County Court Claim filed by Lowell Solicitors

[Ndurennai]

jaguarsuk and charitynjw and other VIP members please please could you help by giving me your thoughts or points I should include in my witness statement as I'm preparing for hearing.

Claimant did respond to any formal request for CCA, CPR, etc and account they bought from OC is disputed account and the matter is already on the table of FOS. Many thanks in advance for your help or suggestion.

They're looking at overcharges and their refusal to freeze int & charges when I formally requested. OC said sorry and refunded some money but I didn't accept amount refunded even though it was sent directly to DCA

[Ndurennai]

Is the court aware of this?
What exactly is the FOS looking at?

Court is not aware, is a separate matter with OC... Case coming up was issued by the DCA

[Ndurennai]

Hi Everyone, wrt hearing I have with Lowell, I attached here their WS, any suggestion on how to win this would be appreciated

[Amethyst]

Paragraphs 4 and 5 are contradictory- If no copy of the agreement was retained and the solicitors have not seen a copy of the agreement then how can they plead that you have breached the terms of the said agreement.

What was the 3 pounds in 2013 ? I think you've noted not a payment next to that paragraph?

Other than the 3 pounds when was your last payment before then… And were those transactions in 2007 The last spending on the account?

They issued the claim in October 2018?

Have you done a subject access request to the Halifax?

[Ndurennai]

Many thanks Amethyst

claim was issued 14 Sept 18, hearing is tomorrow.

Last payment by me is 18/11/12, but after I sending my defence I received statements from HBOS following SAR I then notice random payments of £40 from a friend and then surprisingly £3 payment made on 23 Feb 2013 from my ISA I can't remember what it was for but it was certainly not to repay overdraft because repayment monthly was much highly (Lowell is talking about because it was my ISA). If lowell complied with cpr, etc then I'd been worded my defence differently in respect of account being SB. However, agreement and all transactions were done whilst I live in Scotland so I am arguing now that Scottish 5 year rule will apply?

[Ndurennai]

MY WS

I, being the defendant in this case would state as follows;



1. I make this statement in support of my defence in this claim which is due to be heard on 18^th July 2019 at County Court.





2. The facts noted in this statement is from my own experience and knowledge and not just hear say, and except where I indicate to the contrary the matters set out below are within my own knowledge and belief.





3. On 14^th September 2018 the Claimant submitted a claim to Northampton County Court stating their Particulars of Claim as exactly as on submitted Exhibit A. As The Claimants pleaded case is that I, the Defendant entered into an agreement with bank acc no xxxxxxx under account reference ….... I am uncertain as to which account this refers to. It is accepted that I have had two current accounts and other banking products with Bank of Scotland Plc in the past however the account number given does not relate to any information I have.



However, about 8 months after issuing said claim I received a letter (submitted hereto as Exhibit B) with bank statements from Claimant’s Solicitors on 21^st May 2019 which contain account number 01110206 that I recognise; therefore I maintain that said account number originally stated upon which the claimant raised this action is wrong. In addition to said inaccurate account number most points in the claimant’s statement of case appear vague, and when I formally requested Claimant to prove said Particulars of claim they failed to do so.



4. I aver that the Claimant failed to provide upon request the necessary details about the account they are claiming for, for instance:



i) When exactly did I failed to maintain the required payment of what amount or when did allege debt default occur, what was the degree of default or details of all payments made and calculations of how charges were applied leading to how the sums of £2270.40 claimed have accrued?

ii) Claimant did not provide alleged debtor credit agreement, along with a copy the original Terms and Conditions and any subsequent changes in said Terms & Conditions (referred to as the ‘Agreement’ within the Particulars of Claim) and show how I the Defendant entered into an agreement.

iii) Also, I believe Penalty Charges were applied to this account and as such may be unlawful under the Unfair Consumer Contract Terms Regulations 1999. Therefore details of each and every penalty charges would need to be presented along with interest imposed to ascertain their lawfulness. This was not showed.

iv) Claimant did not show how termination notice or said formal demand was served upon the Defendant.

v) As per Civil Procedure rules 16.5(4), it is expected that the Claimant prove the allegation (as set out in the Particulars of Claim) that the money is owed.





5. Upon receiving this Claim on 18/09/19, the next day being 19^th September 2018 I made a valid, formal request by recorded delivery to the Claimant solicitor requesting further information and verification of the alleged debt, as well as request copies of all documents mentioned in Particulars of case (submitted hereto as Exhibit D) upon they intends to rely on in bringing this case for examination by reason of the provisions of CPR. I repeated my request for copies of documents pursuant to CPR 31.14 and also sought an extension of time for filing my defence to the Claim in accordance with CPR 15.5 but all was not complied with.




