Lowell-Vanquis Witness Statement

LOWELL 42 Point Witness Statement

CLAIM NO: H3KQ1AOF

IN THE COUNTY COURT AT MANCHESTER

BETWEEN:

LOWELL PORTFOLIO I LTD

Claimant

-and-

[DEFENDANT NAME]

Defendant

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WITNESS STATEMENT

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I, Ismail Mohamed Amin Daji, of Overdales Solicitors, whose registered address is Ellington House, 9 Savannah Way, Leeds, LS10 1AB, WILL SAY as follows:

INTRODUCTION

1. I am a Senior Complex Litigation Paralegal in the employ of Overdales Solicitors. 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 through personal review of the Claimant's case record systems save as where expressly stated, and are true to the best of my knowledge, information and belief.

BACKGROUND

3. The Claim relates to a credit card agreement regulated by the Consumer Credit Act 1974 ("the Agreement") between Vanquis Bank Limited ("the Assignor") and the Defendant dated 7 September 2013. A copy of the online application form is exhibited hereto at "ID1". The signed Agreement inclusive of the applicable terms and conditions is exhibited hereto at "ID2".

4. The Assignor provided a credit card facility to the Defendant with the Assignor's reference number being 4023963904709361.

5. The Assignor has provided the Claimant with a statement of account which evidences the accrual of the assigned balance of £1,832.39. For example, on 24 October 2013 the Defendant used the credit card to pay the sum of £101.85 to ROCHDALE MBC. The statement of account shows that the last payment made by the Defendant to the Assignor in the sum of £20.00 on 15 October 2018. A copy of the statement of account is exhibited hereto at "ID3".

6. Although the Defendant had the use and benefit of the Agreement, the Defendant breached the Agreement by failing to maintain the agreed repayments.

7. Pursuant to s87 of the Consumer Creditor Act 1974 the Defendant was given time to respond and pay the required amount. The Defendant failed to respond to the Notice of Default dated 3 December 2018 that was sent to the Defendant by the Assignor, therefore the full amount claimed became due and owing.

8. The date at which the Notice of Default expired is the date upon which the cause of action accrued. A Default Notice was served, which required the Defendant to pay the arrears of £20.00 by 22 December 2018. The Claimant therefore avers, that the cause of action would have accrued on or around 23 December 2018. A copy of the Notice of Default dated 3 December 2018 is exhibited hereto at "104".

9. Following the Defendant's breach of the Agreement by non-payment the debt was subject to a legal assignment dated 23 September 2019 pursuant to section 136 of the Law of Property Act 1925 from the Assignor to the Claimant. The debt was allocated the Claimant's reference of 334554623. Notices of Assignment were duly issued dated 15 October 2019 on behalf of the Assignor and by the Claimant to the Defendant's current address. Reconstituted copies of the Notices of Assignment are exhibited hereto at "ID5".

10. Despite the breach by the Defendant and with a view to being reasonable, the Claimant did not apply any additional interest or charges on the account throughout this period of trying to contact the Defendant and to recover the balance of the debt.

11. The Defendant had written to the Claimant to request information regarding the account and regrading her personal data held by the Claimant. The Claimant responded to the Defendant on 13 Janaury 2020 and 24 February 2020. Copies of the letters from the Claimant dated 13 Janaury 2020 and 24 February 2020 are exhibited hereto at "ID6".

12. The Claimant attempted to communicate with the Defendant to either agree an affordable repayment plan, negotiate a reduced settlement figure or offer the opportunity to raise a dispute at the earliest possible stage. If the Defendant's alleged dispute had been valid, the matter would not have progressed to this stage.

13. The Claimant instructed Lowell Solicitors on 2 February 2021 with a view to recovering the outstanding balance of the debt. A copy of the Notice of Pending Legal action dated 3 February 2021 is exhibited hereto at "ID7".

