Buried my head now I have a claim

[echat11]

Morning echat11, still writing my witness statement, in all honestly it’s a lot harder to word than I thought. I was just going to ask, who is that I call to check if the court fee is paid, nothing really concrete online, is it just the county court business centre?

You can call the County Court where the Hearing will take place.

[adot88]

Hey echat11 going to be sending this via post today plus all evidence etc - I’ll also be sending this via email to overdales and the courts to make sure no action can be taken for the 14 day marker.


the paragraphs are all numbers but have just formatted funny here

let me know your thoughts?

I, xx, xx, who resides at xx, being the Defendant in this case will state as follows:


Introduction

I make this Witness Statement in support of my defence for this claim, which is set to be heard on the xth of February 2024 at xx County Court.

The facts contained in this statement are known to be true to me best of my knowledge, unless stated otherwise.


The evidence documents enclosed in this Witness Statement have been provided by the Claimant upon request via email.


Background/Particulars


The claim is related to an outstanding debt on a credit agreement, regulated by the Consumer Credit Act 1974, which was between myself and NewDay Limited (“the Assignor”).

The Agreement commenced on xnd of June 2018 and relates to a Debenhams Master Credit Card.

Unfortunately, the credit agreement could not be kept up with as the Pandemic of 2019/2020 had caused me to become furloughed, creating major loss of income and then eventually causing me to leave my job (relevant job title then) as I no longer could afford payments on my home and general expenditure, thus causing me and my, at the time, pregnant partner to move in with her parents (in x location) while we still rented Apartment x

I would like it to be noted that during this time, we were visiting our apartment on a regular basis to ensure all letters and belongings were collected before we can officially move.

Prior to this, I had become estranged from my parents due to years of emotional and financial abuse I had received. My parents reside at 292 xxxxx, this will be made relevant to the case in the following statements.

I am not denying the existence of the credit agreement as per my defence. However, I do believe the Claimant has not acted in accordance with the law in attempts to collect the debt.

The Claimant has provided a “signed” Agreement. However, the agreement provided (Exhibit A1) does not include an electronic signature such as a name or a tick box confirming the Terms and Conditions have been understood before acceptance.

Due to missed payments, a Default Notice was sent to me on the 2xth of May 2020 by the Assignor under Section 87(1) of the Consumer Credit Act 1974 (Exhibit A2). Being in the midst of the pandemic I was unable to oblige due to relatively little income. The default notice was sent to Apartment x as per my address on the account with NewDays Limited (“The Assignor”)

The Debt then was acquired by the Claimant on the 2xth of November 2020 and Notice of Assignment was sent on the xnd of December 2020 (Exhibit A3) as per evidence provided by Claimant. However, I never received this, due to the fact that the claimant did not send the Notice of Assignment to my correct last known address as per what was on the Assignors records.

The Notice of Assignment was sent to 292 xxxx as per the Claimants own records, please refer to paragraph 3 and exhibit A3. Due to this section 136 of the Law of Property Act 1925 has not been met by the Claimant nor the Assignor, nor have there been any Notice of Assignment served to me until present by the relevant parties in the appropriate manner that would satisfy section 136 of the Law of Property Act 1925. Therefore, rendering all collection activities by the Claimant out the scope of correct legal procedure and making the debt unenforceable.

I believe the Claimant was well aware of my known last address as the Assignor was sending postal letters to the address of Apartment 3 x prior to the purchase of the debt, please refer to paragraph 11 and exhibit A2. However, failed to act accordingly to the required law to make this debt legally enforceable.

Paragraph 12,13 and 14 are further consolidated when looking at statement records held by the Claimant provided by the Assignor as it shows my known address changing from 292 x to Apartment 3 xx please refer to exhibit A4 and the dates noted on the documents
. I would like the court to note that to save paper and the court's time, the full statement has not been provided but the relevant pages that show the change of address was on record with the Assignor.


I would like to refer back to paragraph 8, as stated, I left address 292 xxxx due to years of emotional and financial abuse received. Due to the Claimants negligence and disregard to my Data Protections Right, the Notice of Assignment was sent to a place where I could have been impacted detrimentally.

