Lowell/Next Witness Statement

To be filed by 6th February.

In the County Court at Wigan

Claim No: J6K3QE5F

Between:

Lowell Portfolio I Ltd

Claimant

-and

[DEFENDANT'S NAME]

Defendant

-----------------------------------------------------------

WITNESS STATEMENT OF AMY ABDUL

------------------------------------------------------------

I, Amy Abdul, of Overdales Legal Limited, whose registered address is PO Box 1399 Bradford BD5 5GA, WILL SAY as follows:

INTRODUCTION

1. I am a Senior Complex Litigation Paralegal employed by Overdales Legal Limited, the solicitors instructed by the Claimant. 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 are true to the best of my knowledge, information and belief. The Claimant’s solicitors have access to the Claimant’s case record systems, from which the information in this statement emanates.

3. This Witness Statement is made in response to the Defendant’s Defence dated 27 September 2022.

BACKGROUND

4. The Claim consists of debts due under the following accounts that have been assigned to the Claimant:

Claimant’s reference Original creditor Original creditor reference

385252044 Next Retail Limited 6366320006392580

385263645 Next Retail Limited OB926030

5. The Claimant will now provide information on each of the aforementioned accounts in turn.

Account 1

6. Account 1 relates to an Agreement regulated by the Consumer Credit Act 1974 (“Agreement 1”) dated 16 August 2010 between the Defendant and Next Retail Limited trading as Next Directory (“Assignor”), for the supply and usage of a Next catalogue account. A copy of the Agreement is hereto exhibited at (“AA1”).

7. Although the Defendant had the use and benefit of the Agreement, the Defendant breached the Agreement by failing to maintain the agreed payments. The Defendants last payment to the Assignor was £75.00 on 28 February 2019, this was insufficient to clear the outstanding balance. A copy of the Statement of Account is hereto exhibited at (“AA2”).

8. As a result of the Defendants breach the Assignor issued a Default Notice to the Defendant, dated 2 August 2019, under section 87(1) of the Consumer Credit Act 1974. The Defendant did not remedy the breach by 30 August 2019. A copy of the Default Notice is hereto exhibited at (“AA3”).

9. The debt was subject to Legal Assignment by written instrument from the Assignor to the Claimant on the 30 June 2021 pursuant to section 136 of the Law of Property Act 1925. Notices of Assignment were sent to the Defendant on behalf of the Assignor and the Claimant, to the Defendant’s current address of 29 Charterhouse Road, Wigan WN3 4LS on 19 July 2021. A copy is hereto exhibited at (“AA4”).

The Claimant allocated this account the reference of 385252044. The balance on assignment was £1,553.00.

Account 2

10. Account 2 relates to an Agreement regulated by the Consumer Credit Act 1974 (“Agreement 1”) dated 16 August 2010 between the Defendant and Next Retail Limited trading as Next Directory (“Assignor 1”), for the supply and usage of a Next online catalogue account. A copy of the Agreement is hereto exhibited at (“AA5”).

11. Although the Defendant had the use and benefit of the Agreement, the Defendant breached the Agreement by failing to maintain the agreed payments. The Defendant’s last payment to the Assignor was £40.00 on 28 February 2019, this was insufficient to clear the outstanding balance. A copy of the Statement of Account is hereto exhibited at (“AA6”).

12. As a result of the Defendant’s breach the Assignor issued a Default Notice to the Defendant, dated 14 August 2019, under section 87(1) of the Consumer Credit Act 1974. The Defendant did not remedy the breach by 13 September 2019. A copy of the Default Notice is hereto exhibited at (“AA7”).

13. The debt was subject to Legal Assignment by written instrument from the Assignor to the Claimant on the 30 June 2021 pursuant to section 136 of the Law of Property Act 1925. Notices of Assignment were sent to the Defendant on behalf of the Assignor and the Claimant, to the Defendant’s current address on 19 July 2021. A copy is hereto exhibited at (“AA8”). The Claimant allocated this account the reference of 385263645. The balance on assignment was £819.62.

