Aqua Card - Lowells - Lost my case today - please help

[legendary]

OK, here is the required information first and then I will post the summary to see if it's worth appealing to the District Judge.

 

Name of the Claimant ? Lowell Portfolio I Limited

 

Claimant's Solicitor ? Lowell Solicitors

 

Date of Issue? 31 October 2018

 

What is the claim for – the reason they have issued the claim?

1. The Defendant opened a Aqua regulated conusmer creidt account under reference xxxxxx on 22/11/2007 ("the Agreement"). 

2. In breach of the Agreement, the Defendant, failed to maintain the required payments and the agreement was terminated.

3. The Agreement was later assigned to the Claimant on 23/12/2016 and written notice given to the Defendant.

4. Despite repeated requests for payment, the sum of £5,105.93 remains due and outstanding. And the Claimant claims

a) The said sum of £5,105.93

b) Interest pursuant to the s69 County Court Act 1984 at the rate of 8% per annum from the date of assignment to the date of issue, accruing at a daily rate of £1.19, but limited to one year, being £408.47

c) Costs

 

What is the total value of the claim? £6024.40

 

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ? I can see a copy in their witness statement bundle, the date on the LBA is 24 September 2018

 

Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? Yes

 

Did you inform the claimant of your change of address? No

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

 

When did you enter into the original agreement before or after April 2007 ? After I think!

 

Do you recall how you entered into the agreement...On line /In branch/By post ? I think post, not sure

 

Is the debt showing on your credit reference files (Experian/Equifax /Etc...) ? I have not checked

 

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. Assigned to Lowell Portfolio I Limited

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Do not recall, but a copy is enclosed in their witness statement bundle

 

Did you receive a Default Notice from the original creditor? Do not recall, but an example copy, address to  "Mr Aqua Sample, 1 Sample Street" dated 26th April 2017 is enclosed in their witness statement bundle.

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? No, not in the witness statement bundle either.

 

Why did you cease payments? I think around 2016

 

What was the date of your last payment? Sometime in 2016

 

Was there a dispute with the original creditor that remains unresolved? They abrubtly stopped my account, everything went pear shaped from there!

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? No

 

 

 

Here is my summary, together with the time line:

 

31 October 2018 - Claim Issued

15 November 2018 - AoS Filed

29 November 2018 - Summary defence filed

7 January 2019 - Date of DQ

17 April 2019 - 1st Witness statement of the claimant

29 April 2019 - I sent CCA together with a £1.00 cheque to the Lowell Portfolio I Limited, which was cashed on 14 May 2019

29 April 2019 - Witness statement sent to the local court, copy served on the Claimant and the Claimant's solicitor

29 April 2019 - A request for inspection of documents mention in Claimant's first witness statement sent to Lowell Solicitors

 

08 May 2019 - 1st hearing. Hearing was adjourned as the claimant claimed that they didn't receive my witness statement or the Section 78 etc and they need time.

 

23 May 2019 - Claimant's 2nd witness statement, regarding the Section 78 notice, they say as follows:

"15. Paragraphs 23 to 26 of the Defendant's Witness Statement are noted. The Defendant admits that any such requests were made months after the Claim was issued. If the law's intention and correct construction were either that a Claim in itself amoutns to enforcement, or that such a such a request could prevent a Claim restrospectively, then any debtor could defeat any and ecert claim against them by waiting until the day of the hearing and presenting the Claimant with such a request at the Court door. This is clearly not the case. In any event, the Claimant has since fully complied and remedied any such alleged breach by it's disclosure of evidence in the Claim as directed by the Court.

 

17 July  2019 - Hearing today lasted around 1 hour and the judge basically disregarded any and every argument that I made. He said that since the information has been provided to me in the witness statement, the Section 78 notice was redundant. He also said that, the default agreement could have been served in the balance of all probabilites. He awarded the complete sum to the Claimant. He also refused my permission to appeal. He did say that, any permission to appeal with now have to be made to a District Judge.

 

Thank you for reading! If you need any screenshot of any documentation, please ask!

Edited July 17, 2019 by legendary

[dx100uk]

we'll need your defence

and both WS's and exhibits

 

ONE multipage PDF for each please ONLY.

read upload

 

but sounds like you suffered judge lottery unless your defence/WS was that poor.

 

dx

 

[legendary]

This is the summary defence, I entered, before I recieved any witness statements etc.

