Lowell claiming - old Very CAT debt***Claim Dismissed with Costs***

[dx100uk]

witness statement you 've already filed your defence...…….

 

there are no templates, as each WS is related to the individual defence you filed...

 

but if you use the search CAG box of the top red toolbar

 

claimform cat witness statement

 

it will give you some ideas of what other have responded with.

 

it has to be with the court 14 days prior to the hearing date.

[mollywobbles]

I've been doing some reading of previous threads...

 

Andy you posted an example here (https://www.consumeractiongroup.co.uk/forum/showthread.php?478450-Lowell-claimform-old-Fashion-World-JDW-Cat-debt***Claim-Dismissed***) which on the surface seems to be a similar case. Obviously it will need modifying even if that is the case, but I wanted to check I would be on the right track if I used that as a starting point?

 

It all seems quite overwhelming right now. I'm starting to wonder if we've done the right thing. Seems we have very little to go on. Any advice for keeping the fear at bay with the trial date looming?

[AndyOrch]

Yes that should be okay once adapted to your claim details.

 

Of course you have done right....the alternative would be they would have judgment now with no fight for something they most probably will not be able to prove.

[mollywobbles]

Thanks Andy.

 

I will get to it and post up my draft. I'm at home on my own with an unhappy baby so I'll have to come back to it later.

 

Lowell did send a letter recently offering £20 pm payments for however long it takes.

We could afford this but anything much more would really be difficult.

Should we be considering taking it?

 

I suppose the real question is would the court make us pay more per month if Lowell got the judgement?

I know the likely answer is no-one can say for sure, and having come this far I should really stay strong.

 

A few months ago, I felt much better about the part of this which is essentially gambling on getting the right judge, especially as the debt is my partner's rather than mine which somehow makes me feel all the more responsible.

[AndyOrch]

In the event that they did get judgment....payments would be set at an affordable rate..but of course you would have the CCJ on your CRAs for 6 years.

 

Accepting their offer of £20pm with no judgment ( I assume by way of a Consent Order...Tomlin Order) would avoid section 69 interest but would include costs so far.

 

Its really your choice if you can deal with the hassle and taking a gamble...but from past experience Lowell Cat claims are very rarely proceeded to trial and normally end up discontinued after exchange of statements and disclosures ...but we cant guarantee molly.

 

Probably prudent to decide if they pay the hearing fee and they actually serve you with their statement/evidence.

 

 

Andy

[mollywobbles]

I presume as I am meant to send my witness statement to them, that I will receive theirs from them?

 

It's awkward as we are going to be away from 13/10-20/10. Hearing date is 29th. So I will need to send our stuff off before we go and potentially theirs will arrive after we've gone. Will they be able to produce evidence at this stage which they have not sent me in response to the various requests I've made so far? I'm thinking specifically about the default notice which has never been produced (only green and black screen shot thing).

 

One other question - defaults vs. CCJs. My partner's credit record is already littered with defaults (see the history of this thread). What does a CCJ do to your credit record that a default / series of defaults doesn't / don't do? Are the impacts of a CCJ likely to be worse than the already existing impacts of the defaults?

[AndyOrch]

Yes the Directions in your N157 state simultaneous exchange of statement and documents.

 

If they do comply with directions and serve a statement it will include all their evidence....as this is the stage that they must disclose all evidence relied upon.

 

No difference really...a Default or CCJ simply remains on your CRAs for 6 years...paid or unpaid.

 

Creditors have their own determinations as to the difference between...some worse than others some treat it the same as a default...it varies on the amount of credit.

[mollywobbles]

Hi Andy,

 

I've been over the example witness statement linked above. It seems this was written with the witness statement provided by the claimant already at hand. Nothing has arrived from Lowell. I presume it's normal to have to prepare one's own witness statement without having received the claimant's? Or should I be waiting to hear what they have to say?

[AndyOrch]

They normally file late and wait for yours...in the absence of not receiving theirs ...on time or if at all.....its imperative that you submit yours to the court on time...as for their copy...well I would send it if you get theirs....but at the least serve it late.