14. Prior to the commencement of this Claim, the Claimant had been attempting to contact the Defendant to recover the amount of £2,372.62. The Claimant sent a total of 16 letters to the Defendant after the Notices of Assignment on the account from 2021 until the Pre Action Protocol letter was sent on the 5 July 2022. Examples of the letters and Pre-Action Protocol letter are exhibited hereto at (“AA9”) and (“AA10”) .

15. The Defendant responded to the Pre Action Protocol letter with a letter dated 22 July 2022 stating that the debt was disputed and all future correspondence should be via email. The Defendant requested proof of the debt being owed with a copy of the Agreement, proof that her information had been obtained in compliance with GDPR, the firm’s Financial Conduct Authority authorisation number and the firm’s Information Commissioner Office registration number. The Defendant also enclosed a fee schedule. A copy of the letter is exhibited hereto at (“AA11”). A response was provided to the Defendant via email on 3 August 2022 which included a copy of the Agreement as per the Defendant’s request. A copy of the email is exhibited hereto at (“AA12”). As no response was received to the email, legal proceedings were issued against the Defendant 16 May 2022 and were deemed served on 20 May 2022 upon the Defendant’s current address.

16. After the Claim was issued on 16 September 2022, the Defendant sent the Claimant a letter dated 1 October 2022 with a notice of irrevocable estoppel. The letter also requested the original agreement, the notice of assignment, default notice warning letter, default notice, termination notice, the amount paid by the Claimant for the debt. The Claimant replied to the Defendant via email on 26 October 2022 to inform her that the relevant documentation had been requested from the Assignor and would be provided in due course, if available. A copy is hereto exhibited at (“AA13”).

17. The Defendant sent the Claimant a Part 18 request dated 22 November 2022. The Claimant replied to the Defendant via email and letter on 23 January 2023 stating a Part 18 Response would be provided in due course. The Claimant enclosed copies of the default notices, agreements, notice of assignments and statements of accounts for both accounts within the email and letter. A copy is hereto exhibited at (“AA14”).

THE DEFENDANT’S DEFENCE

18. The Defence is a generic template commonly found on internet forums and does not seek to address this matter of the outstanding balance specifically. Further, the Defence is repetitive and as such the Claimant summarises its understanding of the Defence as follows. The Defendant:-

a. alleges that the Claimant has no legal standing to bring the Claim and disputes the assignment;
b. disputes the balances claimed;
c. requests copy documents;
d. puts the Claimant to proof that compliant default notices were sent;
e. disputes that the agreements were terminated due to non-payment and puts the Claimant to proof;
f. requests a full breakdown of the amounts claimed; and
g. alleges the Particulars of Claim do not comply with CPR 16.

THE CLAIMANT’S REPLY TO THE DEFENDANT’S DEFENCE

19. The Claimant repeats paragraphs 3 to 18 above and submits that the Defendant’s Defence is without merit and untenable, as evidenced by the documents exhibited to this Witness Statement.

20. The Claimant submits that the Notices of Assignment were sent to the Defendant’s current address, which is the same address as listed by the Defendant on the Defence. Notices of Assignment were not returned to the Claimant via Royal Mail marked ‘return to sender’, therefore they were deemed served.

21. The Claimant submits there is no legal requirement for assignment of debt to be in the form of a Deed. Further, the Claimant is under no obligation to disclose the Debt Sale Agreements to the Defendant. No part of those contracts could provide, support or assist in any Defence and the Defendant has neither need nor right to be privy to that content. The Notices of Assignment that were sent to the Defendant discharge the Claimant’s obligation.

22. The Claimant submits that it is the correct entity to bring these proceedings. The Claimant avers that the Defendant it is the correct entity to bring these legal proceedings against.

23. The Claimant submits the Defendant has not denied entering into the Agreements with the Assignors, she has merely disputed the validity of the Agreements by stating they were void as the alleged Assignors were in breach of Section 138D of the Financial Services and Markets Act 2000 in respect of unfair lending.

24. The Claimant submits that the balances are correct as evidenced by the Statements of Accounts annexed to the Witness Statement. Therefore the debt is owed to the Claimant for the sums sought.

25. The Claimant submits that all the Default Notices were compliant with section 87(1) of the Consumer Credit Act 1974.

26. The Claimant submits that it has received confirmation in good faith from the Assignors that the Default Notices were sent to the Defendant’s current address and such is evidenced by the Exhibits in the Witness Statement. A further copy has been send to the Defendant via email.

