Carter/lowells claim form HBOS loan - help

[Andyorch]

Point 2 refers to a facility...that's an overdraft and are you sure you deny entering to an agreement ?

[N-Hope]

I will remove the facility also remove i deny entering an agreement....

[N-Hope]

Thanks Andy, I have removed it......

[N-Hope]

Please Andy, is that all i have to do....

[Andyorch]

Okay here is another example...personal loan/credit card...see if there is anything of use.......

 

 

In the ………County Court

 

 

Claim number ………….

 

Between

 

 

MKDP LLP

 

and

 

 

……………………..

 

 

Witness Statement of ……………………………………….

 

I am the defendant in the above case and appear before the court as a litigant in person.

 

1. Early in xxxx whilst I was still living at home with my parents at xxxxxxxx xx I was given a credit card to run along side my current account with HSBC. I cannot recall ever completing an application form to obtain this credit card or signing any agreement associated with it. At this time I was aged xx years old.

 

2. Early in xxxxx 2007 because of personal and financial problems I was unable

to continue making payments to this account. I have no original

documentation relating to this account..

 

3. To the best of my knowledge I have received no documentation since 2007

regarding this account in any form until xx xxxx 2013 when I received a

County Court Claim Form from MKDP LLP. Prior to this I had received no

correspondence from MKDP LLP

As a result of this claim I submitted my defence via MCOL. (xxxx refers)

 

4. On the 2nd May 2013 I sent a request to MKDP LLP under CPR 31.14. This

was sent by recorded delivery and was delivered to MKDP LLP on 7th May 2013. I refer to a copy of this letter and proof of delivery as xxxx.

 

5. On the 2nd May 2013 I sent a Statutory Access Request to HSBC Bank

with the appropriate fee requesting copies of all data that they held relating to

myself. ( xxxx refers)

 

6. On the 20th May 2013 I sent a reminder to MKDP regarding my previous request under CPR 31.14. This was sent by recorded delivery and was

delivered and signed for on the 21st May 2013. (xxxx refers)

 

7. On the 23rd May 2013 I sent a request to MKDP LLP pursuant to S.77/78

of the Consumer Credit Act 1974 requesting statutory information in relationship to the account in question. This was sent by recorded delivery and was delivered and signed for on the 24th May 2013. (xxxx refers)

 

8. I received a letter dated 28th June 2013 from HSBC Bank on HFC headed

paper stating that they were unable to action my request as my letter was unsigned and they were unable to locate any accounts with the information I had provided. (xxxx refers). HFC are a subsidiary of HSBC bank.

 

9. As a consequence of the letter in Paragraph 8 I sent a further Statutory

Access Request to HSBC Bank on 2nd July 2013 with the appropriate fee.

(xxxx refers)

 

10. I then received a further letter dated 16th July from HSBC Bank again

stating that they were unable to locate an account for me with the information I had provided. (xxxx refers).

 

11. Mediation regarding this claim took place on the 9th August 2013 with no

progress being made to settle the claim against me.

 

12. I had not received any correspondence from MKDP LLP in response to my

requests under CPR 31.14 (dated 2nd May 2013) and s.77/78 Consumer Credit Act 1974 (dated 23rd May) 2013 until xxx January 2014 when I received a package from them with a covering letter dated xxth January 2014 suggesting that I now withdraw my defence. The documents contained in the package are as follows:

a. Covering letter (xxxx refers)

b. Copy of a ‘reconstituted agreement’ which is in fact a copy of a

generic ‘Credit Card Request Form’ with only my name and an address on it. (xxxxx refers).

c. Copies of three sets of ‘Credit Card Agreement Forms’ (xxxxx refers).

d. A generic ‘Default Notice’ with no details on (xxxxx refers).

e. Copies of statements dated 29th May – 25th October 2007 (xxxxx refers))

c) Copy of letter on HSBC headed paper dated xx xxxx 2012

informing me that my account had been sold by HSBC to MKDP LLP.

