N v Lovell

[warwick65]

Re: N v Lovell

Hi
I am just going through your thread and have a few questions and observations from your witness statement

Give me a few minutes to get my head together and i will post before I go to bed

[warwick65]

Re: N v Lovell

First thing
I noticed you are not going to be available at the time of the court hearing, you MUST tell the court this in plenty of time and I suggest you use the witness statement - when was this claim started and when did you get the DQ?

Then I notice while you have argued non compliance with S78(6) although in para 6 you call it S77(1) - that needs changing you also need to argue that S61 was not complied with and therefore by virtue of S65 and S127 (3) the agreement is irredeemably unenforceable

[NvLovell]

Re: N v Lovell

Thank you!

The claim started on 20th September 2016, the DQ came through on the 01/01/2017

Your points around the S78/76s etc have confused me, if it's easier just to rewrite that paragraph please just advise how it should be worded.

Thank you again

[warwick65]

Re: N v Lovell

Right

I am basing this on what you have posted and I think you need to work into your witness statement

1) You will be unavailable on the date of the hearing and wish the court to take your witness statement as evidence. The reason you are unavailable is because since the completion of the directions questions ( say how long ago) my circumstances and availability changed

2) In answer to the claimants questioning as to why I had not questioned the agreement before the claim was received, it was not until the claim was received that I made enquiries and became aware of some aspects of legislation, namely S78. Since then I have become aware of further areas of legislation including S61, S65 and S127 CCA 1974 as the law of property act 1925


3) The Claimant, in their W/S maintain the agreement is enforceable however due - then talk about S78 and the rest

4) In reply to the claimants assertion the agreement is enforceable , when the agreement did not fulfil the requirements of S61(1) . Due to this according to S65(1) says an improperly executed agreement is only enforceable by order of the court however S127(3) which was in force at the time the agreement was signed says enforcement can not take place

5) When the CPR31.14 request was sent the claim had not been allocated to a track and therefore the claimant had a duty to provide the requested documents

6) The defendant did not reply to the multiple letters the claimant sent because he( or she) was waiting the fulfilment of my S78(1) request

7) I know you have covered this but there have been four assignments and you need to make this clear. The claimant has not produced evidence that the account was sold from GE to Santander to Newday to Lowell . ( You only need to show one of those wrong and the claim should fail)

8) I can't see any mention of a default notice - you need to mention that

9) Did they really write to you on 1st January- New Years Day?


I really hope this helps

Remember you need to serve this on the court and the claimants/solicitors

[NvLovell]

Re: N v Lovell

Oh and I will be able to make the court date as my flight back is early enough!

[warwick65]

Re: N v Lovell

Just catching up

I really can not write it for you as i am not at all qualified, just have some experience
So you know
S77 is for a loan
S78 is for a credit card or catalogue account - what is called a running credit agreement.
The bits for you are S78(1) and S78(6)


One final thought

If and I mean IF you have the means to pay some of this and you want to just get rid- you could write making an offer BUT

Head it without prejudice
And say something like , I have received your witness statement and although I think there is no merit in it , as a reasonable person I am willing to make an offer of £100 in full and final settlement of this claim once you have discontinued the claim and agreed in writing. You must also agree not to assign any part of the account now or in the future

I am sure someone else will be able to pop in and maybe give some more advice.
I am afraid i am off to bed now and am busy all morning, till about 4 tomorrow
[MENTION=5553]charitynjw[/MENTION] [MENTION=87380]Diana M[/MENTION] [MENTION=6]Amethyst[/MENTION] [MENTION=551]pt2537[/MENTION]

- - - Updated - - -

Oh and I will be able to make the court date as my flight back is early enough!

You say that but flights get delayed - then you have to get through passport control and to the court - are you absolutely sure?

A couple of years ago my OH was flying back from somewhere in South America via AMS and was delayed so missed the connection and was then 12 hours late home . Then we had BA this last weekend . Mind you Ryanair etc are normally quite good:-)

[warwick65]

Re: N v Lovell

Morning
Just want to remind you- you have until 4pm to get your witness statement in. If you do not you will get a ccj. It seems you were thrown a lifeline .

Remember all you appendices (Annex) will need to be included so hopefully not so big that email won't refuse them.

Good luck - sock it to them.

[NvLovell]

Re: N v Lovell

Thank you so much for your help, I really appreciate it

- - - Updated - - -

If anyone else has any thoughts on the letter to Lovell headed Without prejudice I'd appreciate it, sounds like a very good option. I assume I could email this to them along with the WS?


Thanks

[charitynjw]

Re: N v Lovell

I think I'd head it "Without Prejudice Save As To Costs".

[NvLovell]

Re: N v Lovell

Thanks, should I give a figure or word it that I would be open to an offer?

[NvLovell]

Re: N v Lovell

Draft 2, thoughts???




THE KINGSTON-UPON-THAMES COUNTY COURT
Claim No. XXXXX

BETWEEN:
Lowell Portfolio I LTD
Claimant
- and –
Defendant
XXXXX
_________________________________

WITNESS STATEMENT XXXXX



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

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

2. This claim is for a Debenhams Store Card credit agreement regulated under the Consumer Credit Act 1974. I believe the account was opened in 2005, however at no point at the time of signing were the full terms explained or seen by myself, in fact the card was sold to me upon the qualification of an offer on that day. This agreement was done instore by a store assistant.

