JCI/BW Claimform - old Omni Capital Retail Finance Loan for Training program but provider went bust

[AndyOrch]

You say your at the bundle stage.....I assume you are preparing or have already prepared your witness statement with disclosures ? In line with your Notice of allocation and the courts directions.

 

Can you upload a copy of your statement and the claimants statement along with any disclosures (all fully redacted )

 

Andy

[clarity99]

At that stage of a preliminary hearing and bundle to produce, hence my late call into the group.

 

If as DX has said, I'm on the wrong route, what would be the best way of dealing with this with the limited timeframe?

 

My plan before my post was:

i) struck out for suing non-entity  (accepting they may simply re-issue)

ii) claim Section 75 'protection' - from Assignee

 

BUT as the Assignee has claimed rights and benefits but not obligations as per Mantis suggestion also now go for a seperate filing against Assignor.

 

If I'm completely way out, please say and if you can give any direction that really would be great.

 

C

 

 

 

[AndyOrch]

Completely way out ...name change is de minis and easily corrected......defence questioning the assignment onto a loser.

 

Quote

Can you upload a copy of your statement and the claimants statement along with any disclosures (all fully redacted )

 

 

[clarity99]

Thanks Andy

 

Easily corrected without re-issue?  Then can I rely on my "embarrased defence" to produce a robust defence?

 

I haven't produced a WS yet, only ~80 pages of correspondence which probably now won't form the WS. There is a financial statement from Assignor which is how I know when the default occurred and assignment took place. A SAR produced lots of correspondence most of which is for the first time and includes a statement from the Assignor dated a week ago, that also hadn't been received.

 

I genuinely appreciate you spending your time on this, and happy to accept criticism and pointing out what I've got wrong but it isn't the same as helping direct me to what I need to change to get it right.............  do you agree with Mantis Shrimp's suggestions?

 

 

[AndyOrch]

And did the original creditor file and serve a Default Notice on you pursuant to section 87(1) of the CCA1974 ?

 

You state no in the link questionnaire I asked you to complete.......that's really all you need to defend this claim apart from the obvious that a service was never provided.

Forget the Assignee....a debt buyer that knows absolutely nothing about the debt, the history, the default, they simply bought a disputed debt for pence in the pound.

 

With regards to section 75 ...you have not made any payments.....you have suffered no loss....where does a section 75 come into this ?

[clarity99]

Thank you Andy

 

Definitely no Default Notice from Assignor or the Assignee... so that's a one line defence, thank you

 

So with s75 as Shrimp is being sued for the full loan paid direct to Provider, if they're expected to pay then the Assignor/Assignee should provide a suitable alternative ie they're responsible per s75........ have I got this wrong and s75 will only apply if the Assignee is successful in Court and Shrimp has to pay and is then in loss?

 

As it is the Assignee who is suing..... can any of the defects with the Assignor be used in my Defence?

Does the Assignee also need to serve a Default Notice?

 

Edited January 29, 2022 by clarity99
clarity

[AndyOrch]

12 minutes ago, clarity99 said:

Thank you Andy

 

Definitely no Default Notice from Assignor or the Assignee... so that's a one line defence, thank you  The assignee cant issue a default notice as the agreement was most probably already terminated on the sale of the debt (asssignment)

 

So with s75 as Shrimp is being sued for the full loan paid direct to Provider, if they're expected to pay then the Assignor/Assignee should provide a suitable alternative ie they're responsible per s75........ have I got this wrong and s75 will only apply if the Assignee is successful in Court and Shrimp has to pay and is then in loss?

 

Section 75 only applies to the party that made payment to the provider...that not being the defendant in this claim

 

As it is the Assignee who is suing..... can any of the defects with the Assignor be used in my Defence?

No because the assignor (the original creditor) has sold the debt and is no longer responsible ...the assignee is now the legal owner and claimant and owner of the debt and all its obligations.

12 minutes ago, clarity99 said:

 

 

 

[AndyOrch]

What date must you file and serve and exchange witness statements by ?

 

I would suggest you start your draft now and post it here for checking/tweaking .

[clarity99]

Monday

please delete

Edited January 29, 2022 by clarity99

[clarity99]

18 minutes ago, Andyorch said:

Section 75 only applies to the party that made payment to the provider...that not being the defendant in this claim

75 Liability of creditor for breaches by supplier.

(1)If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.

 

I'm confused, if this is a CCA retail finance agreement used to purchase a training course and the course wasn't provided, how can Assignor chase debt but not be required to meet their s75 obligations?

