Lowell Court Claim - Vanquis card /Allocation to small claims track

[eoghan]

Hi Folks,

 

My wife had a Vanquis card and unfortunately was unable to keep up payments, one thing led to another and she now has a court hearing.

 

Initially we asked for the CCA and they sent us a copy of a the CCA that had a digital signature on it. She was offered mediation but again unfortunately she was too late sending back the acceptance for mediation and it has now been allocated to the small claims track.

 

Any ideas how I should approach this as they at least on the face of it have a CCA.

 

Thanks.

 

 

Scan_24_Jul_2019_Redacted.pdf

[AndyOrch]

Thread moved to the appropriate forum....Financial Legal Issues Forum.

 

Please read the following link and then copy the Qs and your responses back here for further advice on how to proceed.We then have all the information in one post rather than the thread turning into pages of questions.

 

https://www.consumeractiongroup.co.uk/topic/357877-you-have-received-a-claim-what-you-need-to-do-updated-jan-2019/

 

 

Regards

 

Andy

 

Thread title amended

[eoghan]

Q's answered below, however, the paperwork as per your link was done as per the process. I'll add below the set of questions.

 

Name of the Claimant ? Lowell

 

Date of issue – 24th January 2019

 

Particulars of Claim

 

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

 

1.the d entered into a consumer credit Act 1974 regulated agreement with vanquish XXX

 

2.d failed to maintain the required payments and arrears began to accrue

 

3.the agreement was later assigned  to the claimant on 08/12/2017 and notice given to D

 

4 despite repeated requests for payment, the sum of£640.87 remains due and outstanding

 

5.And the claimant claims

a) the said £640.87

b)interest pursuant to s69 county courts act 1984 at the rate of 8% per annum from the date of assignment to the date of issue, accruing daily at a rate of £0.140, but limited to one year, being £51.27

 

 

What is the total value of the claim? £640.87+£51.27+COSTS

 

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC ( Pre Action Protocol) ?No - at least we don't recall receiving it

 

Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? No

 

Did you inform the claimant of your change of address? NA

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

 

When did you enter into the original agreement before or after April 2007 ?

 

Do you recall how you entered into the agreement...On line /In branch/By post ? Online application

 

Is the debt showing on your credit reference files (Experian/ Equifax /Etc...) ? Yes

 

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. Claim has been sold to Lowell who are the claim issuer

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Don't recall

 

Did you receive a Default Notice from the original creditor?Don't recall

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Don't recall

 

Why did you cease payments? Was unable to afford the payments

 

What was the date of your last payment? circa: 2016

 

Was there a dispute with the original creditor that remains unresolved? No

 

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

 

 

 

Here's the defence that was filed when the claim was received.

 

 

[dx100uk]

why do you keep using that crap FmOtL twaddle bloated std CAG defence when you've already been told not too?

[AndyOrch]

Thanks.....its a pity you didn't leave our standard defence in tact..as I recognise parts of the above then it all goes pear shaped.

 

The claimant does not claim that you entered into an agreement with them...they state you entered into it with vanquish...then the debt was assigned to them after you breached the agreement.

 

You keep referring to Allocation I assume you mean Assigned ?

 

Anyway its submitted now and is what it is.....1/2/3 are good ...not sure where a/b/c/ came from.

 

Have you made a CPR 31.14 request and section 78 request ?

 

Andy

[eoghan]

@dx100uk because this twaddle was sent prior to you telling me not to...

 

@Andyorch yes both were sent, they haven't responded to the CPR but they did send a printout of a digital signed CCA which I don't have a copy of, at least I can't find it.

 

 

[AndyOrch]

Okay well  done.

 

So back to the Notice of Allocation.....only points 7-11 concern you and you follow the courts directions to the date.We can correct the failings of the defence within your witness statement...you have until the 9th August 4.00pm to get this drafted and prepared along with any exhibits.

 

LOwell tend to either serve at the death so you have no time to counter their statement or fail to serve at all then discontinue the claim.

[eoghan]

So sit tight until they send their pack through?

 

Apologies for making this harder than it should be.

 

 

[AndyOrch]

Well not too tight as they may send it the day its due in court or the day after you serve yours..at least have your statement prepared and ready to edit if you do receive theirs on time

 

In the meantime It would be invaluable in the meantime for you to find out....

 

When did you enter into the original agreement before or after April 2007 ?

 

Did you receive a Default Notice from the original creditor? Don't recall

 

 

[eoghan]

Definitely after 2007, more like 2015, but I'll speak to the wife and try and dig that out.