6. On said 19^th September 2018 I also made another valid request enclosing statutory £1 fee payable directly to claimant requesting a copy of my Consumer Credit Agreement as I am entitled to do so under sections 77-79 of the Consumer Credit Act 1974 (submitted as Exhibit E). I will aver that the Claimant received said two recorded letters mentioned in 6 & 7 and the statutory payment of £1 was cashed and, that however there is no doubt that the Claimant failed completely to comply with aforementioned formal cum statutory demand(s).





7. I aver that neither the Claimant nor their solicitor replied to aforesaid requests until 13^th March 2019 following my call to their office on 07/03/19 querying their failure to respond to formal demands (submitted as Exhibit F wherein a letter which I think was back dated to 26^th September 2018 was enclosed). In summary reply I got on 13/03/19 did not contain any documents mentioned in Claimant’s claim form.



I disagree that letter dated 26/09/18 was sent to me as claimed because claimant did not inform the small claims mediation team that they replied to me so that mediation would go ahead, given that I said I can only go ahead if Claimant would oblige and provide formally requested details of claim they raised. Upon permission from this noble court I can provide details of said email correspondences with mediation team. Further to this I will aver that failure of the Claimant to comply with set rules from outset hindered every avenue by which early and/or out of court settlement would have been realised.





8. I, the Defendant denies monies are owed to the Claimant as alleged, I aver that as in Exhibit A: The agreement (which the claimant claim was later assigned to them on 17/06/2015), failure to maintain required payment and termination of service are the core / bases of Claimant’s claim as they particularly mentioned, however when put to the strictest of proof they failed to substantiate said claim and till date they failed to provide: i) copy of said agreement which was breached; ii) letter on claimed failure to make payment or defaults; iii) letter notifying me of termination of service despite my entitlement to inspect these documents.





9. I note the Claimant stated in their response letter (submitted as Exhibit G) that the debt in question is not regulated and that they would not request Agreement and Default Notice from the original creditor however they went ahead and reported a Default Date to Call Credit, a CRA regarding this debt (see submitted Exhibit H).





10. Still on said Exhibit H the Claimant reported that balance I owe them is £2,568 (a figure made up of court, solicitors fees, etc) without minding that this case is still in the court process and that have not been declared winner; on this point I note that the Claimant pre-empted this claim they brought before the law court.



11. I aver that the Claimant bought a disputed package bank account and my complaints to Financial Ombudsman Service regarding penalty charges, high interest rate or daily charges, unfair consumer contract or relationship, etc are pending investigation of FOS. Submitted Exhibit I shows a very recent refund of £145.00 due to error of charges applied to said account of which I am contesting.



That said, I note that the Claimant have professional duty to put their house in order from outset and buy debts which are free of encumbrances, and based on the fact on cited notice / deed of assignment Bank of Scotland have assigned all its rights pertaining to this debt to the Claimant (see submitted Exhibit J). Thus I believe that the Claimant cannot raise a court claim and simply just say “we cannot produce a copy of an agreement or contract because we are not the assignor or wait until the assignor respond to our request and or we do not have access to such documents”.





12. On 24th May 2019 I wrote a letter to the Claimant (submitted hereto as Exhibit K), after taking some advice but I received no reply.





13. I aver that upon opening the account in question I was not issued with a copy of said agreement and I do not hold one. I also did not receive any notice about termination of service. It is on record that I have formally demanded for said agreement both from Original Creditor (submitted as Exhibit L) and the Claimant but all to no avail. I note that the burden proof is on the Claimant who raised this claim against me for alleged breach of agreement.





14. I aver that I tried to ascertain that validity of the alleged claim; however the Claimant failed to answer my questions and till date I have not received requested documents. Thus I most respectfully request the Claimant’s claim be Struck Out due to lack of evidence , or Struck Out as the agreement is unenforceable due to lack of an agreement or production of requested documents and award compensation / cost against the Claimant if they fail provide copy of contract they claimed I defaulted on.





15. I aver that Service of a default notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without a valid default notice, I suggest that the claimant’s case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974. I note further that it is an established principle for the creditor to prove statutory compliance.



16. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.





17. In my defence I did aver that the Claimant's claim so issued is a claim in contract and that it is statute barred because at the time on top my head I believe it must have been over six years since I stopped using the account and the Claimant was not forthcoming in providing documents requested in timely manner so that I would have a clearer picture. However I do not accept that a random payment of £3 was made to fund an account of that balance, I cannot recollect how said £3 transaction come about. And certainly perusing through the account history £3 was never the regular payment amount I was charged monthly for using said overdraft.



Nevertheless, given that contract/agreement was established / signed in Scotland and at all material times I operated said bank account (all transactions was done) whilst I was resident in Scotland I aver to the best of my knowledge that is statute barred pursuant to the provisions of The Prescription and Limitation (Scotland) Act 1973, Section 6 and the debt is also extinguish under said act given that it was over five-year timescale of inactivity, no payments and/or acknowledgement of debt.