27. The Claimant submits that their Particulars of Claim are compliant with CPR Rule 16.4(a), as they have set out a clear and concise statement of fact. The Claimant has made it clear as to who the Defendant has entered into the Agreement 1 and Agreement 2 with, provided the reference number as well as making it clear why the Agreements where terminated.

28. The Claimant submits that under CPR Rule 16.4 there is no requirement to identify or plead the date the cause of action accrued.

29. The Claimant submits that the Defendant is in breach of CPR Rule 16.5(2)(a) as she has not provided a reason for denying the Claim, she has simply contested its legality.

30. The Claimant submits that the Statements of Accounts exhibited positively affirm how the Defendant accrued the debt; therefore, establishing the Claimant’s case and the Defendant’s liability.

31. The Defendant has failed to adequately explain why she should not have to pay for the service and goods of which they has had the benefit.

32. The Claimant submits it was assigned the benefit of the debts and not the burden. The Accounts were assigned to the Claimant in good faith on the assurance that the balances were valid and owing.

33. For the reasons stated above, the Claimant respectfully submits that it is entitled to recover the outstanding sum, which is due and owing by the Defendant.

34. The Claimant respectfully invites the Court to strike out the Defence and award Judgment in favour of the Claimant and costs.

ORDER SOUGHT

35. The Claimant requests that Judgment is granted in favour of the Claimant for the sum of £2,159.54 which is inclusive of the following:

a. Principal debt of £2,372.62;
b. Interest in the sum of £189.81;
c. Issue fee of £115.00;
d. Fixed commencement costs in the sum of £80.00; and
e. Hearing fee in the sum of £181.00; and
f. Claimant’s costs of attendance at the hearing which will be confirmed by the advocate at the hearing, but not expected to exceed the sum of £228.00 inclusive of VAT.

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 23 January 2023

Signed: Amy Abdul

Name: Amy Abdul

Position: Senior Paralegal

In the County Court at Wigan

Claim No: J6K3QE5F

Between:

Lowell Portfolio I Ltd

Claimant

-and

[DEFENDANT'S NAME]

Defendant

-----------------------------------------------------------------------

WITNESS STATEMENT OF [DEFENDANT'S NAME]

-----------------------------------------------------------------------

I,[DEFENDANT'S NAME], of [DEFENDANT ADDRESS], WILL SAY as follows:

1. I am the defendant in this case. The contents of this statement are true to the best of my knowledge, information and belief.

I make this witness statement in response in direct response to the claimants filing of a alleged witness statement of Amy Abdul (the ‘Alleged Witness’) dated 23rd January 2023 who's statement is based on his employment of a company called Overdales Solicitors.

The Alleged Witness bases her entire statement on hearsay evidence from the computer system of the Claimant and the computer system of Next Retail Limited (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:

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

2. The facts and matters set out in this witness statement are within my own knowledge unless otherwise stated and I believe them to be true.

It is disputed that the Alleged Witness can accurately claim to be a Witness to any of the matters within the Claimant's Alleged Witness Statement and the Defendant respectfully requests that the Court give no weight to the Claimant's Alleged Witness Statement as it is based entirely on hearsay.

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.

3. I make this witness statement in response in direct response to the claimants filing of a alleged witness statement of Amy Abdul (the ‘Alleged Witness’) dated 23rd January 2023.

BACKGROUND

4. It is disputed that the Claim consists of debts due under the following accounts.

Claimant’s reference Original creditor Original creditor reference

385252044 Next Retail Limited 6366320006392580 (the '1st Void Agreement');

385263645 Next Retail Limited OB926030 (the '2nd Void Agreement');

(the 'Void Agreements')

The Defendant avers that the Void Agreements were void from the outset due to the Alleged Assignor's failure to comply with Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending.

It is disputed that the benefit of the Void Agreements has been assigned (the 'Alleged Assignments') to the Claimant. The Claimant is required to provide the instrument of assignment upon which they rely in relation to each of the Alleged Assignments of the Void Agreements.