 

There are plenty of examples of statements in the absence of the claimants.

[mollywobbles]

I've said it many times before, but I am frequently bowled over by the assistance provided here. Thanks to all who have read and helped so far.

 

Based on the example witness statement linked above, and with inspiration from a few others I've come up with the following draft. Please see my queries / comments in red.

 

IN THE ******* county court

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

 

BETWEEN:

Claimant

Lowell Portfolio Ltd

 

AND

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.

 

The claimants witness statement 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.

 

[i see this at the start of many witness statements, but honestly, I'm not sure what it refers to. Could someone explain in plain terms and let me know if it applies in my case] Not applicable unless you have received the claimants statement and it does contain hearsay evidence

 

I understand that the claimant is an Assignee, a buyer of defunct or bad debts which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income as confirmed in the claimants witness statement exhibit by way of the Deed of Assignment

 

[as I have not received the claimant’s witness statement, can I make reference instead to their letter of claim where they say that the debt was assigned to them and when?]

Remove as confirmed..the fact is still correct

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 31st December 2017, I received a claims form from the County Court Business Centre, Northampton, for the amount of £2487.09. The claimant contends that the claim is for the sum of £2487.09 in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The consumer credit Act 1974 (CCA).

 

[i have copied this from the example linked above, as there is only one sum involved in my case do I need to state it twice?]

Where else have you stated it ?

3. Contained within the claimants particulars the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA. It goes on to evidence a default notice in their exhibits which.…[how can I best word the fact that the ‘default notice’ that they have provided is merely a black and green screenshot, that is not recognisable in any way as a default notice? This is surely the crux of my argument so I need to word this correctly] 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. Its already worded above " pursuant to section 87(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”)

 

5. On the 2nd May 2018 I made a formal written request by way of a CPR 31.14 to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT A].

 

[i cannot seem to locate the proof of posting from this date. I do however have the letter that they responded with on May 10th. What should I provide as my evidence?]

Their response letter /date

6. On the 2nd February 2018 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 B].

 

[i do have proof of posting for this one. Do I need to include a copy of the letter I sent? Again I have copies of their response. Same question as above…]

Yes include request and response

 

7. The Claimants pleaded case is that the Defendant entered into an agreement with Shop Direct under account reference **********. I am uncertain as to which account this refers to. It is accepted that I have had financial dealings with Shop Direct in the past however I have no recollection of the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim relies upon and not try to mislead the court.

 

[is ‘financial dealings’ the correct phrasing here? Yes...unless you have never had any dealings Further, it seems this example was based on a claim where the agreement was illegible. That’s not the case here, although it was reconstituted. What can I say here that we are asking them to disclose?] Remove illegible and state why they shouldnt disclose a reconstituted version IE before April 2007 agreement

 

Until such time the claimant can comply and disclose a true executed copy of the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

 

 

Statement of Truth

 

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

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

 

 

Your comments, improvements and suggestions will be so much appreciated.

[AndyOrch]

Responses to your salient points in Blue

 

I will take a further look at the contents tomorrow.

 

Andy

[mollywobbles]

Thank you for your responses. I've been through everything again today and here is my re-draft with some further thoughts. It all seeming so overwhelming right now, thank you so much for your continued assistance...

 

IN THE ******* county court

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

 

BETWEEN:

Claimant

Lowell Portfolio Ltd

 

AND

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.) I understand that the claimant is an Assignee, a buyer of defunct or bad debts which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already written 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 31st December 2017, I received a claims form from the County Court Business Centre, Northampton, for the amount of £2487.09. The claimant contends that the claim is for the sum of £2487.09 in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The consumer credit Act 1974 (CCA).

 

[This evening I have laid out all the letters in date order, trying to get my head straight with what is what. The one I mention above, dated 31st Dec, is a ‘letter of claim’. Is this the pre-action protocol thing? If so, my date here is wrong, no? The claim form itself is actually dated 24th April. Am I right that this is the important one, that should be mentioned here? If so, the amount is wrong too.]

 

[i have copied this from the example linked above, as there is only one sum involved in my case do I need to state it twice?]

