In the County Court at [COURT LOCATION]
Claim No: ---------
Between:
LOWELL PORTFOLIO 1 LTD
Claimant
-and-
MR [DEFENDANTS NAME]
Defendant
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WITNESS STATEMENT OF [WITNESS NAME]
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I , [WITNESS NAME], of [THEIR COMPANY NAME AND ADDRESS], WILL SAY as follows:
INTRODUCTION
1. I am the paralegal in the employ of Lowell Solicitors Limited based at the address stated above. I have conduct of this matter subject to the supervision of my principals and I am duly authorised by the Claimant to make this statement on the Claimant's behalf.
2. The facts contained in this statement are known to me, save as where expressly stated and true to the best of my knowledge, information and belief.
BACKGROUND
3. The claim relates to an agreement ("the Agreement") dated 03 January 2019 between the Defendant and Ikano Bank AB (publ) ("the Assignor"), the account number being 1324670016526631.
A copy of the Welcome letter and application are exhibited hereto at ("SC1"). The Agreement was entered into by the Defendant at his previous address of [PREVIOUS ADDRESS] dated 03 January 2019.
4. The Defendant had the use and the benefit of the requisite credit under the Agreement before breaching the terms of the Agreement by failing to make the required payments. Subsequently the Agreement was formally terminated by the Assignor. A copy of the notice is exhibited hereto at ("SC2") dated 05 November 2019.
5. The detailed statements exhibited at ("SC3") clearly indicate and evidence that the Defendant did have the use and benefit of the Agreement.
6. The account was subject to a legal assignment dated 06 January 2020 pursuant to Section 136 of the Law of Property Act 1925 from the Alleged Assignor to the Claimant . The Claimant confirms that Notice of Assignment was sent to the Defendant on 15 January 2020. A reconstituted copy of the Notice of Assignment is exhibited hereto at ("SC4").
7. As such, given that there has been a valid assignment of the debt t from the Assignor to the Claimant the Claimant avers that it is entitled to payment of the debt from the Defendant.
8. A number of pre-action letters were sent to the Defendant examples of which are exhibited hereto at ("SC5"). These were sent to provide the Defendant with an opportunity to enter an affordable payment plan and provide them with the opportunity to raise a dispute in relation the the debt. The Claimant's process is put on hold on the account whilst the Defendant's allegations are being investigated and close the account if the Defendant's dispute was upheld.
9. The Claimant sent the Defendant a Pre-Action Protocol letter and response pack dated 4th November 2020. However, the Defendant failed to respond within the 30 days or raise any issues with the account. A copy of this letter is exhibited to ("SC6").
10. The Defendant responded to the Pre-Action Protocol letter on 11 December 2020 and requested a copy of the credit agreement, default notice, notice of assignment and deed of assignment to be provided to him.
11. The Claimant wrote to the Defendant on 05 January 2021 and provided them with a copy of the credit agreement, default notice and statement. A copy of this letter is exhibited to ("SC7").
12. The Claimant further wrote to the Defendant on 8th January 2021 and provided a copy of the Notice of Assignment dated 15 January 2020.
The Claimant also informed the Defendant that as the Deed of Assignment was a confidential agreement and contained commercially sensitive information and that they were under no obligation to provide this document. A copy of this letter is exhibited to ("SC8").
13. The Defendant wrote to the Claimant on 20 January 2021 and again requested a copy of the Deed of Assignment.
14. The Claimant wrote to the Defendant on 25 January 2021 and informed them that the Deed of Assignment is a commercially sensitive document and contained information the Defendant is not privy to. The Claimant had also informed the Defendant that they had provide the Notice of Assignment to show evidence that the assignment satisfied s136 of the Law of Property Act 1925. A copy of this letter is exhibited to ("SC9").
15. As the Defendant failed to respond to correspondence requesting payment of the outstanding account, legal proceedings were issued on 02 March 2021 and deemed served on 08 March 2021 to recover the outstanding balance in the sum of £938.65 and interest in the sum of £75.09.
THE DEFENDANT'S DEFENCE
16. A defence was filed by the Defendant who has requested that the Claimant provide evidence as to his liability for the debt. Further that the Defendant states that the Particulars of Claim are not clear and concise.