5. It is disputed that the Claimant has provided any useful information on either of the aforementioned accounts in turn as the Claimant is solely reliant on the hearsay evidence observed by the Alleged Witness on the Claimant's computer system.

Account 1

6. It is not disputed that Account 1 relates to an Void Agreement regulated by the Consumer Credit Act 1974 (“Void Agreement 1”) dated 16 August 2010 between the Defendant and the Alleged Assignor, for the supply and usage of a Next catalogue account. It is disputed that a copy of the Void Agreement 1 exhibited by the Claimant at (“AA1”) of their Alleged Witness Statement.

The Defendant avers that the Claimant is not compliant with Sections.77-79 of the Consumer Credit Act 1974 and Void Agreement 1 is unenforceable.

The Defendant further avers that under the Consumer Credit Act 1974 section 61(1)(a) and 127(3) of the Act, a creditor must be able to produce a signed document (not necessarily the credit agreement) that contains the prescribed terms. The document must include the credit limit, the interest rate and details of how and when a debtor is to discharge his payment obligations.

The Defendant avers that the Claimant has failed to provide any signed document with the prescribed terms and Void Agreement 1 is irredeemably unenforceable.

Furthermore, it is disputed that Void Agreement 1 is fully compliant with the Consumer Credit Act 1974, as per the case law established in the court of appeal in "Smith v. Barclays Bank plc [2016] EWCA Civ 675", where it was held that a failure to provide a consumer with a copy of the agreement before the credit was granted, would render the agreement unenforceable. Although the Claimant has provided an unsigned copy of the agreement, it is disputable whether the Defendant had signed it and received it before the credit was granted. Therefore, it would be incumbent upon the Claimant to prove that the Agreement 1 was signed by the Defendant and provided to him before the credit was granted.

7. It is disputed that the Defendant had the use and benefit of Void Agreement 1. It is disputed that the Defendant breached the Void Agreement by failing to maintain the agreed payments. It is disputed that the Alleged Assignor It is disputed that the Defendants last payment to the Assignor was £75.00 on 28 February 2019. It is disputed that this was insufficient to clear the outstanding balance. It is disputed that the document exhibited by the Claimant at (“AA2”) is a copy of the Statement of Account.

The Defendant avers that the document exhibited by the Claimant at (“AA2”) is simply a print out of a computer generated data that the Alleged Witness has no personal knowledge and as hearsay, has no bearing in this case and Void Agreement 1 was void from the outset and irredeemably unenforceable.

8. It is disputed that as a result of the Defendants breach the Alleged Assignor issued a Default Notice to the Defendant, dated 2 August 2019, under section 87(1) of the Consumer Credit Act 1974. It is disputed that the Defendant did not remedy the breach by 30 August 2019. It is disputed that the document exhibited by the Claimant at (“AA3”) is a copy of the Default Notice.

It is disputed that the Default Notice was issued in compliance with the requirements of the Consumer Credit Act 1974, as per the case law established in the court of appeal in "Foster v. MBNA Ltd [2013] EWCA Civ 996" where it was held that a default notice must be clear, conspicuous and contain specific information as set out in section 88 of the Act, and failure to comply with these requirements would render the notice invalid. Therefore, it would be incumbent upon the Claimant to prove that the Default Notice exhibited at (“AA3”) was clear, conspicuous, and contained the specific information as set out in section 88 of the Act and that it was issued in compliance with the requirements of the Consumer Credit Act 1974.

In the case of "PRA Group (UK) Ltd v. O’Hara [2017] EWCA Civ 1671" it was held that a default notice must be sent to the correct address of the debtor, and that the notice must be sent to the last known address of the debtor. The Defendant avers that no Default notice was received by the Defendant and the Claimant has failed to provide any evidence of service of a valid Default Notice as per the Consumer Credit Act 1974.

9. It is disputed that the benefit of Void Agreement 1 was subject to Legal Assignment by written instrument (the 'Deed of Assignment') from the Assignor to the Claimant on the 30 June 2021 pursuant to section 136 of the Law of Property Act 1925 due to the constraints of:

⦁ 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 in writing).

