Cabot/Mortimer claimform - old 2003 Lloyds Loan -stayed - Now n244 to lift stay-Summary Judgment

[sxam]

Hello DX, 

Now what should be my counter to all these as I need to submit all these late by Monday 

 

Thanks

Edited June 23, 2022 by dx100uk
unnecessary previous post quote removed

[dx100uk]

Just type no need to hit quote.

 

nothing you need to counter...

but you must get the timeline clear and ensure you are explaining and questioning all you need to too strengthen your case.

[AndyOrch]

At a glance it looks fine...is there anything in particular you are not sure about..?  Your statement of truth is now out of date you need to update this with the new CPR version.

 

Andy

[sxam]

Do I need to respond to each and every paragraph from their WS? Some of the paragraphs are correct, should I just ignore those paragraph or say is admitted? 

[AndyOrch]

If you are in agreement with a paragraph and it renders nothing detrimental to your case I normally just respond with paragraph x is noted. 

[sxam]

Hi Andy

 

Can I write this on the conclusion part? They did provide which looks looks a valid CCA but they do not have original default notice. I am confused weather to mention section 77, 87 and 89 or just the faulty default notice part.

 

"Conclusion

 

In view of the information set out above I respectfully submit to the court that the claimant’s application be denied. The claim remains stayed until such time the claimant can comply with section 77 of the CCA1974 and section 87 and 88 of the CCA 1974 or in the absence of that compliance strike out the claimant claim and dismiss the claim in its entirety."

 

Hopefully the final one, Thanks.

Claim No. xxxx

BETWEEN: xxxx

 

AND

 

 Defendant xxxx

 _________________________________________

 WITNESS STATEMENT OF xxxx

 _________________________________________

 

 I xxxxx, being the Defendant in this case will state as follows;

 

1.       I make this Witness Statement to oppose the claimant application dated 02 February 2022 to lift the stay and Strike Out Defence/Summary Judgment pursuant to CPR 24.5 (1) a&b in view of my defence submitted to the claim dated 27 January 2021

 

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. They then issue 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.       It is admitted that I have had financial dealings with Lloyds Banking Group in the past but on receipt of this claim I was unsure of the agreement and any alleged balance or ever been contacted by Lloyds Banking in connection with any outstanding debt.

 

6.       The claimants issued this claim through MCOL Northampton on 29 January 2021 to which I submitted my defence and the claim has remained stayed. The claimants made application dated 12 May 2022.

 

7.       On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity from the claimant. I was unaware of any notice of assignment, nor had I been issued with a default notice, pursuant to section 87 (1) CCA 1974.

 

8.       On 8 February 2021, I made a CPR 31.14 formal written request to the claimant and the claimant’s solicitor.

 

Defendants Response to claimants claim/ Application

 

9.        Paragraph 5. The claimant claims that the agreement was entered into on the 13 May 2003. On receipt of this claim I requested by way of a section 78 request dated 08/02/2021 a copy of the agreement and Terms and Conditions and statement. The claimant never responded, and the claim was stayed. See Exhibit xxx

 

10.   Paragraph 6 of the claimant’s statement confirms that they do not hold a copy of the Default Notice and wish to rely on a screen shot confirming the date it was allegedly issued. 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.

 

Sec 87 Need of 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

 

Sec 88 Contents and effect of default notice

1.       The default notice must be in the prescribed form and specify

a)      The nature of the alleged breach

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

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

 

 

11.   Paragraphs 7 confirms that payment received to the account however the statement of account is not original and creditors been recreated. The sum does not match the money paid to Apex. Please see Exibhit xxx.

Last payment to Apex was on xxxx and no further payment has been made since. See Exhibit xxx. On 27/09/2017, I made CPR 31.14 formal written request to Apex and Lloyds (See Exhibit xxx) to provide true copy of the credit agreement relating to the account. Both apex and Lloyds failed to comply with my lawful request hence the account was in default. 22 months later, account was subsequently sold to Cabot on 29 July 2019

 

12.   Paragraph 8 claims that absolute all amount due to Lloyds Banking Group was sold to Cabot on 29 July 2019, however the total debt purchased does not match the outstanding debt with Apex at the time account was put on hold following my CCA request. See Exhibit xx

13.   Paragraph 9 is noted but not accepted. It is denied that I was ever served a Notice of Assignment pursuant to sec136 of the LoP and will contend that the exhibit marked 15 & 16  is a mocked up template.