CLAIMANT'S RESPONSE TO THE DEFENCE
17. The Claimant confirms that a number of letters were sent to the Defendant since assignment of the debt confirming details of the account and encouraging the Defendant to contact the Claimant with a view to discussing repayment of the account. Copies of the reconstituted letters sent to the Defendant are exhibited hereto at ("SC5").
18. In the interests of communicating with the Defendant, and in compliance with the Data Protection Act 1998, the Claimant used it's internal tracing systems to verify whether the Defendant was being contracted at the correct address. This confirmed that the Defendant is an active resident at 12 Longford Grove, Hull, HU9 4NA. It will be noted that all correspondence from the Claimant was sent to the Defendant's current address.
19. The Credit Agreement, default notice and statements are exhibited at ("SC1"), ("SC2") and ("SC3") clearly indicate and positively evidence that the Defendant did enter into the Agreement and he had the use and benefit of the Agreement.
20. A copy of the Credit Agreement is exhibited at ("SC1") and clearly states the Agreement should only be signed if you want to be legally bound by its terms. A copy of the terms and conditions have been requested and will be provided upon receipt.
21. Therefore under the terms and conditions of the Agreement, the Assignor legally assigned the Agreement pursuant to Section 136 of the Law of Property Act 1925 from the Assignor to the Claimant, therefore the Claimant avers that it is entitled to the payment of the debt from the Defendant.
22. The statement exhibited at ("SC3") states that the Defendant made 5 payments to the Assignor in the sum of £27.87. It will be noted that the statement shows how the balance on the account is made up of including the arrears fees.
23. The Claimant then attempted to contract the Defendant several times in order to discuss repayment of this account, however the Defendant failed to contact the Claimant and/or reply to correspondence. Copies of the emails and letters sent to the Defendant are exhibited hereto at ("SC5"). Further, the Defendant has failed to provide any evidence of the issues mentioned in his defence.
24. The Claimant’s intention throughout its attempts to communicate with the Defendant was to offer either an affordable repayment plan or resolve the Defendant’s dispute. Had the Defendant contacted the Claimant and explained her reason for non-payment, the Claimant's process is to place the account on hold and conduct and investigation with the Assignor. Should the Defendant's dispute have been valid, the Claimant would have closed the account. The Defendant's refusal to communicate has led to litigation being necessary.
25. The Defendant has stated that the Particulars of Claim are not clear and concise, however, the Claimant submits as per CPR 7 (5.2) when issuing a claim on the Money Claims online website a detailed particulars of claim must either be -
(1) Included in the online claim form bust must be limited in size to not more than 1080 characters (including spaces); or
(2) Served and filed by the claimant separately from the claim form in accordance with paragraph 6 but the claimant must -
(a) State that detailed particular of claim will follow; and
(b) include a brief summary of the claim.
26. The Claimant issued the claim on the Money Claims Online Website on 02 March 2020 and has complied with the above mentioned directions.
27. The Claimant denies that the Defendant's defence carries any prospect of successfully defending the claim. The Defendant has failed to explain or evidence:
a. Why he should not have to repay the money he has had the benefit of;
b. Who is responsible for accruing the debt;
c. Why he failed to raise the dispute with the Claimant before the Claimant issued proceedings in this matter.
28. The Defendant's position is particularly tenuous as the evidence exhibited by the Claimant nullifies his Defence.
29. The Claimant respectfully submits that the Defendant's claim is without merit and untenable.
30. The Defendant has failed to provide proof of the matters now relied upon in his Defence.
ORDER SOUGHT
31. The account was purchased in good faith and as far as the Claimant is aware, the debt is due and owing.
32. We confirm that the Claimant has the legal right to bring these proceedings against the Defendant and that the full amount claimed remains due and outstanding to the Claimant.
33. The Claimant avers that the Defendant's Defence has no reasonable prospects of success. The Claimant respectfully requests that the Defendant's Defence be struck out pursuant to CPR 3.4(2) (a) and judgment be awarded in favour of the Claimant plus costs, the costs of which will be confirmed by the advocate at the hearing.
STATEMENT OF TRUTH
I believe that the facts stated 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 an honest belief in its truth.