On 1xth of February 2021, I contacted the Claimant explaining my current financial situation and difficulties, I received a response from the Claimant stating my complaint was not upheld (although no complaint was given) and that my account will be put on hold for 90 days. In this email I specifically asked that I be contacted by email to resolve this matter due to working schedules where I work late into the evening and cannot be on my phone. This was also requested as I had developed an anxiety towards discussing my financial affairs over the phone due to years of abuse as previously stated. The Claimant did not uphold this as no communication attempts from an agent of the Claimant had been made. I have till date only received generic emails asking me to contact the claimant, attempted phone calls or letters stating that they will be calling me although specifically advised I cannot discuss this matter on the phone, please refer to exhibit A5.


The Claimant proceeded to send letters and contact me via generic emails (asking me to contact them) with my current address 37 xxx but failed to service me with the Notice of Assignment as per section 136 of the Law of Property Act 1925


Legal preceding began on xst of March 2023 and where I requested that the claimants solicitors give sight of the following documents: the agreement, Default Notice, Notice of Assignment, which were provided


CONCLUSION


I do not deny the existence of the outstanding debt but I do believe that as the Notice of Assignment was not served correctly in accordance with section 136 of the Law of Property Act 1925, therefore, the debt is unenforceable.

Due to the actions outlined by the claimant in paragraphs 4 - 19, the claimant has not acted accordingly with the appropriate law, request made by myself and breaching my Data Protection Rights, therefore leaving me with anxiety to deal with the situation and also as outlined, leaving the debt unenforceable due to lack of appropriate service of Notice of Assignment.

ORDER SOUGHT

I would humbly like to request that the courts consider a Tomlin Order be put in place for the agreed amount of £5 per calendar month to pay the outstanding debt for a total amount of £2,291.5x, which is a breakdown of the principle debt of £2,110,5x plus the trial fee of £181.00 that the claimant has paid.


The Tomlin Order in place will stop all collection activities and will remain at £5 per calendar month. The Claimant can offer a reduced amount (subject to agreement by both Claimant and myself) that can be paid through monthly payments without any interest added to ensure that this matter is closed in part and/or full, stopping all collection activities.

Although, I truly believe that the debt is unenforceable due to the negligence and improper actions taken by the Claimant, the order sought will ensure that the principle debt and trial fee is paid


STATEMENT OF TRUTH

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

[adot88]

echat11 not sure if you’ve had a look yet but any feedback would be appreciated before I send it off. Thanks again

[echat11]

1) Number paragraphs, you are referring to them in the Witness Statement., you don't want the judge trying to find stuff.

2) Add paragraphs to large statements and number.

3) Add page numbers.

4) Label Exhibits to correspond to the witness statement.

5) Newday Limited - Newdays Limited?

6) Conclusion should be 'Strike out the claim for the reasons stated in this Witness Statement' or as an alternative the 'payment arrangement' that you have stated.

7) Statement at the bottom should read -

'I believe that the facts in this Witness Statement are true. I understand that
proceedings for contempt of court may be brought against anyone who makes, or
causes to be made, a false statement in a document verified by a statement of
truth without honest belief in its truth.'

8) Also don't offer to pay the Trial fee, they got stuff wrong.

I have some advice for a bit later, ask me near end February.

[adot88]

echat11 thanks for all the advise, I’m gonna make the amendments and get this sent off, just wanted to ask with the conclusion should I include both options of striking out the claim or accept the order sought for payment?

[echat11]

echat11 thanks for all the advise, I’m gonna make the amendments and get this sent off, just wanted to ask with the conclusion should I include both options of striking out the claim or accept the order sought for payment?

Yes, both, 'strike out' first (unenforceable because of the evidence you have presented), second, in the alternative the payment arrangement of £5 month.

Also change the last paragraph to 'I believe that the debt is unenforceable due to the evidence, negligence and improper actions taken by the Claimant, the order sought will ensure that the debt is paid.'