 

14.    Paragraph 10 is denied. I was not aware of any assignment nor ever requested to make payments by Cabot. This account was handled by Apex Credit Management and was in default since they failed to comply with my lawful CCA request. Claimant exhibit xxx Notice of assignment is a new template with the details added

 

15.   Paragraph 12 simply confirms my Defence which puts the claimant to strict proof. I will contend that it is disappointing that the claimant can only disclose templates and cut and pastes and screen shots that have no legal valid connection to any agreement.

 

16.   Paragraph 13 is noted but irrelevant if a valid copy of default notice cannot be disclosed on which the claimant claim relies upon.

 

17.   Paragraphs 16 is denied, I am not aware of any letters pre litigation from the claimant and again I would suggest that they are a form of template with dates added to pad out the claimants bundle.

 

Conclusion

 

In view of the information set out above I respectfully submit to the court that the claimant’s application be denied. The claim remains stayed until such time the claimant can comply with 87 and 88 of the CCA 1974 or in the absence of that compliance strike out the claimant claim and dismiss the claim in its entirety.

 

Statement of truth

 

I, XXXXXXX defendant, believe 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.

 

Signed: ...................................................

[AndyOrch]

Have we got a copy of the CCA here on your topic ?

[sxam]

It’s on #27

[AndyOrch]

Ah yes I see responded at the time you posted...unfortunately its a good one...so yes I would refrain in your conclusion with regards the CCA and replace with the DN and sections 87/88

[sxam]

That's what I thought hence removed the 77 part. Good to go Andy?

Is this all I need along with Exhibits to go to Court and copy to Claimant Solicitor?

 

[AndyOrch]

Conclusion

 

In view of the information set out above I respectfully submit to the court that the claimant’s application be denied. The claim remains stayed until such time the claimant can comply and disclose a copy of the Default Notice pursuant to sec 87 and sec 88 of the CCA 1974 that service or in the absence of that compliance strike out the claimant claim and dismiss the claim in its entirety.

 

Just a few tweaks yes attach your exhibit's numbered then file with the court and serve on the Solicitor..retain a copy for your file.

 

[sxam]

Thanks Andy, One last thing.

Whats the best way to mark (enter) exhibits at the bottom of the each page and number them?

[AndyOrch]

I just mark it on the statement after the paragraph (see exhibit xx)  and mark the same number on the exhibit 

[sxam]

Can I take a photocopy and hand write it? Trying to think of best way to enter the detail.

[dx100uk]

Yes if you mean exhibit number

 

Dx

[sxam]

Hello All,

I’ve got these letters from Claimants Solicitor.

how is the best way to reply them? By the way my hearing is on 28th June

Scan 23 Jun 2022 at 10.21.pdf Scan 23 Jun 2022 at 10.23.pdf

Edited June 23, 2022 by dx100uk
unnecessary previous post quote removed

[AndyOrch]

why do you intend to reply...standard procedure to serve notice of costs pre hearing .

 

 

 

.

[sxam]

Sorry Andy, I was meant to say, do I prepare my cost sheet as well or its only  done by the claimant.

[AndyOrch]

Costs are normally determined at the conclusion of a claim but because this is an application for Summary Judgment its standard for the claimant submit its costs incurred by the application. But you will see they have included their total costs of which £410 issuance and £ 100 Sols fee are already on the claim form so if they get judgment that will auto be included in the judgment make sure that's not duplicated.

 

Its your choice if you wish to submit costs in defending the application and claim

[AndyOrch]

Also if their application is dismissed...then so are the costs incurred for the Summary Judgment hearing.

[sxam]

Thank you  all. If by any chance the case goes for hearing is there any particular things I need to say in front of the judge

[dx100uk]

just type in the reply box there is no need to hit quote each time.

 

 

[sxam]

Hello All,

 

Till today I haven’t got any response from either court or claimant, so definitely I think we are going for hearing. Is there any particular things that I need to say in front of the Judge

[AndyOrch]

Refer to your witness statement and if needs be draft a short skeleton argument for your use to refer to any bullitt points.

 

 

.

[sxam]

Hi Andy,

Thats exactly what I was thinking to stick to my statement but are there anything out of context I need to put infront of judge?