The Defendant avers that as the Claimant has mentioned the instrument of assignment otherwise known as the Deed of Assignment, the Defendant has a right to examine this document:

See: (Van Lynn Developments v Pelias Construction Co Ltd [1969] 1 QB 607 Where Lord Denning MR said: 'After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge.'

And; (Promontoria (Oak) Ltd v Emanuel & Others 2021 EWCA Civ 1682) 52. 'we agree with Lord Denning that he is entitled to satisfy himself that there has been such an assignment';

It is disputed that Notices of Assignment were sent to the Defendant on behalf of the Assignor and the Claimant, to the Defendant’s current address of 29 Charterhouse Road, Wigan WN3 4LS on 19 July 2021. It is disputed that the documents exhibited by the Claimant at (“AA4”) are valid copies of Notices of Assignment.

It is disputed that the Claimant allocated this account the reference of 385252044. The Defendant avers that any allocation of reference number was carried out by the Claimant's computer system and not by any human individual and as such can only be regarded as hearsay. It is disputed that the balance on Alleged Assignment was £1,553.00. The Defendant avers that the Void Agreement was void from the outset due to the irresponsible lending practices of the Alleged Assignor in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook and Void Agreement 1 was void from the outset and no benefit could be assigned as no one gives what they do not have ('Nemo dat quod non habet').

The Defendant further avers that as the Claimant is solely reliant on a Notice of Assignment they have failed to demonstrate any legal standing ('Locus Standi') to issue their 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.'

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 Defendant avers that the Claimant has failed to demonstrate any of the 3 conditions required to prove a valid legal assignment.

Account 2

10. It is not disputed that Account 2 relates to an Void Agreement regulated by the Consumer Credit Act 1974 (“Void Agreement 2”) dated 16 August 2010 between the Defendant and the Alleged Assignor, for the supply and usage of a Next catalogue account. It is disputed that a copy of the Void Agreement 1 exhibited by the Claimant at (“AA5”) of their Alleged Witness Statement.

The Defendant avers that the Claimant is not compliant with Sections.77-79 of the Consumer Credit Act 1974 and Void Agreement 1 is unenforceable.

The Defendant avers that the Claimant has failed to provide any signed document with the prescribed terms and Void Agreement 1 is irredeemably unenforceable.

11. It is disputed that the Defendant had the use and benefit of Void Agreement 2. It is disputed that the Defendant breached the Void Agreement by failing to maintain the agreed payments. It is disputed that the Alleged Assignor It is disputed that the Defendants last payment to the Assignor was £40.00 on 28 February 2019. It is disputed that this was insufficient to clear the outstanding balance. It is disputed that the document exhibited by the Claimant at (“AA6”) is a copy of the Statement of Account.

The Defendant avers that the document exhibited by the Claimant at (“AA6”) is simply a print out of a computer generated data that the Alleged Witness has no personal knowledge and as hearsay, has no bearing in this case and the Void Agreement 2 was void from the outset and irredeemably unenforceable.

12. It is disputed that as a result of the Defendants breach the Alleged Assignor issued a Default Notice to the Defendant, dated 14 August 2019, under section 87(1) of the Consumer Credit Act 1974. It is disputed that the Defendant did not remedy the breach by 30 August 2019. It is disputed that the document exhibited by the Claimant at (“AA7”) is a copy of the Default Notice.

It is disputed that the Default Notice was issued in compliance with the requirements of the Consumer Credit Act 1974, as per the case law established in the court of appeal in "Foster v. MBNA Ltd [2013] EWCA Civ 996" where it was held that a default notice must be clear, conspicuous and contain specific information as set out in section 88 of the Act, and failure to comply with these requirements would render the notice invalid. Therefore, it would be incumbent upon the Claimant to prove that the Default Notice exhibited at (“AA7”) was clear, conspicuous, and contained the specific information as set out in section 88 of the Act and that it was issued in compliance with the requirements of the Consumer Credit Act 1974.

13. It is disputed that the benefit of Void Agreement 2 was subject to Legal Assignment by written instrument (the 'Deed of Assignment') from the Assignor to the Claimant on the 30 June 2021 pursuant to section 136 of the Law of Property Act 1925 due to the constraints of:

⦁ 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 in writing).