14. The Claimant later instructed Overdales Solicitors on 8 March 2021 to act on its behalf.

15. The Defendant contacted Lowell Solicitiors and the Claimant's current solicitors, Overdales Solicitors, on various occasions to request documentation in support of the claim. Copies of the letters sent by the Defendant are exhibited hereto at "ID8".

16. Both Lowell Solicitors and later Overdales Solicitors wrote to the Defendant to address the requests made by the Defendant and provided documents in support of the Defendant's liability for the debt. Copies of the letters sent by Lowell Solicitors and later Overdales Solicitors are exhibited hereto at "ID9".

17. Following the Claimant's attempts to contact the Defendant and after all other attempts to resolve the matter had been exhausted the Claimant issued legal proceedings on 13 August 2021 to recover the assigned balance in the sum of £1,832.39 plus interest in the sum of £146.59, calculated at the County Court Act 1984 rate of 8% but capped at one year. Proceedings were deemed served on 18 August 2021.

THE DEFENDANT'S DEFENCE

18. The Defendant has filed a technical Defence in which she puts the Claimant to strict proof of the debt.

CLAIMANT'S RESPONSE TO THE DEFENCE

19. The Claimant repeats paragraphs 3 to 17 of this Witness Statement.

20. The Claimant submits that evidence exhibited hereto clearly indicate and positively supports the position that the Defendant did enter into the Agreement and that he had the use and the benefit of the Agreement.

21. The Claimant avers that it is therefore the correct entity to bring this Claim and the Defendant remains indebted to the Claimant.

22. The Claimant has evidenced at "ID1" a copy of the online application form completed by the Defendant. The email address provided on the application matches the email address provided on her original Defence and Directions Questionnaire, this being emmacheetham9hotmail.co.uk. Further to this the mobile number provided of 07935647228 also matches the details provided on the Defence. The Claimant therefore avers that this indicates that the Defendant did sign the application for the Agreement.

23. The Defendant has clearly had the use and the benefit of the Agreement that has resulted in the accrual of the debt as exhibited hereto at "ID3".

24. Additionally, it will be noted that the statement attached hereto at "ID3" clearly evidences that payments were made by the Defendant, the transactions made by the Defendant and the original balance due under this Agreement. The statement also evidences the interest and the administration charges made in accordance with the terms and conditions of the Agreement exhibited as "ID2".

25. The Notice of Default ("ID4") was sent to the Defendant at her current address dated 3 December 2018 and it gave the Defendant until 22 December 2018 to make the payment due, the Defendant failed to contact the Assignor and make the required payment resulting in the cause of action accruing on 23 December 2018. The Claimant would aver that a Notice of Default has been validly served and that a cause of action has been established ensuing from the Defendant's non-compliance with the terms of the Default Notice.

26. The Claimant avers that the reconstituted Notices of Assignment ("105") were sent to the Defendant on 15 October 2019 to the Defendant's current address. The Claimant, therefore, avers that the Defendant should have received this. As there is a valid assignment of this debt from the Assignor to the Claimant, the Claimant avers that it is entitled to payment of the debt from the Defendant.

27. The Van Lynn Developments Ltd v Pelias Construction Co. Ltd [1968] 1 QB607 case is not about entitlement to the deed of assignment, but rather about the requirements for validity of a notice of assignment, so anything said on the subject is entirely obiter. Secondly, though Denning does in this context refer to a right to see the deed, he goes on to state that this would be in order for the debtor to be satisfied that the Claimant assignee can give good discharge for the debt. This does not arise in this case as the Assignor, as well as our client, has served notice of assignment on the Defendant.

28. In the case Jones v Link Financial Ltd 112013] 1 WLR 693, Mr Justice Hamblen commented that it was found that there had been valid legal assignment under section 136 of the Law of Property Act 1925 ("LPA 1925"). Under the LPA 1925 there were three conditions for the validity of an assignment. The first was that the assignment was absolute and not by way of a charge. The second was that the assignment was in writing under the hand of the assignor, and the third condition was that express notice in writing had been given to the debtor.