Dated this day 22 JULY 2021
Signed:
Name: [CLAIMANT'S REPRESENTATIVE]
In the County Court at [COURT LOCATION]
Claim No: ---------
Between:
MR [DEFENDANTS NAME]
Defendant
-and-
LOWELL PORTFOLIO 1 LTD
Claimant
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WITNESS STATEMENT OF MR [WITNESS NAME]
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I , [WITNESS NAME], of [WITNESS ADDRESS] , WILL SAY as follows:
INTRODUCTION
1. I am the defendant in this case. The contents of this statement are true to the best of my knowledge, information and belief.
2. . I make this witness statement in direct response to the claimants filing of a witness statement of [THIER WITNESS NAME] (the ‘Alleged Witness’) dated 22 July 2021 who's statement is based on her employment of a company called Lowell Solicitors Limited. The Alleged Witness bases her entire statement on hearsay evidence from the computer system of the Claimant and the computer system of Ikano Bank (the ‘Alleged Assignor’).
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:
https://www.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.
Within this statement I refer to various documents, these are now produced in bundle marked (‘SH1’), (‘SH2’), (‘SH3’) and (‘SH4).
BACKGROUND
3. It is not disputed that the claim relates to an agreement ("the Agreement") dated 03 January 2019 between the Defendant and Ikano Bank AB (publ) ("the Alleged Assignor") the account number being 1324670016526631. It is disputed that the Claimant has any entitlement or Legal Standing to claim for the benefit of an agreement that they were not a party to.
It is disputed that the document exhibited at ("SC1") is a copy of a Welcome letter and application in relation to the Agreement.
It is not disputed that the Agreement was entered into by the Defendant at his previous address of Longford Grove, Hull, HU9 4NA dated 03 January 2019. 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). The Agreement is currently subject to a complaint of irresponsible lending pending a formal investigation by the Financial Ombudsman.
The Defendant avers that the relationship with the Alleged Assignor is an unfair relationship. Section 140A of the Consumer Credit Act 1974 (CCA) provides that a court may order the lender to reduce, discharge or repay a loan under a credit agreement should it determine that the relationship between the lender and the borrower is unfair to the borrower.
4. It is disputed that the Defendant had the use and the benefit of the requisite credit under the Agreement due to the irresponsible lending activities of the Claimant who by not adhering to the Consumer Credit Act 1974, voided the contract prior to it's execution. It is disputed that the Defendant breached the terms and conditions of the Agreement by failing to make the required payments.
The Defendant avers that in engaging in irresponsible lending practices the Alleged Assignor breached any contract prior to unreasonable and unfair demands for payment being made. It is disputed that subsequently the Agreement was formally terminated by the Alleged Assignor as the Agreement had already been terminated by the Alleged Assignors non compliance with the Consumer Credit Act 1974. It is disputed that the document exhibited at ("SC2") by the claimant is a valid copy of a Default notice dated 05 November 2019 in so far as the Agreement had already been terminated by the actions of the Alleged Assignor.
5. It is disputed that the documents exhibited by the Claimant at ("SC3") clearly indicate and evidence that the Defendant di have the use and the benefit of the Agreement. The Defendant avers that the documents are merely printouts from a computer system and as hearsay they should should not be relied upon to give any weight to the Claimants case. The Defendant avers that the Claimant as a debt purchase company, purchases accounts on an EQUITABLE basis without complying with the Law of Property Act 1925 and therefore has no Legal Standing to bring this claim before the County Court.
6. It is disputed that the benefit of the Agreement was subject to a legal assignment dated 06 January 2020 pursuant to Section 136 of the Law of Property Act 1925 from the Alleged Assignor to the Claimant due to the constraints of:
⦁ (i) Section 44 of the Companies Act 2006;
⦁ (ii) The Regulatory Reform (Execution of Deeds and Documents) Order 2005 (S.I.2005/1906), arts. 1(1),3;
⦁ (iii) Section 136 of the Law of Property Act 1925; and;
⦁ (iv) Section 196 of the Law of Property Act 1925.
