Lowells PAPLOC now claimform - old Vanquis card debt ***Claim Dismissed***

[king100]

Hi Sorry im lost on your reply, should your points overwrite mine?

Edited December 6, 2021 by dx100uk
unnecessary previous post quote removed

[AndyOrch]

Your point 6 ....." and the defendant has not entered into any contract with the Claimant."

 

The claimants particulars of claim has never stated you had.

[king100]

3rd Try

 

STATEMENT OF

 

 I Mr 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: There are several documents attached with this statement. (paginated)

 

3: The agreement was later assigned to the claimant on 29/09/2017 a notice of assignment, incorrectly dated (See Exhibit 1) was sent to the defendant. 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.

 

BACKGROUND

 

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

 

6: 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.

 

7: The defendant has requested on numerous times a copy of the CCA, the first time, claimant has replied back on 23/11/2020 (Exhibit 1) with a copy of the agreement and notice of assignment, the agreement being a printed out application form, followed by my another letter containing statements(not enclosed). Defendant then again requested on the 07/12/2020 (see letter attached Exhibit 2) a copy of the CCA, claimant has replied back on the 28th Jan 2021 claiming that the evidence enclosed rebuts defendants defence and encloses a statement and default notice. (Exhibit 3)

 

8: The defendant stated in his defence that no evidence of the CCA has been provided.

 

9. The alleged account is £less that £200 over the credit limit but the default notice states that the arrears on the account is £200. Under section  87/88 of the CCA the default notice should not include unlawful fees in it sum requested.

 

10. The defendant sent a Subject Access Request letter dated 30/11/2021, on writing this witness statement nothing has been received.

 

DEFENCE:

 

11: The claimant has not provided a true copy of the CCA despite numerous requests being made firstly in September and secondly on the 07/12/2020 in response to claim despite stating in the letter dated 23rd October 2020 `please find enclosed a copy of the agreement. Should the claimant magically supply some form of CCA at trial, defendant would highlight why this wasn't provided, when requested, on numerous times before trial. Defendant would then highly stress to the court that this is indeed not the true copy of the executed Credit agreement.

 

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

 

13: The `so called ` copy of agreement stated in claimants letter dated 23/11/2020 is in fact stated as an online application and is no more than a log from either the OC`s operating system or one that has been constructed since with details from the account to look like an application.

 

14. The notice of assignment dated 11th May 2017 (Exhibit 1) states that the debt was sold to Lowell Portfolio I Ltd on the 29th September 2017. This is confirmed in 2 separate letters. One from Vanquis and the other from Lowell Portfolio I Ltd. Section 82A of the CCA 1974 states that the assignee must arrange for notice of the assignment to given to debtor. The above letters show that the notice of assignment has incorrect dates, thus rendering the notice of assignment invalid and thus the claimant has not acquired the debt correctly and thus cannot claim.

 

IN CONCLUSION:

 

15: 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.

 

16: The incorrect dated Notice of Assignments letters questions the ability of the claimant to maintain correct paperwork and thus the defendant is unsure what paperwork supplied is correct.

 

17: It is therefore requested that the Claimants Claim is struck out pursuant to the above.

 

Signed 

Dated this day……. 

 

 

Could you check out this part

 

"14. The notice of assignment dated 11th May 2017 (Exhibit 1) states that the debt was sold to Lowell Portfolio I Ltd on the 29th September 2017. This is confirmed in 2 separate letters. One from Vanquis and the other from Lowell Portfolio I Ltd. Section 82A of the CCA 1974 states that the assignee must arrange for notice of the assignment to given to debtor. The above letters show that the notice of assignment has incorrect dates, thus rendering the notice of assignment invalid and thus the claimant has not acquired the debt correctly and thus cannot claim."

[AndyOrch]

in Nicoll v Promontoria Ram 2 Ltd [2019] EWHC 2410 (Ch), the High Court held that a notice of assignment of a debt given to a debtor was valid, even though the effective date of assignment stated in the notice could not be verified by the debtor. The case concerned a debt assigned by the Co-op Bank to Promontoria and a joint notice given by assignor and assignee to the debtor that the debt had been assigned “on and with effect from 29 July 2016”.

 

A subsequent statutory demand served by Promontoria on the debtor for the outstanding sums was disputed on the basis that the notice of assignment was invalid because it contained an incorrect date of assignment. Whilst accepting that the documentation was incapable of verifying with certainty the date of assignment, the Court held that the joint notice clearly showed that both parties had agreed that an assignment had taken place and was valid. This decision suggests that mistakes as to the date of assignment in a notice of assignment may not necessarily be fatal, if it is otherwise clear that the debt has been assigned.

[king100]

ok so take this out, need to send this tomorrow.

[AndyOrch]

Yes it wouldn't invalidate the NOA however the NOA must contain both your and their address the agreement number and the correct debt amount.

[king100]

the default notice has wrong £££ states I need to pay £200 when in fact Im only over by £144ish

[AndyOrch]

Then its invalid and does have a major effect on their claim and renders the claim invalid.

So edit 14 and switch it to invalid default notice quoting section 87(1) and 88 of the CCA1974 as to why it invalidates the claim.

[king100]

The default notice dated 02 Dec 2015 states

 

Account Balance is £2144.88

Credit Limit £2000

Arrears on the account £200

 

does that make it invalid.

 

is this stronger than then not having terms and conditions

Edited November 29, 2021 by king100

[dx100uk]

[king100]

Possibly?