29. This case does not make reference to the deed of assignment. In this present case the notice of assignment which has been exhibited clearly shows that these three conditions have been satisfied.

30. The Court's attention is additonally drawn to Nicoll —v- Promontoria (Ram 2) Limited [2019] EWHC 2410 (Ch), in which the High Court of Justice held that it was not for the debtor to challenge the validity of the assignment whose validity was not challenged by either party to the assignment. The Court is referred to paragraph 41 of the Judgment, in which Justice Mann stated (in part): ",.. at the very least, it was none of the business of the debtor to challenge an assig whose assignment validity and effectiveness was not being challenged by either of the actual parties to it Applying that to the present case, the terms of the notice, which, it will be remembered, emanated from both assignor and assignee, made it clear that the parties to the assignment considered it to be complete. In the face of that, Mr Nicoll is not entitled to challenge the title of Promontoria."

31. The Claimant, as assignee, considers the assignment complete, is told by the Assignor and believes that the Assignor does too, as evidenced by its the Notices of Assignment exhibited, and by the evidential documentation provided by it to the Claimant in support of the Claimant's Claim. Thus, the parties to the assignment consider the assignment to be complete and as such the assignment is not open to challenge by the Defendant.

32. Prior to the Claim being issued the Defendant did not respond to the Claimant's correspondence at all, whether to discuss the debt or otherwise.

33. Had the Defendant contacted the Claimant and explained the reason(s) for non-payment, the Claimant's process is to place the account on hold and conduct an investigation with the Assignor. Should the Defendant's alleged dispute have been valid, the Claimant would have closed the account. The Defendant's refusal to communicate has led to litigation being necessary.

34. The Defendant made a request pursuant to Civil Procedure Rules Part 18 and Part 31.14 after filing her defence. A reply to the request was filed and served with the reply being dated 4 October 2021.

35. The Claimant's solicitor wrote to the Defendant on 15 October 2021 and 4 November 2021 to invite settlement and provide further evidence in support of the claim. Copies of these letters are exhibited hereto at "ID10".

36. The Defendant wrote to the Court on 10 November 2021 stating that the Claimant had failed to respond to the Part 18 request. A copy of the Defendant's letter dated 10 November 2021 was received at the Claimant's offices on 22 November 2021 and a copy of this letter is exhibited hereto at "ID11".

37. The Claimant's solicitor sent an email to the Court on 25 November 2021 in response to the Defendant's letter dated 10 November 2021 and a copy was served on the Defendant by letter dated 26 November 2021. The email to Court dated 25 November 2021 and the letter to the Defendant dated 26 November 2021 are exhibited hereto at "ID12".

38. The Claimant avers that it has fully complied with the Pre-Action Protocol and it has set out clear and concise statements of facts under CPR 16.4. The Defendant however has failed to engage and/or co-operate with the Claimant in this matter prior to the issue of legal proceedings.

39. 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 she should not have to repay the money she has had the benefit of; and b) Who, if not her, is responsible for accruing the debt, and

40. The Claimant submits that the Defendant has been unreasonable under CPR 27.14(2)(g), in that they have:

a) failed to respond to the Claimant's pre-action communications; and b) failed to respond to the Claimant's solicitor's pre-action communications.

41. The account was purchased in good faith, and as far as the Claimant is aware, the debt is due and owing and the Defendant is liable to pay the same.