[adot88]

Hey echat11 i managed to amend the witness statement but have some good news/bad news I guess. Unfortunately, my son fell ill again yesterday and I was unable to get the Witness statement out on time to Overdales. I spoke directly with Overdales they have confirmed they are happy with the witness statement and trial bundle to be sent out in email which I had done anyway yesterday but I also advised them that they should receive it in the post on Saturday. The courts got their copy today so that should be okay. I just went to read the judges instructions and I realised I may have made a mistake. One of the directions is to include the claim
letter and any reply at first I thought it meant reply as in conversation regarding the claim and things like that but after reading it again, I think it may mean all the actions after the original claim, such as the defence etc, don’t know if this would cause any issues???

[echat11]

Hey echat11 i managed to amend the witness statement but have some good news/bad news I guess. Unfortunately, my son fell ill again yesterday and I was unable to get the Witness statement out on time to Overdales. I spoke directly with Overdales they have confirmed they are happy with the witness statement and trial bundle to be sent out in email which I had done anyway yesterday but I also advised them that they should receive it in the post on Saturday. The courts got their copy today so that should be okay. I just went to read the judges instructions and I realised I may have made a mistake. One of the directions is to include the claim
letter and any reply at first I thought it meant reply as in conversation regarding the claim and things like that but after reading it again, I think it may mean all the actions after the original claim, such as the defence etc, don’t know if this would cause any issues???

Although, the other bits might be slightly late, still do as asked by the Judges instructions. send the correspondence i.e. Defence, Directions Questionnaire, Court Directions etc. Make sure they tie in with your evidence bundle, mark them as Court Documents, number them, email them to the Court and Overdales.

Don't worry about them being late. It's not a 'biggy'. Hope your son feels better soon.

[adot88]

echat11 thank you for your kind words. I’m glad to hear it’s not a biggy as I was quite worried about them being late. Although they have technically received the trial pack previously sent before the 14 days are up. Would there be any consequences if these weren’t sent?

[echat11]

echat11 thank you for your kind words. I’m glad to hear it’s not a biggy as I was quite worried about them being late. Although they have technically received the trial pack previously sent before the 14 days are up. Would there be any consequences if these weren’t sent?

The thing is that the Judge has given instructions for a reason, when you are given instructions, they need to be followed. What you can do, is call Overdales Monday, explain that you've not repeated the Court Documents, as you didn't want to cause any confusion, 'are they o.k. with that?', providing they are and send you an email stating that, then you can send the Court an email stating 'that Overdales are o.k. with it'. The Judge and yourself can use the 'Court Documents' provided by Overdales.

[adot88]

echat11 morning, last night I managed to get the documents sent out as required around 12ish, I just created a quick cover letter and index stating what the next pages are and added the reply’s from the court. My defence etc. numbered the pages in accordance to my original trial pack and sent it off. I apologised in the email and chalked it to scanning issues. However, I have just noticed my original email sent to the courts had an auto bounce back reply but the few I sent after did not. I’m not entirely sure why as all the emails are perfectly identical as it’s just a case, I’m going to try get a copy of the pack hand delivered in person to the courts and call Overdales on Monday to check they were received but finding it strange I got no bounce back reply from the county court email.

[adot88]

A case of copy and paste*

[adot88]

echat11 here is Overdales response to the witness statement:

We confirm receipt of your witness evidence.

We are unable to accept your offer of settlement as additional costs have now been incurred as a direct result of your failure to engage in settlement negotiations earlier.

The Claimant witness statement confirms that a total of 36 emails were sent trying to engage in settlement negotiations. You failed to respond.

We are able to accept settlement in the sum of £26x5.35, plus £108 Court Fee for filing a Tomlin Order, a total of £2,x63.35.

We are able to accept repayments of £50 per month and attach a Tomlin Order in the offered terms for your approval. Should £50 per month not be agreed, please complete and return the attached Income & Expenditure form for consideration.

The Claimant submits that the Notices of Assignment were correctly served. You were clearly aware of the assignment as early as February 2021 when you contacted the Claimant regarding the debt.

