Asset Capital No5

IN THE COUNTY COURT AT PORT TALBOT

CLAIM NO [CLAIM NUMBER]

BETWEEN:

MISS [DEFENDANTS NAME]

DEFENDANT

v

ASSET LINK CAPITAL (N05) LTD

CLAIMANT

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WITNESS STATEMENT OF [DEFENDANTS NAME]

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I [DEFENDANTS NAME], of [DEFENDANTS ADDRESS] WILL SAY as follows:

1. The contents of this statement are true to the best of my knowledge, information and belief.

I make this witness statement in direct response to the claimants filing of a alleged witness statement of Alistair Bell (the ‘Alleged Witness’) dated 22rd September 2021 who's statement is based on his employment of a company called Kearns Solicitors. The Alleged Witness bases his entire statement on hearsay evidence from the computer system of the Claimant and the computer system of FCE Bank plc (the ‘Alleged Assignor’) trading as Ford Credit.

The failure of such systems have been brought to light by the recent case where sub-postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:

computerweekly.com/news/252475611/Subpostmasters-proved-right-on-IT-system-failures-as-calls-for-full-public-inquiry-mount

It is my understanding that the Claimant 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. The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.

It is disputed that the Claimant is entitled to claim for the 'return' of a Ford Focus with vehicle registration CF17 MVU as no contract or agreement exists between the Claimant and the Defendant.

2. In the Claimants own Witness Statement, the Claimant admit that the sources of his information and belief are the instructions of the Claimant and the written and computer records which have been provided to me. The Defendant avers that the Alleged Witness has not actually witnessed anything and his entire Witness Statement should be given no weight as evidence to support the Claimants claim.

BACKGROUND

3. It is not disputed that on 30th June 2017 the Defendant entered into an agreement numbered 877548110 (the 'Alleged Agreement') with FCE Bank plc trading as Ford Credit for the delivery of a Ford Focus with registration CF17 MVU ('the Goods') on Hire Purchase.

The Defendant avers that the Agreement was entered into as a result of irresponsible lending practices and in breach of the Consumer Credit Act 1974 Section 25(2B). This is subject to a complaint with the Alleged Assignor pending a formal investigation by the Financial Ombudsman.

4. It is not disputed that the Defendant signed the Agreement on 30th June 2017, and approved a direct debit on 29th July 2017.

5. It is disputed that in return for a deposit by way of part exchange valued at £704.65, credit of £14,444.48 was given to the Defendant. It is disputed that repayments were due to be made of 38 instalments of £199.46, with an optional final payment of £6865.00. It is disputed that the document exhibited by the Claimant at AB1 is a copy of the Agreement and direct debit agreement. [DETAIL]

6. It is not disputed due that due to the irresponsible and unaffordable nature of the Alleged Agreement he Defendant stopped paying her instalments after 31 August 2019.

It is not disputed that FCE Bank plc sent two Default Notices on 16 December 2019 and 29 January 2020. [DETAIL]

7. It is disputed that in 13 March 2020 the Claimant was assigned the rights and benefits of this agreement from FCE Bank plc. due to the constrains of:

⦁ The Common Law Doctrine of Privity of Contract - (A third party cannot litigate a contract they were not a party to);

⦁ Section 44 of the Companies Act 2006 - (a Deed of Assignment requires TWO signatures from the Assignor);

⦁ Section 136 of the Law of Property Act 1925 - (An assignee cannot buy future debts, they must have a valid Deed of Assignment and notice must be 'GIVEN'); and;

⦁ Section 196 of the Law of Property Act 1925 - (Service of documents must be by registered mail).

It is disputed that the Defendant was notified by the Claimant in writing on this date. The Claimant is put to strict proof to provide proof of service of any Notice of Assignment.

It is disputed that the documents exhibited by the Claimant at AB3 were ever GIVEN to the Defendant as required under Section 136 of the Law of Property Act 1925.

The Defendant avers that the word 'given' in Section 136 of the Law of Property Act 1925 denotes that Notice of Assignment should be handed to the Defendant or served in compliance with Section 196 of the Law of Property Act 1925, by registered mail. The Defendant denies that the Claimant ever handed or sent Notice of Assignment to the Defendant.

8. It is disputed that the Claimant was assigned the right to demand delivery of the Goods under the Agreement as of 23 March 2020.

• See; [Jones v Link Financial Ltd (2013) ] 1 WLR 693 Where it was found that three conditions for the validity of a LEGAL assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.

The Claimant is put to strict PROOF to show that all three elements of Legal Assignment are satisfied:

• a. that the assignment is absolute and not by way of a charge;

• b. that it is in writing under the hand of the assignor (the 'Deed of Assignment');

• c. and that express notice in writing has been given to the debtor.

9. It is disputed that the Claimant wrote to the Defendant on 2 July 2020 and 17 July 2020. The Defendant avers that no correspondence was received from the Claimant on or around the dates provided.

The Claimant claims that a DVLA Keeper check was completed on 31 July 2020 showing the Defendant's updated address and further correspondence sent on 7 August 2020, 4 September 2020 and 6 November 2020. No response was received from the Claimant on or around these dates provided by the Claimant.

10. It is disputed that correspondence was sent on 30 March 2021 warning that the matter would be passed to Solicitors . The Claimant claims that it was advised that the Defendant had again changed address. It is disputed that a Letter of Claim was sent to the Defendant at the provided updated address on 20 April 2021.

11. it is noted that proceedings were sent by the Claimant to the Court for issue on 30 July 2021.

12. It is not disputed that the claim was issued on 12August 2021, and a Defence filed on 15 August 2021

DEFENDANT DEFENCE

13. It is disputed that in the first instance that the Defence takes the form of a proforma or template and does not deal adequately with the issues of the claim. The Defence addresses specific points raised in the Particulars of Claim and just because the Claimant is reliant on template letters and proforma Particulars of Claim does not mean that the Defendant is also reliant upon such templates.