 

Monday

 

Edited January 29, 2022 by clarity99
clarity

[AndyOrch]

Because the the assignor is now the legal owner of the debt and the one at loss....what obligations are you referring to ?

 

Re your statement you better get your skates on then today and get a draft to me pronto.....you really need to drop this obsession with the assignee and obligations...the obligation mostly fell away when the Original creditor sold the debt.

 

You  or your son are not party to any section 75 reclaim for monies...section 75 only covers monies paid on a credit card by a consumer to a business.

[mantis shrimp]

Andy, respectfully I disagree. The assignor can (and probably should) be brought into the case as defendant to a Part 20 claim under s75. ss11 and 12 appear to bring this within s75. 

Edited January 29, 2022 by mantis shrimp

[AndyOrch]

Yes I take on board that is legally feasible but this is a small claim track claim and would rather over complicate matters when the claim can easily be defended on the facts provided. Also that ship has sailed and permission would be required to submit a Part 20 and add a party to the claim now given that acknowledgment and defence has been submitted and claim allocated and a statement is due by this Monday. 

 

Assignee claims are easily defended because they simply lack the knowledge of disputed debts and what the original creditor has provided in following the correct legal process to enable a valid claim by an assignee.

 

In this case...as far as I'm aware no Pre Action Protocol followed no Default Notice ever served, breaches of the Consumer Rights Act 2015 as a service was never provided by the dissolved company.

 

I cant see any court awarding judgment for debt given the facts above.

 

Best to keep it simple mantis.

 

Andy

[clarity99]

OK- so I now see that s75 applies to credit cards and there wasn't any payment made by credit card.......so no protection there.

 

There is the linked agreement I posted that provides similar protection.......

 

Andy- are you saying there is NO defence to an assigned debt?

 

C

 

 

[clarity99]

4 minutes ago, Andyorch said:

Absolutely not.....read my last few posts.

 

Sorry Andy - was typing up

 

 

Edited January 29, 2022 by clarity99

[AndyOrch]

There are section within section 75 that would make the original creditor liable and party to the claim as stated by MS...but we are too far down the road now given the lack of time to invoke that option and would involve further expense on your part.

 

Quote

Andy- are you saying there is NO defence to an assigned debt?

 

Absolutely not.....read my last few posts.

[clarity99]

So my bulleted defence is:
 

i)  No Defualt Notice served on Defendant by Original Creditor

ii) failures by Original Creditor renders the assignment defective?

iii) Service never provided by Provider... now liquidated

iv) Claim should be dismissed

 

any more than that?

 

 

[AndyOrch]

More or less.......was pre action protocol followed ?

 

Quote

ii) failures by Original Creditor renders the assignment defective?

 

No the assignment is legally valid and very rare you will prove this otherwise...failure of the original creditor to serve a valid default notice renders the claim invalid by the assignee because of  section 87(1) CCA1974.

 

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.

 

 

Consumer Credit Act 1974

WWW.LEGISLATION.GOV.UK

 

 

 

Now with the above in mind have a go at your draft witness statement and get it posted here.

[clarity99]

Edit- Oh dear- just re-read the Subject Access Request file from Original Creditor and it produced copies of "Sums in Arrears - 09072018" and a  "Notice of Default -  07092018" - none of these were received.

 

 

 

[dx100uk]

Forget whats in the sar from the oc

the claimant must produce the nosia and the dn as exhibits, or atleast have concrete proof they were sent. And that does not mean a printout from sone database.

 

so as asked ages ago to see it all and  resisted ...what exhibits are in their ws

[AndyOrch]

And a copy of their WS if you have received it.

[mantis shrimp]

1 hour ago, clarity99 said:

OK- so I now see that s75 applies to credit cards and there wasn't any payment made by credit card......

 

but not just credit cards! See ss 11 and 12 CCA 1975.

[clarity99]

thanks Mantis - it was my error all along. It should always have read as  s75a not s75 as this is a linked credit agreement!

 

My apologies to all ......

 

C

 

 

 

[clarity99]

scrap that last remark

 

 

 

 

[dx100uk]

if you want to move this forward and understand your claimant properly.

 

type in JCI Claimform

in our enhanced google search box.

 

and you'll see lots of information and how we defended, constructed witness statements and in many cases won.

 

no DN? yours it appears is no diff

 

but ....we've still not seen their WS yet, please get it up.