The Claimant is put to strict proof to provide a copy of the Sale Agreement (the 'Deed of Assignment') they rely on to establish Legal assignment from the Alleged Assignor to the Claimant. 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
It is disputed copy of the Notice of Assignment dated 06 January 2020 , exhibited by the Claimant at (“SC1”) has been GIVEN to the Defendant. The Defendant avers that the word 'GIVEN' in Section 136 of the Law of Property Act 1925 denotes that notice should be handed to the debtor or served in compliance with with Section 196 of the Law of Property Act 1925, by registered mail. The Claimant has provided no evidence whatsoever that Notice of Assignment was given to the Defendant and relies on a reconstituted copy of the document they allege to have sent to the Defendant as they are unable to locate any actual document they claim to have sent.
7. It is disputed that there has been a valid assignment of the benefit of the Agreement from the Alleged Assignor to the Claimant as Nemo dat quod non habet - "no one gives what they do not have" and the fact that the Claimant has failed to demonstrate any of the THREE requirements to establish LEGAL assignment. It is disputed that the Claimant is entitled to payment of the benefit of the Agreement from the Defendant.
The Defendant draws to the courts attention to exhibit ("SW1") which demonstrates that the Defendant has requested the Deed of Assignment on no less than THREE separate occasions before making a CPR-18 request for this document. The Claimant has failed to provide the Deed of Assignment required to prove any Legal Standing to bring a claim.
8. It is not disputed that a number of pre-action letters were sent to the Defendant. It is disputed that these were sent to provide the Defendant with an opportunity to enter an affordable payment plan and provide them with the opportunity to raise a dispute in relation the the alleged debt. It is disputed that the Claimant's process is put on hold on the account whilst the Defendant's allegations are being investigated and close the account if the Defendant's dispute was upheld.
The Defendant avers that the Claimant's simply adopts a Corporate complaint procedure which do not question if the Claimant's has the Legal Authority to give 'good discharge' of the account in question and limits itself to examining if they as a Corporation can claim payment on a Equitable basis.
9. It is not denied that the Claimant sent the Defendant a Pre-Action Protocol letter and response pack dated 4th November 2020. It is denied that the Defendant failed to respond within the 30 days or raise any issues with the account.
10. It is not disputed that the Defendant responded to the Pre-Action Protocol letter on 11 December 2020 and requested a copy of the credit agreement, default notice, notice of assignment and deed of assignment to be provided to him. The Defendant avers that the Claimant has failed to provide any evidence of Legal assignment and has no Legal Standing to bring this claim:
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."
11.. It is not disputed that the Claimant wrote to the Defendant on 05 January 2021 and provided them with a copy of the credit agreement, default notice and statement. Despite repeated requests the Claimant has failed to provide any evidence of their Legal Standing and relies solely on documents that show there is no agreement between the Claimant and the Defendant.
12. It is disputed that the Claimant further wrote to the Defendant on 8th January 2021 and provided a copy of the Notice of Assignment dated 15 January 2020. It is disputed that any Notice of Assignment was ever given to the Defendant. The Defendant avers that the word 'GIVEN' in Section 136 of the Law of Property Act 1925 denotes that notice should be handed to the debtor or served in compliance with with Section 196 of the Law of Property Act 1925, by registered mail. The Claimant has failed to provide any evidence of valid service of Notice of Assignment.
It is not disputed that the Claimant, made the claim, the at the Deed of Assignment was a confidential agreement and contained commercially sensitive information and that they were under no obligation to provide this document. The Defendant avers that the Claimant is simply claiming that they do not have to provide the Deed of Assignment because they do not have any valid Legal assignment. The Claimant could easily redact any commercially sensitive information and provide the Deed of Assignment to establish their Legal Standing in this case, but choose not to do so as it would demonstrate that they are not compliant with the THREE elements of Legal Assignment.
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.
13. It is agreed that the Defendant wrote to the Claimant on 20 January 2021 and again requested a copy of the Deed of Assignment. The Defendant avers that despite being afforded multiple opportunities to resolve the matter by providing the evidence of assignment as requested, the Claimant has steadfastly refused to provide any evidence of their basic Legal Standing to issue this claim.
14. It is agreed that the Claimant wrote to the Defendant on 25 January 2021 and informed them that the Deed of Assignment is a commercially sensitive document and contained information the Defendant is not privy to. The Defendant avers that the Claimant has refused to provide the Deed of Assignment, despite being advised that the Defendant was willing to accept redacted copies of this document, removing any risk of the Claimant's sharing of sensitive information.