ORDER SOUGHT

42. The Claimant requests that the Judgment is granted in favour of the Claimant for the sum of £1,832.39, plus: a) Interest of the sum of £146.59 at a rate of 8%; b) Issue fee of £115.00; c) Fixed commencement costs in the sum of £80.00; d) Hearing fee of £181.00; and e) The Claimant's costs of attendance at the hearing in the sum of £228.00. This 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 16m day of December 2021

Signed: Name: Ismail Mohamed Amin Daji

Position: Senior

Complex Litigation Paralegal Overdales Solicitors

CLAIM NO: H3KQ1AOF

IN THE COUNTY COURT AT MANCHESTER

BETWEEN:

[DEFENDANT NAME]

Defendant

-and-

LOWELL PORTFOLIO I LTD

Claimant

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WITNESS STATEMENT OF [DEFENDANT NAME]

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I, [DEFENDANT NAME], of [DEFENDANT ADDRESS] [WITNESS POSTCODE] WILL SAY as follows:

INTRODUCTION

1. I make this witness statement in direct response to the claimants filing of a witness statement of Ismail Mohamed Amin Daji (the ‘Alleged Witness’) dated 16th December 2021 who's statement is based on her employment of a company called Overdales Solicitors Limited.

2. The facts contained in this witness statement are known to me and are true to the best of my knowledge, information and belief. Within this statement I refer to documents exhibited a (‘AL-01’) a CPR-18 request made to the Claimant.

It is disputed that the Alleged Witness bases any of his statement on actual fact witnesses and the Defendant avers that her entire statement is based on hearsay evidence from the computer system of the Claimant and the computer system of Vanquis 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/Subpostmastersproved-right-on-IT-system-failures-as-calls-for-full-public-inquiry-mount

It is the Defendants 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.

BACKGROUND

3. It is not disputed that the claim relates to a credit card agreement regulated by the Consumer Credit Act 1974 ("the Void Agreement") between Vanquis Bank Limited ("the Alleged Assignor") and the Defendant dated 7 September 2013.

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.

www.bechbruun.com/en/news/2020/danish-consumer-ombudsman-finds-66-loan-agreements-to-be-unfair-and-void

The Defendant avers that as the Original Agreement was in breach of the Consumer Credit Act, the Alleged Assignor could not assign a benefit that was not owed - Nemo dat quod non habet - 'no one gives what they do not have'

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 due to the Common Law Doctrine of Privity. The Claimant is put to strict proof to prove an exemption to the Doctrine of Privity and demonstrate their Legal Standing to bring an action at Law.

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 the Claimant has a duty to prove any exemption to the Common Law Doctrine of Privity and must show that permission was given for a third party to enforce the contract and that a valid Legal Assignment exists in the form of a Sale Agreement between the Alleged Assignor and the Claimant (the 'Deed of Assignment').

It is disputed that the document exhibited by the Claimant at "ID1" is a valid copy of the online application form in relation to the Void Agreement. It is disputed that the document exhibited by the Claimant at "ID2" is a valid signed Agreement inclusive of the applicable terms and conditions.

The Defendant avers that the terms and conditions relied on by the Claimant do not permit the assignment of the benefit of the agreement as no exemption to the Common Law Doctrine of Privity of Contract is within those terms. The Defendant avers for the Claimant to rely on Section 1 of the Contracts (Rights of Third Parties) Act 1999, the Assignee must be expressly identified in the contract by name or class within those terms:

Contracts (Rights of Third Parties) Act 1999

1 Right of third party to enforce contractual term.

(1) Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—

(a) the contract expressly provides that he may, or
(b) subject to subsection (2), the term purports to confer a benefit on him.
(2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.
(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

4. It is not disputed that the Alleged Assignor provided a credit card facility to the Defendant with the Alleged Assignor's reference number being 4023963904709361. It is disputed that the Alleged Assignor acted in compliance with the Consumer Credit Act 1974 in relation to the Void Agreement.

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.

5. It is disputed that the Alleged Assignor has provided the Claimant with a statement of account which evidences the accrual of the assigned balance of £1,832.39. The Defendant avers that no balance is outstanding on the Void Agreement as interest and charges applied to the account are to be refunded by the Alleged Assignor due to their irresponsible lending practices in relation to the Void Agreement.