The Defendant avers that as the Claimant has mentioned the instrument of assignment otherwise known as the Deed of Assignment, the Defendant has a right to examine this document:

And; (Promontoria (Oak) Ltd v Emanuel & Others 2021 EWCA Civ 1682) 52. 'we agree with Lord Denning that he is entitled to satisfy himself that there has been such an assignment';

It is disputed that the Claimant allocated this account the reference of 385263645. The Defendant avers that any allocation of reference number was carried out by the Claimant's computer system and not by any human individual and as such can only be regarded as hearsay. It is disputed that the balance on Alleged Assignment was £819.62. The Defendant avers that the Void Agreement was void from the outset due to the irresponsible lending practices of the Alleged Assignor in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook and Void Agreement 1 was void from the outset and no benefit could be assigned as no one gives what they do not have ('Nemo dat quod non habet').

The Defendant further avers that as the Claimant is solely reliant on a Notice of Assignment they have failed to demonstrate any legal standing ('Locus Standi') to issue their claim:

The Defendant avers that the Claimant has failed to demonstrate any of the 3 conditions required to prove a valid legal assignment.

14. It is disputed that prior to the commencement of this Claim, the Claimant had been attempting to contact the Defendant to recover the amount of £2,372.62. It is disputed that the Claimant sent a total of 16 letters to the Defendant after the Notices of Assignment on the account from 2021 until the Pre Action Protocol letter was sent on the 5 July 2022. It is disputed that the documents exhibited by the Claimant in their Alleged Witness statement at (“AA9”) and (“AA10”) are examples of the letters and Pre-Action Protocol letter sent to the Defendant.

15. It is not disputed that the Defendant responded to the Pre Action Protocol letter with a letter dated 22 July 2022 stating that the debt was disputed and all future correspondence should be via email. It is not disputed that the Defendant requested proof of the debt being owed with a copy of the Void Agreement, proof that her information had been obtained in compliance with GDPR, the firm’s Financial Conduct Authority authorisation number and the firm’s Information Commissioner Office registration number. It is not disputed that the Defendant also enclosed a fee schedule. It is not disputed that the document exhibited by the Claimant at (“AA11”) is a copy of the letter. It is not disputed that a response was provided to the Defendant via email on 3 August 2022 which included a copy of the Void Agreement as per the Defendant’s request. It is not disputed that the document exhibited by the Claimant at (“AA12”) is a copy of the email. It is not disputed that as no response was received to the email, legal proceedings were issued against the Defendant 16 May 2022 and were deemed served on 20 May 2022 upon the Defendant’s current address.

16. It is not disputed that after the Claim was issued on 16 September 2022, the Defendant sent the Claimant a letter dated 1 October 2022 with a notice of irrevocable estoppel. The letter also requested the original agreement, the notice of assignment, default notice warning letter, default notice, termination notice, the amount paid by the Claimant for the debt. It is not disputed that he Claimant replied to the Defendant via email on 26 October 2022 to inform her that the relevant documentation had been requested from the Alleged Assignor and would be provided in due course, if available. It is not disputed that the document exhibited by the Claimant at (“AA13”) is a copy of this letter.

The Defendant avers that the letter also requested a copy of the Deed of Assignment relied on by the Claimant for the Alleged Assignment of the Void Agreement, something which to date the Claimant has bee unwilling or unable to supply. The Defendant avers that by attempting to rely solely on a Notice of Assignment, the Claimant has failed to demonstrate their Locus Standi to issue this claim or any exception relied on to Privity.

17. It is not disputed that the Defendant sent the Claimant a Part 18 request dated 22 November 2022. It is not disputed that the Claimant replied to the Defendant via email and letter on 23 January 2023 stating a Part 18 Response would be provided in due course. It is not disputed that the documents exhibited by the Claimant at (“AA14”) are copies of the default notices, agreements, notice of assignments and statements of accounts for both accounts within the email and letter. The Defendant avers that the Claimant is in breach of CPR-18 by failing to provide the instrument of Assignment relied on in this matter and the Claimant's refusal to provide this document suggests that the Claimant has no Locus Standi to issue this claim and respectfully invites the Court to conclude the same.