The Defendant draws the courts attention to another debt purchase company who despite providing what they relied on as a 'Deed of Assignment', it was held that no assignment was proved:
PRA Group (UK) Limited v Mayhew at Central London County Court on 22nd March 2017
Where Recorder Bellamy held that even despite PRA providing a Reconstituted Agreement, it was viewed as "irredeemably unenforceable" and despite providing unredacted Deeds of Assignment "no assignment was proved".
It is disputed that providing an alleged 'Notice of Assignment shows any evidence of compliance with s136 of the Law of Property Act 1925 as a valid notice of assignment would only satisfy one element of the THREE elements required under Section 136 of the Law of Property Act 1925.:
136 Legal assignments of things in action.
(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—
The Defendant avers that the Claimant has failed to provide any evidence of their compliance with any of the THREE elements of assignment required under Section 136 of the Law of Property Act 1925.
15. It is disputed that the Defendant failed to respond to correspondence requesting payment of the outstanding account. The Defendant responded disputing the Claimant's request for payment and asking for proof that the Claimant was the Legal owner of the account in question and could give good discharge of any benefit of the Agreement:
See; (Van Lynn Developments v Pelias Construction Co Ltd 1968.[3] All ER 824) Where Lord Denning MR said 'the debtor is entitled to view the sale agreement to ensure that the assignee can give him good discharge under the contract';
It is a matter of record that legal proceedings were issued on 02 March 2021 and deemed served on 08 March 2021. The Defendant avers that the claim was issued unlawfully as the Claimant has no entitlement or Legal Standing to claim the sum of £938.65 and interest in the sum of £75.09.
THE DEFENDANT'S DEFENCE
16. It is not disputed that a defence was filed by the Defendant who has requested that the Claimant provide evidence as to his liability for the benefit of the Agreement. The Defendant state that the Particulars of Claim are not clear and concise, as in, the Particulars of Claim do not identify:
⦁ (a) any clear summary of the facts on which the claim is based;
⦁ (b) any explanation of how the amount of financial loss has been calculated;
⦁ (c) any list those documents upon which the claimant intends to rely;
⦁ (d) the date that the Claimant claims that the Defendant entered into the Alleged Agreement with the Alleged Assignor;
⦁ (e) on which date(s) the Defendant had allegedly failed to maintain the repayments;
⦁ (f) the exact date when the Alleged Assignor terminated the Alleged Agreement and gave notice of the same;
⦁ (g) the date, if any, that a Default Notice was served in relation to the Alleged Agreement pursuant to CCA s. 87 & 88 (1);
⦁ (h) the date, if any, that the Claimant claims any Notice of Assignment was ever given to the Defendant in accordance with Section 136 of the Law of Property Act 1925 and if this was compliant with Section 196 of the Law of Property Act 1925;
⦁ (i) whether the Claimant is relying on an Equitable Assignment or a Legal Assignment.
⦁ (j) That the Pre-action Conduct protocol has ben complied with. This should be stated in the claim form or particulars of claim. See Practice Direction-Pre-Action Conduct para.9.7. There is no claim by the defendant on the Claim Form that they have complied with Pre-Action Protocol.
The defendant invites the court to dismiss this claim as it is in breach of pre court protocols in relation to the particulars of claim under practice direction 16, set out by the ministry of justice and also civil procedure rules under 16.4 and to allow such defendants costs as are permissible under civil procedure rule 27.14.
CLAIMANT'S RESPONSE TO THE DEFENCE
17. It is not disputed that a number of letters were sent to the Defendant after the date the Claimant claims for Alleged Assignment, giving details of the Alleged Assignors details in relation to the account and requesting payment. The Defendant avers that he contacted the Claimant and disputed their claim and requested evidence of assignment, something which the Claimant has be unable or unwilling to supply, despite repeated requests.
18. It is not disputed that the Defendant's address is 12 Longford Grove, Hull, HU9 4NA. It should be noted that the Defendant responded to the Claimant disputing the debt and asking for proof of the Claimant's ability to give good discharge of the account in question, something that the Claimant has refused to provide despite repeated requests by the Defendant. See exhibits ("SW1").