(xxxxx refers)

 

13. I will now refer to my defence in this case (xxxx)

 

14. It is my belief that any agreement I may or may not have had with HSBC

Bank and latterly MKDP LLP is subject to Section 5 of The Limitation Act

1980 (xxxxx) refers. To the best of my knowledge in excess of six years have elapsed since the date on which any cause of action for breach

accrued for the benefit of the Claimant. To the best of my knowledge my last payment on this account was made on the 21st March 2007. The statements provided by MKDP LLP in relation to this account (xxxxx refers) only show transactions from 23rd May until 25th October 2007. It can be seen that there has been no activity on the account by me during this period. Without a full set of statements for the account it is impossible to see when the last acknowledgment of the account was in fact made and when the cause of action occurred.

 

15. Notwithstanding the above the Claimant has failed to show how I have

entered into an agreement with MKDP LLP (formerly HSBC Bank).

In response to my requests under CPR31.14 (xxxx refers) and S78 CCA

1974 (xxxx refers) I have been sent a reconstituted agreement (xxxxx refers). This consists of a generic HSBC Credit Card Request Form with no details on

it apart from the name xxxxx xxxx and the address xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxThis address

would not be correct as in 2003 when this account would have started I

was still living with my parents at xxxxxxxxxxxxxxxxx. I think I moved to

xxxxxxxxxxxxxxxxxxxxxxxxxxx sometime in 2004.

S.127(3) of The Consumer Credit Act 1974 as amended by S.15 Consumer

Credit Act 2006 (xxxx refers) provides that a court shall not make an

enforcement order (i.e. a consumer credit or hire agreement will be

automatically unenforceable) where: prescribed requirements in relation to

the execution of regulated agreements (set out in section 61(a) of the 1974 Act)

(xxxx refers) were not complied with or a document containing all the

prescribed terms of the agreement was not signed by the debtor or hirer. The

reconstituted agreement that has been supplied to me does not meet these

requirements and without sight of the original agreement it is impossible

to know whether S61(a) has been complied with or not. I also note

that the interest rate shown on the ‘Credit Card Agreement Terms’ marked

Original Terms (xxxx refers) is 1.456% with an APR of 18.9% whereas the

interest rate shown on the statements sent to me is 1.527% with an APR of

19.9%. I can find nothing in the documentation sent to me to show that the

interest rate has been increased suggesting that the ‘Credit Card Agreement

Terms’ marked as original terms are not the correct terms and conditions that

should have been supplied to me if and when an agreement was signed.

I am aware that S15 Consumer Credit Act 2006 repeals S.127 (3) to (5)

Consumer Credit Act 1974 but paragraph 11 of Schedule 3 of the 2006

Act (xxxx refers) states that this has no effect in relation to improperly

executed agreements made before the commencement of S15 of this Act.

This agreement would have commenced prior to 6th April 2007 when the

2006 Act became law.

 

16. With regard to the copy of the letter informing me that the account had been

sold by HSBC to MKDP LLP (xxxxx). To the best of my knowledge I have

not seen this letter before. I was unaware of the existence of MKDP LLP

prior to the receipt of the County Court forms.

 

17. As stated previously the statements sent to me by the Claimant (xxxxx) do

not show the history of the account and how the total has been reached.

In addition to showing the last date the account was used, sight of all the

statements relating to the account would also show the interest rate on the

account at its inception.

4.

 

18. The copy default notice sent to me (xxxxx refers) is a generic copy

containing no details relating to this account. S.87(1) of The Consumer Credit Act 1974 (xxxxx refers) sets out the need for a default notice to be served in order for the creditor to be able to a) terminate the agreement b) demand earlier payment of any sum c) to recover possession of any goods or land d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred and e) to enforce any security. This notice must be in the prescribed form as per S.88 of the same act (xxxxx refers). To the best of my knowledge no such default notice has ever been served on me.

 

19. To date MKDP LLP have not provided me with any documentation to prove

their case against me.

 

 

 

I believe that the facts shown in this statement of four pages are true.