Where else have you stated it ?

Twice within this paragraph. It makes more sense reading it again today, it just seemed repetitive before. I think it’s ok though.

 

3.) On the 2nd February 2018 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. An acknowledgement was received dated 12th February and a further response on 13th March, which enclosed a reconstituted copy of the agreement, screenshot of the default notice and notice of assignment. [EXHIBIT A].

 

[a) The letter 12th Feb states when the last payment was made - 14th Jan 2017. I fear this is bad news for us. It’s really not so long ago. Will the judge not expect us to remember making payments that were in the relatively recent past?

 

b) The letter 13th March says that a ‘statement’ was included - it wasn’t, though I believe it was subsequently produced at the next stage. The notice of default was by their own description a ‘screenshot’. The notice of assignment looks like a template letter. It’s not even on headed paper. Neither of these were ever received by my partner. Surely any chance we have rests wholly on this argument, so how best to emphasise that they have not been able to reproduce these documents?

 

4.). On the 2nd May 2018 I made a formal written request by way of a CPR 31.14 to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case. A response was received dated 10th May, enclosing a) a reconstituted copy of the agreement, b) an alleged screenshot of the default notice, c) a copy of the letter of claim dated 31st December 2017, d) a copy of the alleged notice of assignment (again printed on plain paper) and an alleged shop direct group statement [EXHIBIT B].

 

[Re this statement. I don’t know if it goes in our favour or not. It’s all quite confusing. The original credit limit on the agreement they have produced is £1000. It says the total repayable is £1191.72. The statement, which is not dated, shows debits of £4,028.19 and payments of £1,384.60 plus a discount of £101.50 totalling credits of £1,486.10. The £4,028 debits is totalled of £2,508.79 in goods and £1,395.45 in interest with £120 in charges. My partner can’t seem to recall much about how this has gone from a £1000 agreement in 2010 to this. The statement covers only the last six years, so going back to 2013. No information prior to this has been provided. In our defence we said something about putting them to strict proof of how the debt had been accrued. Is that still relevant here, or indeed a good idea?]

 

[Further, in our CPR request we asked for: ‘3: Notices of Sums in Arrears under running account credit CCA2006 sec 86C’. Am I right in thinking that this has not been received, or would this be covered under the statement I’ve described above?]

 

5.) Contained within the claimants particulars the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA. In their various responses to the requests detailed above the claimant has produced what they describe as a ‘screenshot’ of the default notice, which is unrecognisable as such. 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.

 

[i'm sure the part above in bold can be better worded, feel free to amend if you agree]

 

6.) The Claimants pleaded case is that the Defendant entered into an agreement with Shop Direct under account reference **********. I am uncertain as to which account this refers to. It is accepted that I have had financial dealings with Shop Direct in the past however I have no recollection of the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim relies upon and not try to mislead the court.

 

Further, it seems this example was based on a claim where the agreement was illegible. That’s not the case here, although it was reconstituted. What can I say here that we are asking them to disclose?] Remove illegible and state why they shouldnt disclose a reconstituted version IE before April 2007 agreement. Sadly it was post 2007. What, if anything, can I say?

 

Until such time the claimant can comply and disclose a true executed copy of the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

 

 

Statement of Truth

 

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

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

 

With thanks, Molly x

[dx100uk]

that's not a default notice. end of!

[dx100uk]

It is therefore contended that the original creditor failed etc

I wouldn't put that.

[mollywobbles]

that's not a default notice. end of!

 

I really hope the judge agrees with you there! It seems that's what our whole case is resting on...

[mollywobbles]

It is therefore contended that the original creditor failed etc

I wouldn't put that.

 

I'll revisit this section tomorrow. Is it that what the original creditor did is not relevant?

[dx100uk]

don't speculate!!

tell the truth as you know it...

[mollywobbles]

For ease of reading, here it is as it currently stands...