3. The store card was given with a maximum credit of £500. No statement of account has been given to me by the Claimant so I am uncertain as to how the sum claimed has been arrived at.

4. On 28/09/2016 I made a written request to the Claimants for a true copy of the credit agreement under s.78(1) of the Consumer Credit Act 1974. I enclosed payment of £1. [EXHIBIT A].

5. Consumer Credit Act s.78(1) states
Duty to give information to debtor under running-account credit agreement.(1)The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)the state of the account, and
(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

(c)the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

6. The Claimant has failed to comply with s.78(1) of the Consumer Credit Act 1974 and by virtue of s.78(6) Consumer Credit Act 1974 cannot enforce the agreement.

7. Consumer Credit Act s.78(6) states;
(6) If the creditor under an agreement fails to comply with subsection (1)—

(a)he is not entitled, while the default continues, to enforce the agreement;

8. On 28/09/2016, in order to obtain more information about the claim, I made a written CPR request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT B].

9. On 04/10/2016 the Claimant solicitors wrote to me explaining they had placed the account on hold as they did not have the necessary documents to proceed.

10. On 01/01/2017 the Claimant solicitors wrote to me explaining they had lodged a Directions Questionnaire with the court, this despite still not responding to my request as per points 4 -8 above.

11. On 26/04/2017 the Claimant solicitors wrote to me and included their Witness Statement and a copy of what they claim to be a copy of the signed agreement which is ‘bound by the terms’ despite being unable to provide these terms. Exhibit SR1 in the Claimant solicitors Witness Statement.

12. With regards to the Claimants solicitors claims in point 11 of their Witness Statement at that time the CPR31.14 request was sent the claim had not been allocated to a track and therefore the claimant had a duty to provide the requested documents.

13. The Claimants solicitors claims, in point 13 of their Witness Statement to have contacted the defendant who then failed to respond, the defendant was in fact waiting for the fulfilment of the S78(1) request.

14. The Claimants solicitors claims, in point 15 of their Witness Statement that I, the defendant had not questioned the agreement before the claim was received, it was not until the claim was received that I made enquiries and became aware of some aspects of legislation, namely S78. Since then I have become aware of further areas of legislation including S61, S65 and S127 CCA 1974 as the law of property act 1925.

15. In reply to the Claimant solicitors assertion the agreement is enforceable, when the agreement did not fulfil the requirements of S61(1). Due to this according to S65(1) says an improperly executed agreement is only enforceable by order of the court however S127(3) which was in force at the time the agreement was signed says enforcement cannot take place.

16. There is a clear disconnect in lack of T&Cs and lack of information regarding the lack of Notice of Assignment and in particular the lack of information between the original agreement with GE Capital Bank Limited in 2005 to the ‘Exhibit SR2’, of the Claimants solicitors Witness Statement, when the alleged debt was sold to Lowell Portfolio in June 2014 - some nine and a half years later. According to the claimant there has been four separate assignments since 2005, again there is no evidence of this and a lack of detail throughout. There is no information from GE or Santander.

17. The Claimant solicitor has not provided an s87 Default Notice for this claim therefore this claim is not enforceable.

18. Throughout the Claimant solicitors documentation they mention CCA s77 which would refer to a fixed sum loan however they are claiming this documentation refers to Store Card credit, again shows the lack of clarity of this claim.

19. The Claimants solicitor maintains within their Witness Statement the agreement is enforceable however due the lack of an s87 Default Notice, lack of clarity of claim s77?- s78?, lack of complete T&Cs, lack of deeds of assignment, the age of the debt, the way in which the debt was sold and the other points raised in my points 1 – 18 above I believe strongly this debt is without doubt unenforceable.



Statement of Truth

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


Signed: ________________________________

Dated:

[warwick65]

Re: N v Lovell

I do hope you have filed that as wasn't today your deadline and I think 4pm is cut off point

[NvLovell]

Re: N v Lovell

Sent it via email, fingers crossed

Thank you for your help

[NvLovell]

Re: N v Lovell

So I've had a reply from Lovells, via email

- - - Updated - - -

Thank you for your e-mail the content of which has been considered.

I confirm that our Client will not agree to discontinue the Claim whilst the balance remains outstanding. You will need to provide us with your settlement offer in order for this to be considered by our Client.

If the parties agree to a settlement amount this will need to be paid in full before the hearing on 14 June 2017 takes place. Upon receipt of the settlement amount, our Client will then in turn notify the Court that the Claim has been settled.

However if the parties agree to a settlement by way of instalments this will need to be bound by the terms of a Tomlin Order.

Under the Tomlin Order you will agree to maintain the agreed payments until the balance outstanding is cleared. In the event that you default on payments, our client will be in a position to apply to the Court for Judgement by default.

Please note that if you wish to proceed under the Tomlin Order this will incur a fee of £100 which is added to the balance outstanding.

I trust this clarifies our position and look forward to hearing from you.

Regards

[MIKE770]

Re: N v Lovell

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