Cabot/Mortimer claimform 2019, autostayed - old New Day Aqua Debt - now docs + threatening to lift the stay - *** Claim Dismissed***

[Atoll]

@Andyorch thank you   will stop reviewing for now and go back to it tomorrow with a clear head. 

 

Still have a few days till I need to submit final version - hearing is Tues 8th March so was going to submit next Thurs 24th Feb (via recorded next day plus via email to court). 

 

Do I need to submit any of my 'evidence/copy letters etc' at this stage or does this wait until trial.

Edited February 18, 2022 by dx100uk
added A few blank lines only..dx

[AndyOrch]

Any document that you may have referred to and wish to rely upon as evidence within your statement must be marked (See Exhibit A/b//c etc) and attached to the statement along with a cover index is there are numerous exhibits. 

 

 

 

.

[Atoll]

Here is final version.  Be grateful if someone could take a look/check my points of law before I send off.  Many thanks  

 

WS 3.pdf

[AndyOrch]

Yes.....although not " enclosed at page ??? ".....as previously stated (See Exhibit A/B/C etc etc)

[Atoll]

Hi .. have my hearing on Tuesday, so just pulling together my skeleton notes which I can refer to...

 

Claimant has sent through an application form which seems to have been 'made up'  claiming its the agreement but its missing some of T&Cs and there is no credit agreement reference number - can I use these as  valid arguments? 

 

If I lose, claimant is going for a charging order - can I oppose this at this stage or do I need to wait until they make application? 

 

Many thanks 

 

 

 

[AndyOrch]

If it invalidated the agreement then by all means....assuming you have already argued this in your statement ? 

You cant really oppose a charging order application to secure a judgment im afraid..... its a fait a accompli and a way of securing a judgment.

[Atoll]

OK cool,  yes I did raise this in my WS... think it's just last minute nerves - just want to get it done now. 

[Atoll]

@Andyorch so I have my hearing this afternoon and Mortimer have just submitted this to the court TODAY ...  I didn't think this was allowed...

 

In readiness for the forthcoming hearing today at 15:00, please find attached the Claimant’s response to the Defendant’s new arguments raised in their witness statement.

 

 

[dx100uk]

if  it plays a part you tell the judge it was only received by you at time today and should be either disregarded or the hearing be adjoured to a later date to allow you to properly digest its contents.

 

what have they sent please?

scan it all up .

 

dx

 

[Atoll]

Latedocs.pdf

[dx100uk]

Defendant does not deny entering the Agreement

 

you did not say that!

 

the Defendant has been provided with a screenshot from the original
creditor’s system which shows the date on which it was sent

 

so still no Default notice then..just some page from some data base system with a page they claim shows that collltrs is a DN??

the online application form has an IP address the defendant does not recognise 

which comeback to LLoyds banking group !!

[AndyOrch]

its a letter to you not the court ...inadmissable cant be used as evidence.....not in the format of a Supplemental witness statement.

[Atoll]

Little victory today as claimant didn't get summary judgement ... Judge not happy re screenshot of a database system.    Claimant has been ordered to provide compelling evidence of DN

 

Judge also didnt allow their late note as evidence 

 

Now allocated to small claims track.

Edited March 8, 2022 by Atoll
Small amend

[AndyOrch]

 Inadmissible ...and by no means a little victory...defending an application for summary judgment is huge.

 

So now you wait for your Notice of allocation N157 and start to prepare for a hearing.....assuming they wish to continue...if a Summary Judgment application fails then its not looking good for a full hearing.

 

Andy

[Atoll]

Morning, have now received Notice of Allocation N157 ...  would be grateful if someone could give me some of advice on how to set out my WS as per the Court ordered limitations 

Notice of Allocation N157.pdf

[AndyOrch]

Example WS

 

Witness Statement Katy.pdf

 

When drafting your response take into account your initial defence....what you gleaned from the application hearing the claimants arguments and concentrate on the default notice issue...post up your final draft for opinion.

 

Andy

[Atoll]

Hiya, here's my first draft ...if someone could review please  

 

Claim No. xxxx

BETWEEN:
xxxx

AND

Defendant
xxxx
_________________________________________

WITNESS STATEMENT OF xxxx
_________________________________________

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

I make this WITNESS STATEMENT in support of my defence to this claim.

 

Introduction

 

1.      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 issues claims to circumvent and claim the full amount of debt with costs to maximise profit. 

 

2.      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 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 the a third party.

 

3.      It is noted that the case handler responsible for the draft of the claimants witness statement confirms that the evidence from his own knowledge derived from his conduct of this action and from documentation supplied to him from the claimant.  It will be expected that this person will be in attendance to verbally give this evidence or give notice pursuant to Section 2 of the Civil Evidence  Act 1995 and CPR33.2(b) giving the reason why the witness is not in attendance.

 

Background

 

4.      The Claimants claim relates to an credit card agreement regulated by the Consumer Credit Act 1974 between the Defendant and New Day Ltd RE Aqua.  Whilst it is accepted that the Defendant has in the past had financial dealings with New Day Ltd RE Aqua , on receipt of the claim the Defendant could not recall the precise details of the agreement or any debt and sought clarity from the claimant.  The Defendant was unaware of any notice of assignment, nor had the Defendant been issued with a default notice, pursuant to section 87 (1) CCA 1974.