14. It is agreed that the Defendant disputes that the Claimant has legal standing. It is disputed that the Defendant claims this to be an unfair relationship. The Defendant avers that there is no agreement or contract between the Claimant and Defendant and any unfair relationship is between the Defendant and Alleged Assignor.

15. It is agreed that the Defendant disputes assignment, and also disputes the existence of the Agreement in so far as the Alleged Agreement breach the Consumer Credit Act regarding irresponsible lending practices and should not be regarded as a legally binding agreement.

Assignment

16. It is disputed that the document exhibited by the claimant at AB4 is a valid Deed of Assignment the document contains no signatures and does no meet the requirements of Section 44 of the Companies Act 2006:

44Execution of documents

• (1)Under the law of England and Wales or Northern Ireland a document is executed by a company—

  • (a)by the affixing of its common seal, or

  • (b)by signature in accordance with the following provisions.

• (2)A document is validly executed by a company if it is signed on behalf of the company—

  • (a)by two authorised signatories, or

  • (b)by a director of the company in the presence of a witness who attests the signature.

The Defendant avers that the Claimant does not have a Legal Assignment and cannot issue a claim as an Equitable Assignee:

See (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - "Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans."

The Claimant admits that it is NOT FCA registered, and seeks to rely on the exemptions under FSMA 2000 and the RAO 2001 for Specialist Purpose Vehicles. The Defendant avers that the Claimant has, at most, an Equitable assignment and cannot rely on any exemptions within the FSMA 2000 or the RAO 2001 for the purpose of bringing an action at law without first attaching the Alleged Assignor as party to the claim.

It is disputed that the claimant can rely on paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001) for the purpose of bringing a claim due to the constraints of the Financial Services and Markets Act 2000 (as amended) S. 26A (4).

(4) If the administration of an agreement involves the carrying on of a credit-related regulated activity, the agreement may not be enforced by a person for the time being exercising the rights of the lender under the agreement unless that person

(a) has permission, given under Part 4A or resulting from any other provision of this Act, in relation to that activity

(b) is an appointed representative in relation to that activity,

(c) is an exempt person in relation to that activity, or

(d) is a person to whom, as a result of Part 20, the general prohibition does not apply in relation to that activity.”

It is disputed that the claimant can rely on the registration of the company servicing this account as agents for the Claimant who are Link Financial Outsourcing Limited, who is FCA registered under number 606817.

17. It is disputed that through these exemptions the Claimant is entitled to issue proceedings for the recovery of debts assigned to them.

See: (Arrow Global Guernsey Limited v Watson (County Court at Blackpool) [2019]) - Particulars of Claim struck out as Claimant was not registered with the FCA to issue a claim in the County Court.

18. It is disputed that the Defendant cannot argue that there is no relationship and then simultaneously claim that there is a relationship but that it is unfair. The Defendants position is that no relationship exists between the Defendant and the Claimant and the Common Law doctrine of Privity of Contract applies:

See: Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 - The Lords agree fundamentally with the decision of the Court of Appeal; there was no contract between Dunlop and Selfridge and therefore Dunlop cannot sue.

The Defendant avers that an unfair relationship exists between the Alleged Assignor and the Defendant as the Alleged Agreement was entered into as a result of irresponsible lending practices and in breach of the Consumer Credit Act 1974 Section 25(2B). It is submitted that this relationship is unfair and as such the Defendant avers that no legally binding contract exists between the Alleged Assignor and the Defendant.

It is disputed that the Defendant has offered no evidence to suggest that this is an unfair relationship. The Defendant draws the courts attention to exhibit NJ1 which supports the Defendants position that the Alleged Assignors actions are subject to an irresponsible lending complaint pending a full investigation by the Financial Ombudsman.

It is disputed that the Defendant freely entered into a hire purchase arrangement for the delivery of a new vehicle, trading in a vehicle as a deposit. The Defendant avers that Alleged Assignor engaged in irresponsible lending practices and relied upon 'HIDDEN' and 'UNFAIR' terms within the contract in order to charge additional fees that the Defendant was unaware of.

It is not disputed that the Defendant entered into the Agreement at the trade premises, but was given her option to cancel the agreement within the Agreement. It is not disputed that the Defendant entered into a direct debit arrangement one calendar month after signing the Agreement. The Defendant avers that the scope of the irresponsible lending practices were not immediately apparent and as a vulnerable person he could and should have been made aware that he could have returned the vehicle at any time in that period.

19. It is not disputed that the Defendant defaulted on their repayments to FCE Bank plc, due to the scope of the irresponsible lending practices, far in advance of the Alleged Assignment to the Claimant.

It is disputed that the Defendant was contacted on several occasions by FCE Bank and latterly the Claimant via their agents and solicitors before proceedings were issued. It is disputed that the Claimant is entitled to seek recovery of debts in the same way that FCE Bank are.

It is disputed that they have acted appropriately, allowing a period of almost two years between the default and issuing proceedings. The Defendant avers that FCE Bank were well aware of their irresponsible lending practices and chose not to pursue the Defendant but instead allocate the account on an Equitable basis to a debt purchase company with no authority to bring an action at law.

20. It is denied that the Defendant is seeking to avoid the return of the vehicle by any means open to them with unfounded allegations.

The defendant respectfully invites the court to dismiss this claim and to allow such defendants costs as are permissible under civil procedure rule 27.14.

STATEMENT OF TRUTH

I believe that the facts stated in this 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 an honest belief in its truth.

Signed:

Name: [DEFENDANTS NAME]

Position: Defendant

Dated: 27 September 2021