Lowell/BW legal claimform - old o2 mobile 'debt'

[dx100uk]

you don't await theirs

Get yours moving

 

 

dx

[Multay]

Hi Everyone,

 

Here is my attempt at a Wtness statement....

 

I'm sure the last paragraph isn't relevant

but given they are claiming is a CCA regulated agreement in the POC, maybe it is..

 

it's amended from a credit card claim so there may be tons of glaring errors, too much detail, too little detail...

I don't know but let me know what should stay and what should go...

 

My original defence is on post number 15 but I can put it up here if it's needed.

Thanks in advance..

 

 

 

 

IN THE ******* county court

Claim No. ***********

 

BETWEEN:

Lowell Portfolio 1 Ltd

Claimant

 

AND XXXXXXXX

Defendant

************

_________________________ ________

 

WITNESS STATEMENT OF **********

_________________________ ________

 

 

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

 

I make this Witness Statement in support of my defence in the claim.

 

1. The claimant is an Assignee a buyer of defunct or bad debts which are bought on mass portfolios of debt at a much-reduced cost to the amount claimed and which the original creditors have already wrote off as a capital loss and claimed against taxable income.

 

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.

 

2. On or around the 13th.December 2016, I received a claim from the County Court Business Centre, Northampton, for the amount of £796.42. The claimant contends that the claim is for the sum of £634.78 in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX regulated by The consumer credit Act 1974 (CCA).

 

3. Contained within the claimant’s particulars, the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement. There are no details contained within its particulars detailing when any alleged Default Notice has been served upon the defendant pursuant to S.87(1) CCA. There are no details contained within its particulars detailing when any alleged Default Notice occurred or the degree of default or details as to how the sums claimed have accrued. The claimant is put to strict proof to evidence details of the default and service of any Default Notice.

 

4. The particulars of claim state the debt was assigned by Telefonica UK Ltd to Lowell Portfolio 1 Ltd, Ellington House, 9 Savannah Way, Leeds, West Yorkshire, LS10 1AB on the 29th.April 2016 and that Notices were provided by way of a Notice of Assignment. The claimant is put to strict proof to evidence the details of assignments.

 

5. On 14th December 2016, I received an email from BW Legal, The Tannery, 91 Kirkstall Road, Leeds, West Yorkshire, LS3 1HS entitled “NOTICE OF COUNTY COURT CLAIM ISSUED” which explained the many ways I could pay the alleged debt (EXHIBIT A). I replied to this email on the 14th.December 2016 requesting a copy of any Agreement / Contract, a copy of any Default Notice, Confirmation of right to charge statutory interest, a copy of Assignment Notice and copies of statements. (EXHIBIT B). On the 17th. December, they responded by email to the email account the original notice had been sent asking for information to confirm the email address they issued the original claim to, was in fact mine. (EXHIBIT C)

 

On the 19th. December, I made a formal written request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT D]. I also enclosed a copy of the letter sent directly to Lowell Portfolio 1 Ltd. requesting a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT E].

 

6. On 19th. December 2016, I made a formal written request to the Claimant for them to provide me with a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT F].Given that the claimant pleads it is an agreement regulated by the CCA1974.

 

7. The Claimant’s solicitors replied to my request on the 21st. December 2016 stating they were unable to provide any information and that the account would placed on hold [EXHIBIT G] and failed to supply any documents that I requested and that, contrary to the Particulars of Claim, the claim was for “a telephone contract and not a regulated credit agreement”..

 

8. The Claimant’s solicitor then sent me a further letter dated 13th.February explaining that their client intended to continue with the claim, despite the statements made in the previous letter. (EXHIBIT H)

 

9. The Claimants pleaded case is that the Defendant entered into an agreement with Telefonica UK Ltd under account reference **********. I am uncertain as to which account this refers. It is accepted that I have had dealings with O2 UK in the past however I have no recollection the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose this agreement/contract on which its claim relies upon and it is requested that the court compels the claimant to disclose pursuant to CPR 31.5

 

Until such time the claimant can comply and disclose the agreement/contract or provide any evidence they refer to within the particulars of this claim , pursuant to CPR31.5 or amend its statement of case CPR 17.3 it is respectfully requested that the court dismiss this claim and any relief be denied.

 

Statement of Truth

 

I, ********, the Defendant, believe the facts stated within this Witness Statement to be true.

 

 

 

#############################################################################

 

 

 

 

I should have probably told you what the notice of allocation said...

 

It says

" unless the claimant pays the court the trial fee of £80 or file a properly completed application

(I. E one which provides all the required information in the manner requested) for help with fees,

then the claim will be struck out with effect from 22.5.17 without further order

and, unless the court orders otherwise,

you will also be liable for the costs which the defendant has incurred"

 

I assume this is probably standard but thought I would post anyway.

 

When do I put forward my costs?

And how do I calculate them????

 

I'll just add - The exhibit references are a bit all over the place but I'm sorting that. It's the basic content I'm worried about...

 

Thanks again..M

 

And I've sorted the paragraph numbers so they make more sense....

Edited May 15, 2017 by Andyorch
edited

[AndyOrch]

Okay thanks Multay...a decent attempt but I do see pitfalls

 

The whole of the witness statement relies upon them being able to disclose section 78 for the agreement that the claim relies upon along with Notice of Assignment /default notice etc etc......you know and I know as do they that the agreement is not covered by section 78 and that the particular of claim contains this error...which reflects that the claimant is unsure what exactly they have bought or what they are trying to enforce.