 

Dear Sirs

Would like to enter summary defence as follows:

1. The Claimant is not known to to me as I have had no previous dealings with the Claimant.

2. The credit card in question was intially opened with HBOS/Progressive Credit Limited, who subsequently sold the operations to New Day Limited, it is at that stage, New Day Limited decided that my account wasn't suitable for their lending criteria.

3. The account was then subseuqntly shut down.

4. There is no outstanding debt and therefore the Claimant, Lowell Portfolio I Ltd, should refer it back to their client for further investigation.

Yours sincerely

xxxxxx

[dx100uk]

ops so you didnt actually accept deny or note any of the accusation in their POC.

and failed to ref your CCA request

did you send a CPR 31:14 as well?

 

dx

 

[legendary]

My witness statement.

Public Copy of Witness Statement - Defence.pdf

 

11 minutes ago, dx100uk said:

ops so you didnt actually accept deny or note any of the accusation in their POC.

and failed to ref your CCA request

did you send a CPR 31:14 as well?

 

dx

 

Hello

 

29 April 2019 - I sent CCA together with a £1.00 cheque to the Lowell Portfolio I Limited, which was cashed on 14 May 2019

 

29 April 2019 - A request for inspection of documents mention in Claimant's first witness statement sent to Lowell Solicitors - I think this is CPR31:14

[dx100uk]

no CPR 31:14 gets sent before you file your defence

its one of 3 things you must always do upon receiving a claimform immediately

CCA/CPR/AOS [if debt is CCA regulated]

 

so you can refer to them in youe defence

but you didn't refer to them in your defence.

so was all but disregarded in you WS 

as that can only 'firm up' things you mention in your initial defence

but anyway

sounds like judge lottery to me and you were never going to win.

 

dx

 

[legendary]

Can I do anything about it?

[dx100uk]

really doubt it.

 

have you the claimants WS and exhibits please

 

your WS aint bad really.

[legendary]

Claimant's first WS together with exhibits is 148 pages. I have a scanned copy, just need to remove 100 pages of pointless statments and redact personal information.

 

Was there an error of law? What does a section 78 need to have and does that information being included in the Witness statment results in a redundant s78 notice?

 

The only agreement they had was from 2013!

[AndyOrch]

Pointless making a Section 78 request after you have received and exchanged witness statements...thats why we advise the CCA and CPR is sent an hour after opening the court claim envelope.

[legendary]

Hello

 

I am still al little puzzled, since I can't quite figure out, that they provided neither a true or a reconstituted copy, didn't provide a statement of account, have had nearly 2 months notice to comply with s78, the judge still ruled in their favour?

 

I came across, multiple cases such as Kotecha etc, but none mentioned the implication of time for a s78 request. Please see this link, which says:

However, they can still:

take your case to court, although they won’t be able to get a court judgment against you unless they give you the information you’re entitled to.

 

From what I gather, as long as a valid s78 has been served and the 12 day limit has passed, then the judgement cannot be entered.

 

If I have not been given the information I was entited to and there was no true/recontituted copy of terms and conditions, and the template terms provided interest rate didn't match statements.

[AndyOrch]

Take a read of some of our threads on how to draft a CPR compliant Defence and Witness statement....then you will see why yours failed to convince the court

[legendary]

11 minutes ago, Andyorch said:

Take a read of some of our threads on how to draft a CPR compliant Defence and Witness statement....then you will see why yours failed to convince the court

 

My witness statement is in the same format of the Claimant's.

 

On MCOL, there is a word limit for the defence, I entered the best I could at the time, but at the trial, I have never seen a judge refering to the MCOL website defence, they all look at the witness statements etc.

 

Please could you tell me what was wrong with my first witness statement?

[AndyOrch]

Here is a typical defence in post #38 which puts the claimant to strict proof to disclose all its documents that the claim relies upon.

 

https://www.consumeractiongroup.co.uk/topic/417458-lanternmoriarty-claimform-old-qq-debt/page/2/#comments

 

now look at your defence.

 

A witness statement simply particularises the initial defence and expands........so if your defence is pants the court wont take much notice of a statement.

All defences are checked and verified by MCOL...the limit is 1080 characters  input ...how many cases have you attended in County Court to see that a defence is not checked ?

 

Here is a typical witness statement  poost #81

 

https://www.consumeractiongroup.co.uk/topic/414700-lowell-claim-form-old-studio-debt/page/4/#comments