 

5.      On 15^th August 2019, the Defendant received a claim form issued by the County Court Bulk Centre, Northampton, for the amount of £8369.47.  The claimant contends that the claim is for the sum of £8369.47 in respect of monies owing under an alleged agreement pursuant to The Consumer Credit Act 1974 (CCA).  No agreement number was included within the claimants particulars of claim.

 

6.      The Defendant made a CPR 31.14 formal written request to the claimant and the claimant’s solicitor.  The claimant failed to respond.  On 10^th September 2019 the Defendant filed a defence on MCOL.   The claimant and claimant’s solicitor failed to respond and the county court proceedings at Northampton CCBS were auto-stayed.  The defendant received no further correspondence from the claimant or the claimant’s solicitor until 12 January 2022.

 

7.      The Defendant received a reply from the Claimant’s solicitor dated 12^th January 2022 which enclosed a reconstituted copy of an agreement, a “screenshot” allegedly evidencing Default Notice was sent, statements of account provided by original creditor, notice of assignment from NewDay Ltd to Cabot Financial (UK) Limited and a statement of account provided by the Claimant’s solicitors which the claimants provided in their witness statement dated 14^th January 2022.

 

8.      On 26^th January 2022, the claimant made an application to lift the stay on proceedings and request summary judgement.  The summary judgement hearing took place on 8^th March 2022 where it was determined the only outstanding issue for the Court to consider in connection with this matter was whether a default notice in accordance with Section 87 and 88 of the Consumer Credit Act was served upon the Defendant and if so, the amount that the Claimant can have judgement for.  The Court has requested both parties to file witness statements and evidence in support of this position limited to the service or otherwise of a default notice

  

9.      It is noted the Claimant has confirmed in their witness statement dated 14^th January 2022, copies of the Default Notice or related documentation are not available.  

 

10.   To date no valid full true copy of the executed agreement containing the full terms and conditions have been disclosed.

 

11.   To date no valid full true copy of the original Default Notice in the prescribed form, specifying the nature of the alleged breach, if the breach was capable of remedy, what action was required to remedy it and the date before which that action was to be taken, and if the breach was not capable of remedy, the sum required to be paid as compensation for the breach, and the date before which it was to be paid in accordance to Section 88 Contents and effect of default notice. 

 

12.   The Claimant has disclosed a “screen shot” allegedly taken from the originators database system which they claim shows COLLLTRS 0013 is a Default Notice and was sent on 20^th July 2018.  There is no tangible positive evidence from any witness from New Day RE Aqua that COLLLTRS 0013 is a Default Notice.  The account number reference xxxxxxxxxxxx shown on the “screen shot” does not correspond to the account number reference on any of the credit card statements, nor does the “screen shot” provide any evidence that the alleged Default Notice complied with Section 87 and 88 of the CCA 1974 i.e. prescribed form, details of the alleged breach and amounts required.

 

13.  The Claimant has disclosed credit card statements which show regular monthly payments made up to and including May 2017 however the Defendant can evidence further monthly payments were made between June 2017 up to and including June 2018 (See Defence Exhibit XXX page XX)

 

14.   The Claimant has disclosed a statement of account dated 14^th May 2019 for the amount of the claim £8369.47 but has not provided a detailed breakdown of how this amount has been calculated.

 

Conclusion

 

15.   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 owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement to enforce an agreement.

 

16.   The claim brought by the claimant is spurious and speculative.  The Claimant does not have possession of the correct valid paperwork and this is an attempt to mislead and convince the Court that the Claimant can disclose the legal valid documents on which its claim relies on.  It is therefore requested the Claimants Claim is struck out for the above reasons.

 

Statement of Truth

 

I, xxxxxxxxxx the 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 ………………………

 

Print Name xxxxxxxxxxx

 

Dated: xxxxxxxxxxx

 

[AndyOrch]

I've made  just a few tweaks and formatting issues above......looks good.

 

Andy

[dx100uk]

Is it worthy to note that all the lines in the default notice screen shot state COLLLTRS. How are they claiming their one hi-lighted line is the DN?? They can't all be DN's as the OC would not issue so many, so none are a DN?

 

 

[Atoll]

Yes good point, they claimed at the summary judgement hearing it was the '0013' reference which apparently made it a DN .. but they haven't produced any evidence to back this up only hearsay from Newday Ltd 

[dx100uk]

On 08/03/2022 at 12:02, dx100uk said:

the online application form has an IP address the defendant does not recognise, which comes back to Lloyds Banking group, no any device I have ever used

Also needs including IMHO.

 

Dx

[Atoll]

Quick question, I have to supply copy bank statements showing payments to Aqua - and I've highlighted these  ... do I or should I redact all the other transactions on the statement? 

[dx100uk]

Is this to do with your point 13?

Is it wise to even include that let alone redacted bank statements as thats admittance of the debt?

[Atoll]

Yes it is .... at summary judgement the DJ ordered that I submit them ... I had said that it was my legal right to question the claim, as the claim was not about whether I borrowed the money, it was about the claimant who had bought the debt for pence and whether they can legally bring the claim.

 

[dx100uk]

Ok understood, then blank everything else 

 

Dx