19. It is disputed that the documents exhibited by the Claimant at ("SC1"), ("SC2") and ("SC3") are valid default notice and statements of the Agreement. The Defendant aver that the Alleged Witness has no personal knowledge to the validity of the documents or if they were ever sent in relation to the Agreement. It is disputed that these documents provide any factual evidence or assist the Claimant's case in any way. The Defendant avers that these documents are hearsay evidence and should be given no weight by the court in deciding the outcome of this claim.
20. It is disputed that the document exhibited by the Claimant at ("SC1") is a valid copy of the Credit Agreement in relation to the Agreement. The Defendant avers that the document is illegible and is a poorly scanned document that does not meet the requirements of the Consumer Credit Act 1974.
21. It is disputed that the Alleged Assignor legally assigned the Agreement pursuant to Section 136 of the Law of Property Act 1925 from the Alleged Assignor to the Claimant. Because Nemo dat quod non habet - "no one gives what they do not have" and the Claimant, despite being afforded the opportunity on numerous occasions has failed to provide any evidence of Legal Assignment. Had the Claimant provided, upon request or formal CPR-18 request, a redacted copy of the Deed of Assignment, this would have gone some way to establishing their Legal Standing:
See; Promontoria (Oak) Limited v Emanuel [2020] EWHC 104 (Ch) - Marcus Smith J concluded that the decision of the recorder at first instance to permit the claimant’s reliance on the redacted copy deed was sufficiently flawed as to require setting aside.
The Defendant avers that the Claimant has not even made the basic effort of redacting and providing the Deed of Assignment they rely on in this matter and as such has provided no evidence of Legal Assignment as required under the Law of Property Act 1925.
22. It is disputed that the document exhibited by the Claimant at ("SC3") is a valid statement. The printout of documents from the Claimant's computer system should be regarded as hearsay evidence and no weight given to them in deciding this case.
23. It is disputed that the Claimant then attempted to contract the Defendant several times in order to discuss repayment of this account. The Claimant is not the Alleged Assignor and has no Legal Standing or right to ask for payment of the account in question. It is disputed that the Defendant failed to contact the Claimant and/or reply to correspondence. It is disputed that the documents exhibited by the claimant at ("SC5") were not responded to. The Defendant has disputed the the Claimant's demands on a number of occasions as demonstrated in exhibit ("SW1"),("SW2") and ("SW3"). It is disputed that the Defendant has failed to proide any evidence of the issues as mentions in his defence, as this Witness Statement shows.
24. It is denied that the Claimant’s intention throughout its attempts to communicate with the Defendant was to offer either an affordable repayment plan or resolve the Defendant’s dispute. The Claimant is a debt purchase company who seeks to profit form demanding payment for sums that are not enforceable by the Alleged Assignor.
It is denied that the Defendant’s refusal to communicate directly about the account has led to litigation being necessary. The Defendant avers that the Claimant, as a debt purchase company, operates on the purchase of debts on an Equitable basis and as such they cannot bring an action at law without attaching the Alleged Assignor:
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 assignment of debt by way of a charge is prohibited under Section 136 of the Law of Property Act 1925 and the Defendant avers that the Claimant is not compliant with ANY of the THREE requirements of Section 136 of the Law of Property Act 1925.
The Defendant avers that the Claimant has sought to bring a matter to court that has no controversy. The Claimant's claim that the Defendant's refusal to communicate has led to litigation being necessary is without merit. The Claimant has been afforded plenty of opportunity to provide evidence of the Legal title in the form of a Deed of Assignment, but has refused and has sought to bring a matter to court that they are not legally entitled to bring.
25. It is disputed that because the Claimant used the Money Claims online website they were excused from providing a concise Particulars of claim. It is contended that the Claimant is in breach of Rule 16.4(a) of the Civil Procedure Rules 1998 and the court is respectfully asked to dismiss this claim.
CPR 16.4(a)
Contents of the particulars of claim
16.4
(1) Particulars of claim must include –
(a) a concise statement of the facts on which the claimant relies;
It is disputed that the Claimant is entitled to rely on CPR 7 (5.2) in any way in relation to their Particulars of Claim as the online form is only limited to 1080 characters (including spaces) or can be filed separately with no such limit.