 

IN THE ******* county court

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

 

BETWEEN:

Claimant

Lowell Portfolio Ltd

 

AND

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.) I understand that the claimant is an Assignee, a buyer of defunct or bad debts which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already written 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 31st December 2017, I received a claims form from the County Court Business Centre, Northampton, for the amount of £2487.09. The claimant contends that the claim is for the sum of £2487.09 in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The consumer credit Act 1974 (CCA).

 

3.) On the 2nd February 2018 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. An acknowledgement was received dated 12th February and a further response on 13th March, which enclosed a reconstituted copy of the agreement, screenshot of the default notice and notice of assignment. [EXHIBIT A].

 

4.). On the 2nd May 2018 I made a formal written request by way of a CPR 31.14 to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case. A response was received dated 10th May, enclosing a) a reconstituted copy of the agreement, b) an alleged screenshot of the default notice, c) a copy of the letter of claimicon dated 31st December 2017, d) a copy of the alleged notice of assignment (again printed on plain paper) and an alleged shop direct group statement [EXHIBIT B].

 

5.) Contained within the claimants particulars the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA. In their various responses to the requests detailed above the claimant has produced what they describe as a ‘screenshot’ of the default notice, which is unrecognisable as such. 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.

 

6.) The Claimants pleaded case is that the Defendant entered into an agreement with Shop Direct under account reference **********. I am uncertain as to which account this refers to. It is accepted that I have had financial dealings with Shop Direct in the past however I have no recollection of the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim relies upon and not try to mislead the court.

 

Until such time the claimant can comply and disclose a true executed copy of the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

 

 

Statement of Truth

 

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

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

[dx100uk]

Default notice not sorted as previous posts

[shamrocker]

Re. the DN - I would be inclined to also state that none was ever received. This places an obligation on the claimant to evidence that the account was indeed placed in default and a compliant DN sent to you. They'll have to provide a comms log which clearly shows this activity. It might just give you an other stick to beat them with.

 

Probably worth getting the view of DX and Andy on this though, as they've been helping you thus far.

[mollywobbles]

Ok how's this, with some inspiration from another case...

 

5.) Contained within the claimants particulars the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA.

 

No default notice was ever received by the defendant.

There are no details contained within its particulars about when the alleged default occurred or date of any alleged Default Notice 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.

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.

[mollywobbles]

Can I ask a question about posting... court date is 29th, which is a Monday. Assuming I send it special delivery, is this Saturday 13th ok to send everything off to the court?

[mollywobbles]

They normally file late and wait for yours...in the absence of not receiving theirs ...on time or if at all.....its imperative that you submit yours to the court on time...as for their copy...well I would send it if you get theirs....but at the least serve it late.

 

There are plenty of examples of statements in the absence of the claimants.

 

Additionally, Andy said this above about the copy for Lowell. Am I correct that it's best to not send them anything until their statement arrives?

[shamrocker]

Additionally, Andy said this above about the copy for Lowell. Am I correct that it's best to not send them anything until their statement arrives?

 

No, I think he means that you should get a copy to the court on time, but sent Lowell's slightly late. If they're waiting on yours before completing theirs, it will mean the net result is that they end up being quite late.

 

Regards to your proposed new para.5 above, it's probably suffice to simply state that one wasn't received, in addition to their failure to comply with your CPR request for a copy of the DN. I just looked at the comms log you attached further back and can see that they reference a DN being issued. They'll probably disclose this within their WS - but who's to say it's genuine.

 

You definitely need to challenge them to evidence the balance. It's likely to be full of charges, so you can challenge these. Take every opportunity to erode their gains.

[mollywobbles]

I just looked at the comms log you attached further back and can see that they reference a DN being issued. They'll probably disclose this within their WS - but who's to say it's genuine.

 

You definitely need to challenge them to evidence the balance. It's likely to be full of charges, so you can challenge these. Take every opportunity to erode their gains.

 

Whether or not the judge will accept what they have provided as a DN is critical to whether or not we have any chance if we get as far as a court date as far as I can see. I've been told more than once on this thread that the screenshot thing they've sent won't count. But I guess I won't know til I get there...

 

I will need to get this sent off tomorrow or Saturday latest so any further comments or suggested amendments are appreciated.

 

Thanks as always