18. I note that based on the advice I was given and information I gathered from CAB I will aver that the agreement I entered into upon opening was regulated and that I have legal rights (statutory rights) which is covered under the Consumer Credit Act. I believe more so considering and matching how said account was ran by Bank of Scotland, the year the agreement was signed (before 6 April 2008), etc, with listed features of Regulated Credit Agreements (submitted as Exhibit M).



19. I aver that this paragraph which is an excerpt from Financial Conduct Authority website which is published advice or regulatory framework covering the type of bank account I held with Bank of Scotland further made me strongly believe that mine was regulated Credit Agreement https://www.handbook.fca.org.uk/hand.../?view=chapter:

CONC 6.3 Information to be provided on a current account agreement and on significant overdrawing Application

CONC 6.3.1R01/04/2014RP

This section applies:

1. (1) to a firm with respect to consumer credit lending; and

2. (2) where a firm has entered into a current account agreement where:

1. (a) there is a possibility that the account-holder may be allowed to overdraw on the current account without a pre-arranged overdraft or exceed a pre-arranged overdraft limit; and

2. (b) if the account-holder did so, this would be a regulated credit agreement.



CONC 6.3.2R01/04/2014RP

CONC 6.3.3 R does not apply where the overdraft or excess would be secured on land.



Statement of Truth



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

[Ndurennai]

Particulars of Claim attached here


I read about: MFS Portfolio Limited v Phelan West (2019 but I can't cite it because it's county court judgement right? Although I wrote Lowell stating said judgement hoping that it may persuade them to drop this since they claimed they don't have copy of agreement

[Ndurennai]

Update guys:




Judge said Lowell won, that I've 14 days to pay Lowell.




Judge said: It's not SB due to 3 pounds payment on 23/02/13, Lowell changed solicitor....not the paralegal that wrote WS.




Lowell solicitor said if I insist on 5 yrs Scottish law on SB then I should've written to the court that they lack jurisdiction to hear the case, the judge agreed with her, saying that if she should go ahead to judge the case it'd be based on English law which specify 6 yrs. There and then I wasn't sure what my rights are on this point of jurisdiction??




The fact Lowell didn't:


---comply CPR and didn't provide any copy of the agreement they said I breached were all ignored by the Judge, Lowell

---Lowell were allowed to amend the amount they are claiming for at the hearing, and Judge accepted, she didn't ask why Lowell didn't made application to amend POC after some refund by HBOS for wrongly applied charges.




Lowell raised action that I breached an agreement they don't know or they haven't seen or retained any copy, they couldn't say how much was the required payment monthly that I failed to make. Lowell solicitor said they are only required to comply with court direction for WS, etc, I said to the best of my knowledge that that should apply after the case was allocated because I made formal demand immediately I received issued claim from court. They raised matter on 14/09/18, I received court papers 18/09/18 I wrote Lowell CPR, etc the next day being 19/09/18 but they didn't reply until about 9 months.




From SAR I noticed Lowell bought this debt 0.08, and now they are authorized for full payment of balance of an account that is dispute and the matter is still pending with FOS.





All said, I thank everyone for advise I was given it was great tips but Judge didn't see good of any points I raised.

[Ndurennai]

Update guys:




Judge said Lowell won, that I've 14 days to pay Lowell.




Judge said: It's not SB due to 3 pounds payment on 23/02/13, Lowell changed solicitor....not the paralegal that wrote WS.




Lowell solicitor said if I insist on 5 yrs Scottish law on SB then I should've written to the court that they lack jurisdiction to hear the case, the judge agreed with her, saying that if she should go ahead to judge the case it'd be based on English law which specify 6 yrs. There and then I wasn't sure what my rights are on this point of jurisdiction??




The fact Lowell didn't:


---comply CPR and didn't provide any copy of the agreement they said I breached were all ignored by the Judge, Lowell

---Lowell were allowed to amend the amount they are claiming for at the hearing, and Judge accepted, she didn't ask why Lowell didn't made application to amend POC after some refund by HBOS for wrongly applied charges.




Lowell raised action that I breached an agreement they don't know or they haven't seen or retained any copy, they couldn't say how much was the required payment monthly that I failed to make. Lowell solicitor said they are only required to comply with court direction for WS, etc, I said to the best of my knowledge that that should apply after the case was allocated because I made formal demand immediately I received issued claim from court. They raised matter on 14/09/18, I received court papers 18/09/18 I wrote Lowell CPR, etc the next day being 19/09/18 but they didn't reply until about 9 months.




From SAR I noticed Lowell bought this debt 0.08, and now they are authorized for full payment of balance of an account that is dispute and the matter is still pending with FOS.





All said, I thank everyone for advise I was given it was great tips but Judge didn't see good of any points I raised.

Hi all, I'm happy to let everyone here know that I contacted Joanna and Connolly Solicitors after I lost this case, and they assisted me in appealing the judgement and winning it.

[Ndurennai]

very glad to have won this case!