The Defendant avers that any example, of transactions on 24 October 2013 and 15 October 2018 to ROCHDALE MBC or any other person are matters of hearsay as the Alleged Witness does not have any personal knowledge of transactions made and did not Witness the Defendant making such transactions. The Defendant avers that the 'statement of account' exhibited by the Claimant at "ID3" is simply a print out of a computer generated data that the Alleged Witness has no personal knowledge of.

6. It is disputed that the Defendant had the use and benefit of the Void Agreement. It is disputed that the Defendant breached the Void Agreement by failing to maintain the agreed repayments. The Defendant avers that the Void Agreement was already breached by the actions of the Alleged Assignor in their non-compliance with the Consumer Credit Act 1974 Section 25(2B).

7. It is disputed that pursuant to s87 of the Consumer Creditor Act 1974 the Defendant was given time to respond and pay the required amount. It is disputed that the Defendant failed to respond to the Notice of Default dated 3 December 2018 that the Claimant claims was sent to the Defendant by the Alleged Assignor. It is disputed that therefore the full amount claimed became due and owing. The Defendant avers that no Default notice was provided by the Alleged Assignor who failed to comply with either Section 25(2B) or Section 87 of the Consumer Credit Act 1974.

8. It is disputed that the date at which the Notice of Default expired is the date upon which the cause of action accrued. It is disputed a Default Notice was served, which required the Defendant to pay the arrears of £20.00 by 22 December 2018. It is disputed that that the cause of action would have accrued on or around 23 December 2018.

It is disputed that the document exhibited by the Claimant at "104" is a valid copy of the Notice of Default dated 3 December 2018. The Defendant avers that no such Default notice was provided by the Alleged Assignor and the Claimant is put to strict proof to the contrary. The Defendant avers that the Claimant is solely reliant on the hearsay evidence of computer generated logs that require the input of human beings. The Claimant has failed to provide any evidence of the service of a Default notice like proof of postage with Royal Mail or Signed or delivery of documents.

9. It is disputed that the Defendant's breached of the Void Agreement, which was already void, by non-payment the benefit of the Void agreement. It is disputed that the Void Agreement was subject to a legal assignment dated 23 September 2019 (the 'Alleged Assignment') pursuant to section 136 of the Law of Property Act 1925 from the Assignor to the Claimant due to the constraints 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 Claimant it is entitled, or has any legal standing to claim payment of the benefit of the Void Agreement from the Defendant.

The Defendant is entitled to view the Deed of Assignment that the Claimant is relying on in this matter. The Defendant is willing to accept redacted copies of any documents that may contain sensitive commercial data or personal details of other clients providing that evidence relating to the Defendant is apparent.

Although in; 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;
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';
Also; [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 provide a copy of the Deed of Assignment, that they mention in their Witness Statement and 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 duly noted that the benefit of the Void Agreement was allocated the Claimant's reference of 334554623, but the Claimant fails to specify what person allocated that particular number to the benefit of the Void Agreement concerned. The Defendant avers that the Claimant's automated computer system allocated number on bulk sale purchases with little to no input from a human operator. The Defendant avers that the Alleged Witness is unlikely to have had any direct knowledge of the allocation of the reference number and therefore the procedure should be given little to no weight by the Court as it is, at most, hearsay evidence.

It is disputed that Notices of Assignment were duly issued dated 15 October 2019 on behalf of the Alleged Assignor and by the Claimant to the Defendant's current address. It is disputed that the documents exhibited by the Claimant at "ID5" are reconstituted copies of the Notices of Assignment. It is disputed that any of the THREE elements of legal assignment, as required under Section 136 of the Law of Property Act 1925, have been complied with by the Claimant or Alleged Assignor.

10. It is disputed that there was any breach by the Defendant as the Void Contract was voided by the Alleged Assignor. It is disputed that the Claimant, as a bulk debt purchaser, had any view to being reasonable, as the focus of a debt purchase company is to maximise profit over any other concerns.