 

The default notice dated 02 December 2015 (Exhibit 1) states that the Account balance is £2144.88, the Credit Limit is £2000 thus the arrears on the account are £144.88, not the £200 as stated in the letter. Section 87(1) of the CCA 1974 states that the debtor in accordance to with section 87.1 issue a default notice before the creditor or owner can become entitled. The arrears are £144.88.

 

Under section 87(1) or 88 there is no provision to charge a fee whilst issuing a default notice and thus the default notice in invalid and claimant has no entitlement to the debt.

[dx100uk]

On 02/02/2021 at 17:43, dx100uk said:

the reason i wanted the dn £ figures is because vanquis often add hidden DN fess for issuing one.

 

they have this time too.

the sum stated to pay is £200

But only over limit by £150..

Where this extra £50 fron?

Dn void as includes fees??

already been through the DN read from 2nd feb!! onwards

[king100]

Is what I said above correct to put in witness statement.

[dx100uk]

here is the default notice

 

its no good us telling you what to put, you need to UNDERSTAND section 87/8 as to why the DN is invalid/void so you can successfully clarify your ES when in court to to the judge.

 

i also believe the fact that they have included a default notice issuance fee in the sum it states invalidates it's as well , but @Andyorch's comment might already be sufficient to cover both.

 

 

 

[king100]

I understand that, thats why Im here. Ive read and reread 87 and 88 and still cannot find the reason, the only thing I cant see is any mention of fees.

[dx100uk]

just type

 

 

[king100]

Sorry been a long day at work, but still dont get it.

 

87Need for default notice.

(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,—

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

(c)to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3)The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4)Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

(5)Subsection (1)(d) does not apply in a case referred to in section 98A(4) (termination or suspension of debtor's right to draw on credit under open-end agreement).

 

 

88Contents and effect of default notice.

(1)The default notice must be in the prescribed form and specify—

(a)the nature of the alleged breach; FAILURE TO MAKE MINUMUM PAYMENT

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken; £200 TO BE PAID WITHIN 19 DAYS

(c)if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid. NO MENTION OF COMPENSATION

(2)A date specified under subsection (1) must not be less than [F114] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F114] days have elapsed. 19 DAYS

(3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F114] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F2and any other prescribed matters relating to the agreement]. THEY WILL TEMINATE AGREEMENT

[F3(4A)The default notice must also include a copy of the current default information sheet under section 86A.]

(5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

was coming back to edit the above but cant

 

The default notice dated 02 December 2015 (Exhibit 1) states that the Account balance of £2144.88, the Credit Limit is £2000, thus the arrears on the account are £144.88, not the £200 as stated in the letter.

 

With the arrears being £144.88.

 

The sum to take the account out of arrears is £144.88 there is no justification for the £200and nothing has been advised in the default notice.

 

Section 88(c) states that if a breach is not capable of remedy, the sum if any is required to be paid as compensation of the breach, there is no mention of the sum, just the balance outstanding, plus interest and charges due. 

 

The above makes the default notice invalid and thus the claimant is not entitled as per Section 87(1) of the CCA 1974 that the debtor in accordance to with section 87.1 issue a default notice before the creditor or owner can become entitled.

 

Im getting confused now.

Edited December 6, 2021 by dx100uk
unnecessary previous post quote removed

[AndyOrch]

Quote

The default notice dated 02 December 2015 (Exhibit 1) states that the Account balance of £2144.88, the Credit Limit is £2000, thus the arrears on the account are £144.88, not the £200 as stated in the letter.

 

So the DN requests £144 to rectify the breach ?   What letter are you referring to above requesting £200 ?

[king100]

So default notice says

 

Your account balance is £2144.86

Your credit limit is £2000

The arrears on the account are £200

 

This can be remedied if you submit a payment sufficient to clear the arrears.

Edited November 29, 2021 by king100

[dx100uk]

i suspect the notice of default that came with the dn, the usual cover letter vanquis send out

its say payment due is £200 . the dn says arrears £200 but also only that the card is only £144.88 overthe credit limit

 

here

 

default notice.pdf

[AndyOrch]

Okay yes that's invalid...Vanquis never quite understood the difference between a DN and Notice of Default.

[king100]

Andyorch

 

Been along day already, need to send the paperwork tomorrow as court date is 15th. Tried ready 87 and 88 but cannot see the reason why it would be invalid. As Dx says i need to find out myself so can argue in court, but i honestly cant see why.

 

Only thing i can see it says

 

Notice of default and then says formal notice of default. Then on thr other side says this is a default notice.

 

All ref numbers at the bottom match.

Edited December 6, 2021 by dx100uk
unnecessary previous post quote removed

[AndyOrch]

Okay I see why your having difficulty understanding why it invalidates the DN. Its not clear in section 87/88

 

The failure of a Default Notice to be accurate not only invalidates the Default Notice (see Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would prevent the Court enforcing any alleged debt. That is because the agreement was terminated on an incorrect amount stated.

 

 

The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983

WWW.LEGISLATION.GOV.UK

---

These Regulations prescribe the form of the notices which have to be given under sections 76, 87 and 98 of the Consumer Credit Act 1974 by a creditor...

 

 

 

 

[king100]

 

whats the incorrect amount? The £200?

 

Would this be no 14 in witness statement?

Edited November 29, 2021 by dx100uk
unnecessary previous post quote removed

[AndyOrch]

The DN is overstating the amount of arrears by £142.88...and yes you can edit your point 14 to reflect the invalid default notice and why it invalidates their claim.