THE DEFENDANT’S DEFENCE

18. It is disputed that the Defence is a generic template commonly found on internet forums and does not seek to address this matter of the outstanding balance specifically. It is disputed that the Defence is repetitive. It is disputed that the Claimant's summary accurate as the their summary leaves out much of the Defendant's defence. The Claimant's summary of the Defendant's defence:-

a. It is agreed that the Defendant alleges that the Claimant has no legal standing to bring the Claim and disputes the Alleged Assignment;
b. It is agreed that the Defendant disputes the alleged balances claimed;
c. It is agreed that the Defendant requests copy documents;
d. It is agreed that the Defendant puts the Claimant to proof that compliant default notices were sent;
e. It is agreed that the Defendant disputes that the agreements were terminated due to non-payment and puts the Claimant to proof;
f. It is agreed that the Defendant requests a full breakdown of the amounts claimed; and
g. It is agreed that the Defendant alleges the Particulars of Claim do not comply with CPR 16.

RESPONSE TO THE CLAIMANT’S REPLY TO THE DEFENDANT’S DEFENCE

19. As the Claimant repeats paragraphs 3 to 18 of their Alleged Witness Statement the Defendant repeats paragraphs 3 to 18 of this Witness Statement and submits that the Claimant's claim is without merit and untenable.

20. It is disputed that Notices of Assignment were sent to the Defendant’s current address, which is the same address as listed by the Defendant on the Defence. It neither confirmed nor denied that Notices of Assignment were not returned to the Claimant via Royal Mail marked ‘return to sender’. It is disputed that therefore they were deemed served. The Defendant avers that the Claimant is solely reliant on hearsay in their claim that any Notice was sent and they have presented no evidence of postage, even by standard mail which is free when requested at the Post Office.

21. It is not disputed that there is no legal requirement for assignment of debt to be in the form of a Deed. It is disputed that the Claimant is under no obligation to disclose the Debt Sale Agreements to the Defendant. The Defendant avers that the Claimant has a duty to prove their claim and the Defendant is entitled to view the Deed of Assignement relied on and stated in:

And; (Promontoria (Oak) Ltd v Emanuel & Others 2021 EWCA Civ 1682) 52. 'we agree with Lord Denning that he is entitled to satisfy himself that there has been such an assignment';

It is disputed that no part of those contracts could provide, support or assist in any Defence and the Defendant has neither need nor right to be privy to that content. It is disputed that the Notices of Assignment that, the Claimant claims were sent to the Defendant discharge the Claimant’s obligation.

The Defendant avers that by attempting to rely solely on Notice of Assignment, the Claimant is reliant on a claim of Equitable Assignment and has no Locus Standi to issue this claim and respectfully invites the Court to conclude the same.

22. It is disputed that the Claimant is the correct entity to bring these proceedings. It is disputed that the Defendant it is the correct entity to bring these legal proceedings against.

The Defendant avers that as the Claimant has refused to provide the instrument of assignment, upon which they rely, even in a redated form, the Claimant is solely reliant on a Claim of Equitable Assignment of the Void Agreement and has no Locus Stani to issue this claim.

23. It is disputed that the Defendant has not denied entering into the Void Agreements with the Alleged Assignors. It is disputed that the Defendant has merely disputed the validity of the Void Agreements by stating they were void as the alleged Assignors were in breach of Section 138D of the Financial Services and Markets Act 2000 in respect of unfair lending. The Defendant avers that the Void Agreements were void from the outset and as such, no valid legally binding agreement was entered into.

24. It is disputed that the balances are correct as evidenced by the Statements of Accounts annexed to the Claimant's Alleged Witness Statement. It is disputed that any debt is owed to the Claimant for the sums sought.

25. It is disputed that all the Default Notices were compliant with section 87(1) of the Consumer Credit Act 1974.

26. It is disputed that the Claimant that it has received confirmation in good faith from the Alleged Assignors that the Default Notices were sent to the Defendant’s current address. It is disputed that such is evidenced by the Exhibits in the Witness Statement. it is disputed that a further copy has been send to the Defendant via email. The Defendant avers that the Claimant is solely reliant upon hearsay evidence for which the Claimant has made no application to submit and the Defendant respectfully invites the court to give no weight to the Claimant's Alleged Witness Statement when deciding fact in this claim.