 

Based on my previous 'twaddle' is there any points I need to absolutely adhere to for this statement? Is there a template?

 

Thanks,

Steve.

[AndyOrch]

No such thing as a templated witness statement ...each are unique to the defence by claim.Plenty of example here in this forum and in the Legal Success Forum....so you know how to format and structure it.

[eoghan]

Hi All,

 

The claimant statement has arrived today, attached for reference. 

 

I can see how following FMOTL stuff has ruined this for ne now, hopefully there is still a way out of this mess.

 

 

 

 

The evidence bundle that came with the statement above.

 

@Andyorch What do you think?

LowellClaimEvidencePackReduced.pdf

 

Been reading through the Legal Successes and my head is spinning,

 

the only thing that appears to stand out is that at least from what I can tell, Lowell never sent a Notice of Default, only Vanquis as per the evidence pack, as the creditor and under the regs assigned to them are they supposed to send a Default Notice?

 

I also noticed on the Ts&Cs that the reference to transfer of rights is under section 19 but on the vanquis website it's under section B18 so wondering if these are in fact the original and does it constitutes a properly executed CCA as it doesn't state that it just has a weirdly printed text box on the right handside of with a typed out name, date etc.

 

https://www.vanquis.co.uk/credit-cards/terms-and-conditions

LowellClaimStatementReduced (3).pdf

[dx100uk]

there is no requirement, nor can, a dca issue a default notice, as only the OC can issue a DN, but anyway under the CCA the agreement was already terminated by the OC upon sale.

 

cant see anything of worth wrong with the T&C's either nor the rest of the WS/Exhibits.

 

sadly adding in FmOtL rubbishto our std defence has doubled the debt now almost..

 

tomlin time?

 

 

 

[eoghan]

So they still haven't supplied a valid CCA only the Tcs & Cs and they don't even have an address on them.

 

Reading through some of the success threads the following final witness statement might be something, is still worth a try?

 

CLAIM NO: 

IN THE COUNTY COURT AT BEDFORD.
BETWEEN:

LOWELL PORTFOLIO I LTD                                                                CLAIMANT

-AND-

DEFENDANT

WITNESS STATEMENT OF

I will say as follows:

INTRODUCTION

1.    I am the defendant and state that the facts contained in this statement are true to the best of my knowledge.

2.    The claimants witness statement opening paragraph 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 and also be in attendance at hearing to give evidence in support of the claimants witness statement.

3.    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 which the original creditors have already wrote off as a capital loss and claimed against taxable income. The claimant then issues on mass claims to circumvent and claim the full amount of debt to maximise profit.

4.    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.

5.    Paragraph 3 is noted that the claimant states the agreement was issued on 22 AUGUST 2016 and clearly states that they enclose and rely on a reconstituted version of the agreement in support of its claim “CCL1”. Given the timeframe they’ve had to disclose this, the version they rely upon is deficient of the prescribed contents on which a reconstituted version can be relied upon in when providing a copy of an executed agreement in response to a request under section 78(1) of the CC Act1974. A creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) as agreed to. This is to ensure that it is an honest and accurate copy. The copy the claimant wishes to rely upon does not even contain a name or address and is therefore irrelevant. 
a.    Section 65(1) CCA 1974 clearly states an improperly executed agreement can only be enforced by court order. 
b.    S127(3) states the restrictions on enforcement. Therefore, the agreement relied upon is improperly executed as it is not in the prescribed form.

6.    The claimant is put to strict proof to disclose a copy of the Default Notice it’s claim relies upon pursuant to section 87(1) CCA1974( a/b/e). They have supplied a copy Default Notice sent by the original creditor but to date have failed to send one as the assignee of the rights and privileges it is stating it now has. 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:-(a)to terminate the agreement, or (b)to demand earlier payment of any sum, or(e)to enforce any security.

BACKGROUND

7.    The Claim relates to an Alleged Credit card agreement between the defendant and Vanquis bank.

8.    Whilst it is accepted that the defendant has in the past had contractual dealings with Vanquis, the defendant is unaware of what alleged debt the claimant refers, and the defendant has not entered into any contract with the Claimant.

9.    The defendant has received numerous letters from the claimant asking for payment with varying settlement figures leading, this along with the no reply for CCA request led the defendant to doubt the authenticity of the Claimant and the claim.