26. It is a matter of record that the Claimant issued the claim on the Money Claims Online Website on 02 March 2020. It is disputed that the Claimant has complied with the directions mentioned or with CPR 16.4 (a).
27. It is disputed that the Defendant's defence does not carry any prospect of successfully defending the claim.
it is disputed that:
a. It does not explain why he should not have to repay, to a third party, money loaned irresponsibly - the Defendant avers that this has been explained;
b. who is responsible for accruing the alleged debt - The Defendant avers that this has been explained;
c. why he failed to raise the dispute with the Claimant before the Claimant issued proceedings in this matter - The Defendant avers that this matter was disputed some 3 months before the issuing of the Claim and the Claimant disregarded the disputes and ignored all requests for proof of ownership of the account.
28. It is disputed that the Defendant's position is particularly tenuous. It is disputed that the hearsay evidence exhibited by the Claimant nullifies his Defence. The Defendant avers that it is the Defendant's evidence that has nullifies the Claimant's claim.
29. The Defendant respectfully submits that the Claimant's claim is without merit and untenable.
30. It is disputed that the Defendant has failed to provide proof of the matters now relied upon in his Defence. The Defendant avers that it is the Claimant who by refusing to provide the Deed of Assignment relied on in this matter has frustrated the Defendant's attempt to conduct due diligence in this matter and establish that the Claimant is able to give good discharge of the account in question. By refusing to show any evidence of legal standing the Defendant has been unable to examine points raised in the Defence that would show the Claimant's total lack of Legal Standing to bring this matter before the Court. In particular:
⦁ Section 44 of the Companies Act 2006;
⦁ The Regulatory Reform (Execution of Deeds and Documents) Order 2005 (S.I. 2005/1906), arts. 1(1),3;
⦁ Section 136 of the Law of Property Act 1925
ORDER SOUGHT
31. It is disputed that the account was purchased in good faith, the Claimant will be aware that some of alleged debts on the bulk list of debts will simply not be owed, be it for irresponsible lending or other breaches of the Consumer Credit Act 1974 or simply because of fraudulent claims listed in bulk with other accounts that may be genuine. The Claimant is a bulk debt purchaser who purchases lists of debts, for a small percentage of what they are claiming, quite often in advance of the debt being created or any default notice issued. This type of purchase is in breach of one of the THREE elements of Legal assignment. To be compliant with Section 136 of the Law of Property Act 1925, the purchase must not be 'by way of a charge'. The Claimant has failed to demonstrate that the assignment is not by way of a charge. The Claimant has failed to demonstrate, despite repeated requests, that they have an assignment 'under the hand' of the Alleged Assignor and they have failed to provide any evidence of service of notice of assignment which must be given to the debtor or served by registered mail under Section 196 of the Law of Property Act 1925.
32. It is disputed that the Claimant has the legal right to bring proceedings against the Defendant. The Claimant has failed to provide any evidence that they have the Legal right to bring this claim.
It is disputed that the full amount claimed in the Particulars of Claim remains due and outstanding to the Claimant. The Defendant avers that the Claimant is attempting betterment by claiming more that than the amount they have spent in purchasing a bulk list of alleged debts on an Equitable basis. It is disputed that the any amount is owing to the Claimant and the Claimant is not entitled to any relief in this matter as the Claimant suffers no loss due to the actions of the Defendant.
33. It is disputed that the Defendant's defence has no reasonable prospects of success. The Defendant avers that it is the Claimant's case that is without merit and should be struck out pursuant to CPR 3.4(2) (a) and judgment be awarded in favour of the Defendant plus costs permissible under Civil Procedure Rule 27.14.
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.
I would also like to take this opportunity to remind the Claimant that under Civil Procedure Rule Part 39 PD 39a (3.3) any documents upon which the claimant intends to rely the ORIGINALS should be brought to any subsequent hearing for examination. The Defendant reserved the right to cross examine any Alleged Witness relied on by the Claimant in the case in relation to what they claim to have witnessed first hand.
STATEMENT OF TRUTH
I believe that the facts stated 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 an honest belief in its truth.
Dated this day 25 JULY 2021
Signed:
Name: [DEFENDANT]