 

 

 

…………………………

 

Dated

[N-Hope]

Thanks

[N-Hope]

Hi Andy, please help to check if ok... thanks

 

IN THE county court of XXXXXXX CLAIM NO:

 

BETWEEN:

LOWELL PORTFOLIO I LTD Claimant

-and-

Defendant

 

WITNESS STATEMENT OF xxxxxxxx

 

I. xxxxxxx the defendant in this claim appear before the court as a litigant in person make the following statement believing it to be true will state as follows:-

 

2.It is admitted that I have in the past had financial dealings with HBOS .

 

3. To the best of my knowledge I cannot recall the alleged debt in question and I have not received any documentation since xxxxx 2011 regarding this loan in any form until xx xxxx 2014 when I received a County Court claim form from claimant solicitor (BC). Prior to this I had received no correspondence from the Claimant. As a result of this claim I submitted my defence via MCOL. (xxxx refers)

 

4.Therefore to enable to verify this claim, on the xxxxx I sent a request to claimant solicitor under CPR 31.14. This was sent by recorded delivery and was delivered to xxxxx on 7th May 2014. I refer to a copy of this letter and proof of delivery attached. I requested for information pursuant to CPR 31.14.

 

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

 

And to show how the claimant has legal right either under statute or equity to issue a claim in their name. Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

 

 

As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed and disclose all documentation relied upon as the basis of their claim at trial also ensure that the original are available.

 

5. On the xxxxMay 2014 I sent a request to xxxx pursuant to S.77/78

of the consumer credit Act 1974 requesting statutory information in relationship to the account in question. This was sent by recorded delivery and was delivered and signed for on the xxxx May 2013. (xxxx refers)

6. The correspondence from the claimant in response to my

requests under CPR 31.14 (dated 2nd May 2013) and s.77/78 Consumer Credit Act 1974, the claimant have stated that they are under no obligation to disclose any documentation on which their claim is based on.

 

7. It is denied that I was informed of assignment of this debt neither by the original creditor nor the assignee.

For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136)

Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned.

The assignment must be absolute.

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

 

Again it is denied any Notice of Assignment was ever received.

 

 

8. It is in my opinion that the claimants claim is fanciful contains no proof, and uncorroborated. Totally unaware of the details of debt they have purchased and expecting judgment/relief be granted, relying on the court to base its decision on assumption and basis of probabilities.

 

It is therefore submitted that the claimants be ordered by the court to quantify, verify, substantiate and disclose all evidence relied upon and should the claimant fail to that, their claim be struck out under CPR 3.4 as having no basis.

 

I believe that the facts stated in this Witness Statement are true.

 

Signed ……………….

 

November 2015

[Andyorch]

In the main its okay...but it lacks the reason why you stopped paying or any reason of dispute.

 

You admit having had in the past had financial dealings with HBOS.....okay

 

But you then don't expand or state the reasons you either don't recall this debt or you had forgotten about it or you thought you had paid it back...but then simply move on to " not receiving any documentation since xxxxx 2011 regarding this loan in any form until xx xxxx 2014 when I received a County Court claim form from claimant solicitor (BC). Prior to this I had received no correspondence from the Claimant. "

 

Your point 3 needs a rewrite as to the reason the agreement broke down...or the fact you do not recall the loan...then move on to putting them to proof to disclose.

 

As it is it reads as...yes I had a loan but because I didn't hear anything for 4 years and no one asked or sent anything...I forgot about it or hoped it would go away and this claimant has no paperwork to prove their claim.

 

Not being pedantic N Hope but you do see my point...it does not flow at 2 it requires the reason as to why the agreement broke down.

 

Andy

[N-Hope]

ok, will amend it now.... thanks

[N-Hope]

Can you please check i have re frame it ....

[Andyorch]

I have made just a few tweaks on 3 and 4 ...see what you think?

[N-Hope]

Great!

 

Many thanks Andy, for all the supports......

 

I hope everything go well.......