It is disputed that Claimant had and right to apply any additional interest or charges on the Void Agreement, throughout a period of what they claim were attempts to contact the Defendant and to recover the benefit of the Void Agreement that was not owed to the Claimant.

11. It is not disputed that the Defendant wrote to the Claimant to request information regarding the Void Agreement and regrading her personal data held by the Claimant. It is not disputed that the Claimant responded to the Defendant on 13 January 2020 and 24 February 2020. Copies of the letters from the Claimant dated 13 January 2020 and 24 February 2020.

The Defendant avers that the Claimant issued only a partial response and did not provide full details of the data stored by the Claimant on the Defendant in breach of GDPR and the Data Protection Act 2018, namely that Claimant failed to provide any details of the bulk sale agreement with the Alleged Assignor (the 'Deed of Assignment'). The Defendant avers that personal information would be stored on the Defendant within that agreement, if it exists and the Claimant is withholding that information despite a Data Subject Access Request and CPR-31.14 and CPR-18 requests made by the Defendant. The Defendant respectfully asks the Court to Order the Claimant to disclose the Deed of Assignment to the Court and Defendant for inspection as the Defendant believes that it contains data that shows that the Claimant does not hold a valid Legal Assignment for the benefit of the Void Agreement and has no locus standi to issue this Claim.

12. It is denied that the Claimant attempted to communicate with the Defendant to either agree an affordable repayment plan, negotiate a reduced settlement figure or offer the opportunity to raise a dispute at the earliest possible stage. It is disputed that if the Defendant's alleged dispute had been valid, the matter would not have progressed to this stage. The Defendant avers that the Claimant will be aware that the Alleged Assignor was engaged in irresponsible lending practices as this has been widely circulated in the main stream media:

https://www.theguardian.com/business/2021/may/10/provident-financial-to-close-doorstep-lending-business-after-141-years

The Defendant avers that the Claimant is attempting betterment by bringing a Claim for a balance that the Claimant knows is not owed by the Defendant either to the Alleged Assignor or the Claimant.

13. It is disputed that the Claimant instructed Lowell Solicitors on 2 February 2021 with a view to recovering the outstanding balance of the benefit of the Void Agreement. The Defendant avers that the Claimant was aware of the irresponsible lending tactics of the Alleged Assignor and the investigation by the Financial Ombudsman and instructed Lowell Solicitors Limited, an 'in house' legal company operating from the same location as the Claimant, in order to better their financial position in threatening persons that were the victims of irresponsible lending practices with legal action should they not pay money that the Claimant knew was not owed to the Alleged Assignor or the Claimant.

The Defendant avers that the document exhibited by the Claimant at "ID7",an example of a copy of the Notice of Pending Legal action dated 3 February 2021, is an example of the use by the Claimant to threaten members of the public, many who are unfamiliar with the Court system, in order to force them into payment arrangement or risk such a Claim as the Claimant brings before the Court now.

14. It is noted that the Claimant later instructed Overdales Solicitors on 8 March 2021 to act on its behalf, another company operating from exactly the same location as the Claimants Limited company. Overdales Legal Limited which is more of a rebranding of Lowell Solicitors Limited operates from exactly the same physical address as the Claimant:

https://find-and-update.company-information.service.gov.uk/company/07407310

Whilst Lowell Solicitors operate from the same location but different door number. Lowell Portfolio 1 Ltd being at number 7 with Overdales Legal Limited with Lowell Solicitors Limited being at number 9.

https://find-and-update.company-information.service.gov.uk/company/04857418

The Defendant avers that the apparent use of 'in house' Solicitors is to give unwitting 'clients' the impression that an independent Solicitors company has been instructed to commence legal proceedings is an intimidation tactic. An independent Solicitors firm, as Officer of the Court, would have a duty to present the facts to the Court as Officers of the Court whereas an 'in house' company with the word 'legal' or 'solicitors' in the title of the company have no such duty towards the Court and can operate how their 'client' sees fit in pursuing the benefit of a Void Agreement despite them being in possession of documents and evidence that would show that Legally no 'debt' exists and ne Legal Assignment had taken place.

