Erudio/Drydens Claimform - old SLC Loans - stayed - now N244 for SJ

[AndyOrch]

Topic open

[AndyOrch]

Just bear in mind a witness statement in response to an application for Summary judgment is different to a normal witness statement in response to allocation. Your statement must be filed not less than 7 days pre hearing date.

[AndyOrch]

Example statement in response to an application for Summary Judgment.

 

"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 to oppose the claimant application for Strike Out/Summary Judgment in view of my defence submitted to the claim dated XXXXXXXXX pursuant to CPR 24.5 (1) a&b.

1. 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.

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 which the original creditors have already wrote off as a capital loss and claimed against taxable income. Then issues claims to circumvent and claim the full amount of debt 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 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.

4. Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and HBOS.On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity by way of a section 78 request.

At the time of submitting my defence the claimant was in default of this request and unable to comply with this request and was therefore unable to proceed and enforce the claim or request any relief.

The claimant is put to strict proof to verify and confirm that the exhibit at paragraph 2 marked LW01 are the true terms and conditions as issued at the time of inception and execution of the agreement.

5. Paragraph 3. Contained within the claimants particulars and witness statement 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 evidences this fact by way of a screen shot which is not proof nor valid pursuant to section 87(1) of the CCA1974.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.

The claimant is put to strict proof to further evidence and verify the service of the above.

6. Paragraph 4 is noted and partially addressed at my point 2.Reffering to its business as charged off debts may be one description . The claimants states the debt was assigned to its claimant on or around the 8^th Oct 2010 and confirms that a Notice of Assignment was sent 1^st March 2011 some six months later.

It confirms that a reconstituted version is relied upon at exhibit LW03.Pursuent to the Law of Property Act 1925 there is no reference to reconstituted versions of Notice of Assignments but what equates to a valid Notice with its prescribed terms and inclusions for the assignment to be valid. A reconstituted version is not proof that it was ever served or the assignment was valid.

The claimant is put to strict proof to evidence further the Notice of Assignment is a true copy or possibly disclose the Deed of Assignment as to verify its authenticity.

7. Paragraphs 5/6/7 are noted token payments were made under duress but are not an acceptance of any liability of the debt or assignment.

8. Paragraph 8 is accepted in that a claim was issued 6 years after assignment to which a defence was submitted along with requests for documents vis a CPR 31.14 and section 78 of the CCA1974.

 

Stay of Proceedings

9. Paragraphs 9/10/11 is noted but unfounded and misleading to the court. The claimant misleads the court in its reasons. The reasons for the stay are explained above and has to why. They were not in a position to proceed because they could not disclose any agreement or further documents. Therfore the request to lift the stay should be denied as the above is not a true or accurate reason or occurrence of events.

 

Application to strike out/Summary Judgment

10. Paragraph 12 should be denied. I believe I have every opportunity in defending this claim successfully and it should be allowed to proceed to trial. The claimant is put to strict proof to respond as to why it presumes my defence has no reasonable grounds for defending given that all its exhibits are questionable or invalid with the current legislation.

Paragraphs 14/15 the claimant refers to exhibit LW01 which they refer to as a true copy of the executed agreement. It is averred that the disclosure purport’s to no more than an application form a pre executed application form which is deficient of the prescribed terms.

This renders the exhibit as unenforceable pursuant to section 127 (1) & (2) of the CCA1974 as the alleged date of the agreement is dated 4^th May 2004 and the amendments of the CCA2006 are not retrospective to agreements entered into pre April 2007.

11. Paragraph 16 is irrelevant and already denied at my point 5.

12. Paragraphs 17/18 are noted and a response already made above to which is denied.

13. Having regard to the above it is respectfully requested that the claimant’s application is denied and the application for strike out/summary judgment is dismissed. 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 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.

 

Dated this XXth day of XXXXXX. 

 

Signed.............

 

Name ...............

[AndyOrch]

 (Should this be the date of this claim, or the when they issued their first claim on 27/02/2020?)  Date of the initial claim this isnt a separate claim there is only one claim.

(Would it be wise to acknowledge the MCOL decision, and state that the decision should be upheld?) 

The claimant is entitled to make an application to lift the stay in any claim your objection would be to why it was stayed so long and why it shouldn't proceed to allocation.

 

Andy

[AndyOrch]

If you insert the following amendment before the sentence at 7 it makes it correct and covers all eventualities and allows point 7 to flow.

7. Notwithstanding the above the claimants statement paragraphs 25, 28, 33, 34 should be denied. I believe I have every opportunity in defending this claim successfully and it should be allowed to proceed to trial. 

 

[AndyOrch]

22 minutes ago, USB53 said:

As my defence is SB, I presume adding anything else (eg, not earning above the threshold, the loans being wiped after 25 years etc, etc) is now irrelevant? Well yes.

I also enjoyed Para 2 from the example WS you posted above, but presume that would be an unnecessary addition!

No as your defence is based on the claim being statute barred why not use it but change the word contract to agreement.

[AndyOrch]

Slight tweak 

[AndyOrch]

Stick to the points raise in your statement /defence ...best of luck

[AndyOrch]

To be honest DX I have never really been sold on your argument that a deferment start acts as the last acknowledgment of a loan rather than the end of the deferment. A deferment does not act like a default notice or terminates the agreement but simply suspends any payment preventing a default notice being issued.

Looking at it from that perspective it would imply that the end of the deferment is when a Default Notice is issued should the payments be defaulted and the agreement terminated.

Grey area As I cant really find anything concrete on deferment and the affects on limitations.

Interesting points raised on Debt Camel.

https://debtcamel.co.uk/old-style-student-loans/#:~:text=If you have deferred every,wouldn't be statute barred!

 

[AndyOrch]

But you dont have the option to defer a payment on a standard loan if you miss you get a default notice/termination. Think of " deferment " as suspension of payments without affecting the agreement without consequences  not part of time to add or remove from the Limitation process.