10.    The figure on the Notice of default from the original creditor Vanquis as per the claimant’s defence bundle “CCL2” and the notice of assignment “CCL4” being different amounts adds further doubt to the authenticity of the claim.

11.    Legal proceedings were issued by the claimant to which the defendant issued her defence a copy of which was served on the claimant.
a.    Upon which a CPR31 and CCA78 request was made to establish if the claimant had the required evidence to support such a claim. The defendant was sent a reconstituted copy of an agreement that fails to meet the definition of a properly executed CCA

12.    The defendant stated in her defence that no evidence of the CCA has been provided nor evidence of the acquisition/purchase of the alleged debt by the claimant.

 

DEFENCE:
12: The claimant has not provided a true copy of the CCA despite 2 requests being made firstly in response to a letter from Lowell solicitors despite stating `please find enclosed a copy of the agreement`

13: There is no valid copy of an executed consumer credit agreement that complies with the CCA1974

14: The `so called` copy of agreement stated in claimants “CCL1” is in fact stated as an online application and is no more than a log from either the Original Creditor`s operating system or one that has been constructed since with details from the account to look like an application.

 

IN CONCLUSION:
16: Without a valid true copy of the executed Credit agreement that complies with the CCA1974 the claimant has no grounds on which to enforce this alleged debt and has in fact attempted to mislead the courts in to believing that they have the necessary paperwork. The evidence provided by way of exhibits is woefully deficient and invalid and not pursuant to the CCA1974.

It is therefore respectfully requested that the court dismiss this claim and costs requested.
 

Statement of Truth
 
I, ********, the Defendant, believe the facts stated within this Witness Statement to be true.
 
Signed: _________________________ _______
 
Dated: _________________________ ______

[dx100uk]

cant see where they state its a recon?

the only issue I can see is the second paragraph of 1.1 in it...re reply card etc.

 

as already stated you have the OC's DN 

there is no requirement for the claimant to issue a further DN nor can they. - [Fmotl twaddle again sadly]

 

you never had nor needed and agreement with the claimant - [fmotl twaddle again]

 

so 6 and thus 8 are pure bunkum.

[eoghan]

Is there an emoji for "ah balls"????

 

Been looking at Tomlin orders and they seem to suggest that it might be too late plus you often end up paying more weekly than you would under a CCJ.

 

 

[dx100uk]

don't think it's too late??

weekly? its whatever you agree £pcm on the tomlin

 

the ccj would not be enforced nor registered unless you failed the tomlin agreement.

it would ofcourse inc all their costs listed, unless you are very lucky and negotiate them out..no hearing = they might not charge barrister/sol fees remember ..

[eoghan]

Is there a link on here to show on how I setup an application for a Tomlin order as I've got until the 9th to submit everything to the court.

[dx100uk]

a tomlin is not to the court

you contact the claimants solicitors directly.

 

let andyorch look this all  over later

there are numerous threads here involving tomlin orders use our search.

[eoghan]

Thanks just having a look now.

[eoghan]

Thinking of sending the following to their email address:

 

Dear Clive,

 

I am writing on behalf of the defendant XXX in relation to the claim reference above. She has asked me to write on her behalf asking if there is a way to settle this outside of court in order to avoid a CCJ, perhaps a Tomlin Order might be the way forward.

 

Without admission of any liability she would like to make an offer to start a repayment plan, however, I have looked at her financial situation and she is already on the breadline and in receipt of tax credits to help make ends meet.

 

Perhaps, if there was a reduction in the amount the settlement could occur in a lump sum. I’ve read that offers of as much as 50% reductions have been forthcoming, particularly when your claimant is purchasing debt at around 10p-15p in the pound. A 50% reduction would still give your client a sizeable profit on the debt and would avoid a messy court hearing for both parties.

 

Given the timing we would welcome a quick reply.

 

Kind Regards.
 

[AndyOrch]

Little point in pursuing this claim as they seem to have all the required documents and your initial defence simply spurred them on as it was obvious you did not know what you were doing..

 

So on to the Tomlin....drop the Clive....he's merely a paralegal who drafts statements....and cant agree a Tomlin Order.

 

If you must write , I advocate a phone call as its quicker catches them off the ball and away from their script.....but if you must write simply imply that you may wish to settle by way of a Tomlin Order with affordable payment plan.

 

 

I have also marked in blue above the points you should not include.

 

Andy

[eoghan]

Thanks guys. It's been a cliff face of a learning curve.

 

I'll keep you posted on the outcome.