15. It is not disputed that the Defendant contacted Lowell Solicitors, at 7 Savannah Way and then the Claimant's current solicitors, Overdales Solicitors at 9 Savannah Way, on various occasions to request documentation in support of the claim. It is disputed that the Claimant or either of the Claimant's 'in house' legal companies provided evidence that either a balance was owed to the Alleged Assignor, or that the Claimant had any legal assignment of the benefit of the Void Agreement. The Defendant avers that the document exhibited by the Claimant at "ID8" demonstrate the the Defendant gave the Claimant multiple opportunities to provide the documents to support their claim, something which they have refused to do despite CPR-31.14 and CPR-18 requests.

16. It is not disputed that both Lowell Solicitors and later Overdales Solicitors wrote to the Defendant to address the requests made by the Defendant and provided a limited number of documents in support of the Defendant's liability for the alleged benefit of the Void Agreement. The Defendant avers that copies of the letters sent by Lowell Solicitors and later Overdales Solicitors are exhibited by the Claimant at "ID9" demonstrate that the Claimant and their 'in house' legal companies refused to provide, notably, the Deed of Assignment requested referring to the document as 'commercially sensitive'.

The Defendant draws the Courts attention to the ruling of;

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;

which confirms the comments of Lord Denning in:

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';

The Defendant avers that the Claimant has not satisfied the requirements THREE elements of Legal Assignment as required under the Law of Property Act 1925 and is withholding the Deed of Assignment which would demonstrate that the Claimant has, at most, an Equitable Assignment of the benefit of the Void Agreement and no Locus Standi to bring this Claim.

17. It is disputed that after all other attempts to resolve the matter had been exhausted the Claimant issued legal proceedings on 13 August 2021 to recover the allegedly assigned benefit of the Void Agreement in the sum of £1,832.39 plus interest in the sum of £146.59, calculated at the County Court Act 1984 rate of 8% but capped at one year. Proceedings were deemed served on 18 August 2021.

The Defendant avers that the Claimant did not exhaust all other methods of resolving this matter before issuing Court Proceedings. Had the Claimant provided the Deed of Assignment requested by the Defendant in communications prior to the issue of Court proceedings, the issue of Alleged Assignment could have been dealt with without the need for any Court action. [EXHIBT 3 Letters and CPR-18]

THE DEFENDANT'S DEFENCE

18. It is not disputed that the Defendant has filed a detailed and technical Defence which puts the Claimant to strict proof of the debt but also calls into question their Locus Standi 'Legal Standing' to issue this claim. The Defendant avers that as a bulk debt purchase company the Claimant seeks to issue claims for which they have no Legal right to issue as a matter of Corporate policy to attempt betterment in relation to the Void Agreement and many others.

CLAIMANT'S RESPONSE TO THE DEFENCE

19. It is noted that the Claimant repeats paragraphs 3 to 17 of this Witness Statement and the Defendant repeats paragraphs 3 to 17 in this Witness Statement in response.

20. It is disputed that the hearsay documents and computer print outs exhibited by the Claimant clearly indicate and positively supports the position that the Defendant did enter into the Agreement and that he had the use and the benefit of the Agreement. It is the Defendant's position that the Void Agreement was in breach of the Consumer Credit Act 1974 25(2B) and void from the outset. The Defendant avers that even if the Contract was not void from the outset, the Claimant has no Locus Standi 'Legal Standing' to issue this claim due the Common Law Doctrine of Privity of Contract and the constraints of Section 136 of the Law of Property Act 1925.

21. It is disputed that the Claimant is the correct entity to bring this Claim and the Defendant remains indebted to the Claimant. The Defendant draws the Courts attention to the ruling of:

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 Defendant avers that the Claimant has not demonstrated any evidence of Legal Assignment of the Void agreement and has not right to issue a claim in the County Court.