 

That said this is Lowell and I would be very surprised if they pay the hearing fee or even submit a witness statement or proceeded with the claim.

 

However you cant rely on that as they may well ...but you still submit your WS and disclosures on time as per the directions...so you have complied with the directions by the dates stated.

 

With regards to the last paragraph simply add to the end.....or re plead their particulars given that mobile agreements are not covered by the CCA 1974.

 

Regards

 

Andy

[Multay]

Soo.. do you think I should alter the statement...the basis is that they haven't sent anything...

[AndyOrch]

There is nothing to send on a mobile debt.

[Multay]

So how do they prove I agreed to anything? Or that any debt is actually mine...??? In that case I can simply deny agreeing to anything...???

[AndyOrch]

They would be able to provide enough evidence that you have used the facility by way of statements...but in theory that is not enough when you are suing someone in a court of law.They need to show that you have some form of contract or application or service agreement...this is an unregulated agreement/contract type and therefore you must deal with it in a different way as you are probably aware of looking at other CCA1974 claims on CAG.

 

 

I will edit your proposed WS tomorrow to suit and refer you back to my post #53 of the most probable outcome.

 

Another poster at the same stage as yourself in the following thread.....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?473809-Lowell-Lowells-Solicitors-Claimform-old-Orange-mobile-debt/page6

 

Andy

[Multay]

Thanks Andy...

I simply want Lowell to prove what they claim.

 

If they want to debt collect using the courts then the least they should have to do is prove they are entitled to collect.

 

I don't think they are and I don't think they have the paperwork and I don't think I owe them a anything, so they need to prove it.

 

It may be a naive attitude on my part but we have laws and I intend to make Lowell stick to them...

[AndyOrch]

Witness statement in post #52 now edited.

 

Andy

[Multay]

Thanks Andy... Will now post to the court...

[AndyOrch]

And a copy to the Claimants Solicitor

[Multay]

Hi,

 

I sent a full document folder to the court by recorded delivery and to bw and Lowell by signed for.

 

As things stand at the moment I've had nothing from the claimant.

 

 

The directions said I should have a copy of their statement etc by the 22nd so I suppose they still have. When or if I get anything I'll let you know.

Thanks m

 

If they don't supply anything and the claim is stuck out, can I go for costs?

 

Thanks. M

[AndyOrch]

You can inform the court they have failed to comply with directions and ask that the claimant be sanctioned.....forbidden to rely on any evidence or the claim struck out...Costs only in Fast Track Claims (over 10k)

[Multay]

Hi,

 

Well I've received nothing from BW so I phoned the court and told them.

 

The woman confirmed they hadn't received anything either

said the judge will grant a couple of days grace to which asked why.

 

She said it's just how it is

that she very much doubted bw would turn up anyway.

 

I'm not really sure what do ,

if anything, now other than wait.

 

Bw have paid the court fee but hadn't supplied witness statement to me or the court at the time I rang them.

 

Thanks. M

[Multay]

I finally got the witness statement from them along with an old bill and an assignment of the debt which I've never seen before. I'll try post it all up but I can't really see how I can win this.

 

Apparently it's now around 900 pounds. 95 for actual debt, 600 early termination and the rest charges.

 

 

They should have filed by 22nd of may, but ignored that and ignored my CPR request.

 

 

I phoned the court but they said they will accept the statement even though it's late.

 

 

I asked why this is the case and was told to " take it up with the judge".

 

I might just have to settle with them as it's all skewed in their favour.

If I hadn't followed directions I'd have lost before I started.

[fkofilee]

No Dont settle!! These ETFs can be overturned!

Dont give up... Wait for the guys to come along. Andyorch is pretty good with this stuff and will be along as soon as he can.

[Multay]

Thanks for that... it's hard when it's so uneven. The directions were clear. Submitted by the 22nd or the case is struck out. Yet, they can still get away with sending in whenever they feel like it...

[fkofilee]

They use pressure to make you go POP!

Bite back.. .This is how you are doing at the moment, you are contesting them. The ETFs can be challenged...

 

Just keep going... You will see through the threats etc

[AndyOrch]

If you can scan redact and upload what you have received Multay and we can take it from there.

 

Andy

[Multay]

Here you go guys... They have the evidence they have detailed so I'm not certain how to approach this...

ws.pdf

Edited June 5, 2017 by dx100uk
doc properly redacted - dx

[fkofilee]

Wow... Just wow... They really have tried to go all out on this one haven't they?

Im sure Andy will comment. Still they should have to have an agreement. The fact that they dont have one along with a DN etc s a bit skeptical.

[Multay]

I'm not even sure how this works anymore... most of its for a terminated agreement the benefit of which, I haven't had. Plus they claim it's regulated under cca 1974 which it isn't. Didn't comply with cpr, ignored court directions etc etc...

[AndyOrch]

And all the exhibits also that they refer to please Multay

[Multay]

Hi,

 

I can't post them all as one of them is a bill so it details a huge raft of phone numbers. There's is an assignment letter from o2 and one from Lowell. There is also a set of terms and conditions that they quoted in the statement. I'll post up what I can later this week as I'm away working.

Thanks M.

[AndyOrch]

Dont need copy bills...so just the T&Cs and the Notice of Assignment ?

 

What date is trial...?

 

You will have to draft a skeleton argument to counter the fairy tales in that witness statement...so dont leave it to long.

 

Andy