27. It is disputed that the Claimant Particulars of Claim are compliant with CPR Rule 16.4(a), as they have set out a clear and concise statement of fact. It is disputed that the Claimant has made it clear as to who the Defendant has entered into Void Agreement 1 and Void Agreement 2 with, provided the reference number as well as making it clear why the Void Agreements where terminated.

It is contended that the Claimant is in breach of CPR 16.4 (i)(a) and (c) by not providing concise details of claim and not stating if claiming aggravated damages.

In particular, the Particulars of Claim does 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. any date that the Defendant is Claimed to have entered into either of the Void Agreements;

⦁ e. any date of alleged failure to maintain payments for either of the Void Agreements;

⦁ f. any date of either alleged default; any date of either cause of action; any date of either alleged assignment; or; any date of either alleged notice of assignment;

28. It is disputed that under CPR Rule 16.4 there is no requirement to identify or plead the date the cause of action accrued.

While CPR Rule 16.4 does not explicitly require the date the cause of action accrued to be identified or pleaded, it is generally required that a claimant plead the date the cause of action accrued in order to determine whether the claim is barred by the statute of limitations. For example, in the case of Bunge SA v Nidera BV [2017] UKSC 43, the Supreme Court of the United Kingdom held that a claimant must plead the date the cause of action accrued in order to determine whether the claim is time-barred.

29. It is disputed that the Defendant is in breach of CPR Rule 16.5(2)(a) as she has not provided a reason for denying the Claim, she has simply contested its legality. The Defendant avers that the Void Agreements were void from the outset and therefore not able to assign any benefit of the Void Agreements to the Claimant as no one gives what they do not have ('Nemo dat quod non habet') and the Claimant has failed to demonstrate any Locus Standi to issue their claim.

30. It is disputed that the Statements of Accounts, exhibited and relied on by the Claimant, positively affirm how the Defendant accrued the debt. It is disputed that such documents establish the Claimant’s case and the Defendant’s liability. The Defendant avers that the Claimant is attempting betterment by Claiming losses they have not suffered.

31. It is disputed that the Defendant has failed to adequately explain why she should not have to pay for the service and goods of which they has had the benefit. The Defendant avers that the Void Agreements were void from the outset and the relationship with the Alleged Assignors 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.

32. it is disputed that the Claimant was assigned the benefit of the Void Agreements. It is not disputed that a valid assignment does not assign the burden. It is disputed that the Void Accounts were assigned to the Claimant in good faith on the assurance that the balances were valid and owing. The Defendant avers that the Claimant, as a purchaser of bulk accounts on an equitable basis, speculates on the purchase of lists of bulk lists of accounts without conducting any due diligence into whether the associated lists of numbers are correct or resulted from irresponsible lending and as such gambles on such purchases in an effort to profit out of such speculation the maxim 'Caveat Emptor' applies - Let the buyer beware.

33. For the reasons stated above, the Defendant respectfully submits that the Claimant has no Locus Standi to issue a claim for Void Agreements that they were not a party to and Privity 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.

It is disputed that the Claimant is entitled to recover the outstanding sum. It is disputed that any sum is is due and owing by the Defendant.

34. The Defendant respectfully invites the Court to strike out the claim and award Judgment in favour of the Defendant and costs.

ORDER SOUGHT

35. It is disputed that the Claimant is entitled to request that Judgment is granted in favour of the Claimant for the sum of £2,159.54 which is inclusive of the following:

a. Principal debt of £2,372.62 is disputed both whole and in part;
b. Interest in the sum of £189.81 is disputed both whole and in part;
c. Issue fee of £115.00 is disputed;
d. Fixed commencement costs in the sum of £80.00 is disputed; and
e. Hearing fee in the sum of £181.00 is disputed; and
f. Claimant’s costs of attendance at the hearing which will be confirmed by the advocate at the hearing, but not expected to exceed the sum of £228.00 inclusive of VAT is disputed

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

Dated this 06 February 2023

Signed: [DEFENDANT'S SIGNATURE]

Printed: [DEFENDANT'S NAME] - Defendant

Page updated

Google Sites

Report abuse