We look forward to hearing from you.



The email sent on feb 2021 was:

Apologies for not being in contact with you sooner, due to being deeply affected by the current circumstances, I have experienced extreme financial difficulties which have led me to fall into extreme debt.

As a result of the pandemic I could no longer afford to live where me and my wife were previously residing, I had to make the decision to move in with my in laws where my wife could stay whilst she was heavily pregnant and due any day. Due to losing my previous job, my current income has dropped by almost 2/3 less than what I was earning at my last job. At the moment, I simply cannot afford to make big payments to reduce the loans I have incurred as there are quite a few. I would really appreciate if someone could take my circumstances into account and help me talk through my options before things spiral out of control even more.

As it stands my mental health is being affected by this and also putting a strain on my marriage. I realise as the days go on my credit file is declining hence causing me even more stress as it makes me anxious about my future and the future of my family.

I want to correct these issue but I would really appreciate the guidance and support from yourselves.

If possible can we please discuss what the best options would be for me through email as I have a job which requires me to be away from my phone till late in the evening.

Thank you for your understanding. I look forward to hearing from you




this was an email I had sent to a few DCA that had contacted me regarding outstanding debts. At this point I had not actually seen the Notice of Assignment and was just responding to the generic emails sent.

would it be worth responding with the income/expenditure form and stressing that the notice of assignment was not seen and that the collection acts were still within the scope of the law?

[adot88]

Were not in the scope of the law*

[echat11]

echat11 here is Overdales response to the witness statement:

We confirm receipt of your witness evidence.

We are unable to accept your offer of settlement as additional costs have now been incurred as a direct result of your failure to engage in settlement negotiations earlier.

The Claimant witness statement confirms that a total of 36 emails were sent trying to engage in settlement negotiations. You failed to respond.

We are able to accept settlement in the sum of £26x5.35, plus £108 Court Fee for filing a Tomlin Order, a total of £2,x63.35.

We are able to accept repayments of £50 per month and attach a Tomlin Order in the offered terms for your approval. Should £50 per month not be agreed, please complete and return the attached Income & Expenditure form for consideration.

The Claimant submits that the Notices of Assignment were correctly served. You were clearly aware of the assignment as early as February 2021 when you contacted the Claimant regarding the debt.

We look forward to hearing from you.



The email sent on feb 2021 was:

Apologies for not being in contact with you sooner, due to being deeply affected by the current circumstances, I have experienced extreme financial difficulties which have led me to fall into extreme debt.

As a result of the pandemic I could no longer afford to live where me and my wife were previously residing, I had to make the decision to move in with my in laws where my wife could stay whilst she was heavily pregnant and due any day. Due to losing my previous job, my current income has dropped by almost 2/3 less than what I was earning at my last job. At the moment, I simply cannot afford to make big payments to reduce the loans I have incurred as there are quite a few. I would really appreciate if someone could take my circumstances into account and help me talk through my options before things spiral out of control even more.

As it stands my mental health is being affected by this and also putting a strain on my marriage. I realise as the days go on my credit file is declining hence causing me even more stress as it makes me anxious about my future and the future of my family.

I want to correct these issue but I would really appreciate the guidance and support from yourselves.

If possible can we please discuss what the best options would be for me through email as I have a job which requires me to be away from my phone till late in the evening.

Thank you for your understanding. I look forward to hearing from you




this was an email I had sent to a few DCA that had contacted me regarding outstanding debts. At this point I had not actually seen the Notice of Assignment and was just responding to the generic emails sent.

would it be worth responding with the income/expenditure form and stressing that the notice of assignment was not seen and that the collection acts were still within the scope of the law?

Yes, but also add that you informed them about your circumstances baby on way, mental health.

Have a read of the following, you can quote the FCA.

You said you sent out several emails, if you have copies, black out the Creditor details and attach.

They received your email in 2021, what did they do? Also explain that it doesn't matter how many emails they send 'if you've bunker-ed down because of mental health issues, you aren't going to be in a position to read or respond. If you've got any doctors letters from the time, send them as supporting evidence.