that the money is owed.

 

11.   As the Claimant alleges to be an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act.

 

12.   The alleged amount claimed includes an early termination charge amounting to the entire balance of the remaining contract. OFCOM guidance states that any Early Termination Charge, which is made up of the entire balance of the remaining contract, is unlikely to be fair as it fails to take into account the fact that the provider no longer has to provide and pay for their service.

 

 

 

ORDER SOUGHT

 

13.   As the Claimant has been unable to disclose any agreement upon which this claim relies as per CPR PD 16 (7.3)(1) Where a claim is based upon a written agreement:

 

‘a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing’

 

the Defendant respectfully invites the court to strike out the Claimant’s statement of claim.

 

STATEMENT OF TRUTH

I believe the facts stated in this Witness Statement are true.

 

Signed: Jasonaaa

Dated: 27 July 2021

[AndyOrch]

Yes seems to cover the main points....just one point your statement of truth is outdated.

 

 “I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

[jasonaaa]

Thank you so much Andyorch and dx100uk

 

I will add the correct statement of truth and post the WS to court and Lowell

[jasonaaa]

No changes on MCOL so at the moment still have my telephone hearing on Tuesday. Any advice on how to handle it if the hearing takes place? I will call the court on  Monday  afternoon and first thing Tuesday  morning  to see if Lowell drop the case. Thanks.

[AndyOrch]

Simply stick to your initial defence and statement...remember its not for you to prove that you don't owe any debt its for the claimant to prove you do and they have all the relevant paperwork to enforce the agreement......dont start to babble ...less is more.

 

Andy

[jasonaaa]

Judge is considering  giving case to lowell as my WS was late by 2 days. Lowell's  was on time. Not sure how to counter this.

Maybe back on phone for hearing at any time.

 

[AndyOrch]

Request relief from sanctions pursuant to CPR 3.9...you are litigant in person and should be allowed a little leniency 

[jasonaaa]

Will do, the court received my WS but not one from Lowell. Could also argue they may not have followed  procedures. We are now emailing WS to the right people.

[dx100uk]

it only gets better!!

[jasonaaa]

Unfortunately  I lost the case and now have to pay just over £1800  to Lowell's  within  14 days!

[dx100uk]

thats rare for a mobile case.

tell us more why ..whilst things are fresh in your mind.

it will help others..

 

dx