22. It is disputed that the Claimant has evidenced at "ID1" a copy of the online application form completed by the Defendant. The Defendant avers that it is not a point of disputed that the email address provided on the application matches the email address provided on her original Defence and Directions Questionnaire, this being emmacheetham9hotmail.co.uk. It is also not a further point of dispute that the mobile number provided of 07935647228 also matches the details provided on the Defence.

It is disputed that this indicates that the Defendant did sign the application for the Void Agreement. The Defendant avers that the provision of email address and phone number is no evidence that a person entered into and Agreement. The Defendant avers that as the Claimant has been unable to provide a copy of the actual contract required under the Consumer Credit Act 1974 Sections.77-79 the Claimant is demonstrating that neither the Alleged Assignor or the Claimant are complaint with the Consumer Credit Act 1974.

23. It is disputed that the Defendant has clearly had the use and the benefit of the Void Agreement. It is disputed that the document exhibited by the Claimant at "ID3" shows that this resulted in the accrual of a debt. The Defendant avers that this document is hearsay and should be given no weight by the Court. The Claimant avers that the Alleged Assignor was engaged in irresponsible lending practices which resulted in the Void Agreement being void prior to any Alleged Assignment to the Claimant.

24. It is disputed that the document exhibited by the Claimant at "ID3" clearly evidences that payments were made by the Defendant, the transactions made by the Defendant and the original balance due under this Agreement. It is disputed that the document also evidences the interest and the administration charges made in accordance with the terms and conditions of the Agreement exhibited as "ID2".

The Defendant avers that any interest and administration charges were applied in breach of the Consumer Credit Act 1974 due to the irresponsible lending practices of the Alleged Assignor.

25. It is disputed that a Notice of Default, exhibited by the Claimant at ("ID4") was sent to the Defendant at her current address dated 3 December 2018 and it gave the Defendant until 22 December 2018 to make the payment due. It is disputed that the Defendant failed to contact the Alleged Assignor and make the required payment resulting in the cause of action accruing on 23 December 2018. It is disputed that a Notice of Default has been validly served and that a cause of action has been established ensuing from the Defendant's non-compliance with the terms of the Default Notice.

The Defendant avers that no such Default Notice was sent to the Defendant on 3rd December 2018 in relation to the Void Agreement and the Claimant has failed to provide any evidence of a cause of action in this case.

26. It is disputed that the reconstituted Notices of Assignment. exhibited by the Claimant at ("105") were sent to the Defendant on 15 October 2019 to the Defendant's current address.

It is disputed that Claimant's presumption that the Defendant should have received the Notice of Assignment is ill founded and the Defendant avers that the Claimant has failed to evidence any service of such documents.

The Defendant avers that the hearsay reconstituted documents relied on provide no evidence that they we either sent or received by the Defendant. The Defendant avers that any notice sent in compliance with the Section 136 of the Law of Property Act 1925 should be 'given' to the Defendant directly or served by Registered Mail as required under Section 196 of the Law of Property Act 1925.

It is disputed that there is a valid assignment of the benefit of the Void Agreement from the Alleged Assignor to the Claimant. It is disputed that the Claimant is entitled to payment of the benefit of the Void Agreement from the Defendant.

27. It is disputed that the Van Lynn Developments Ltd v Pelias Construction Co. Ltd [1968] 1 QB607 case is not about entitlement to the deed of assignment, but rather about the requirements for validity of a notice of assignment, so anything said on the subject is entirely obiter. The Defendant avers that the comment by Lord Denning:

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';

has been more recently confirmed in the case, last year, of:

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;

Secondly, the Claimant admits that, though Denning does in this context refer to a right to see the deed, he goes on to state that this would be in order for the debtor to be satisfied that the Claimant assignee can give good discharge for the debt. It is disputed that this does not arise in this case as the Alleged Assignor, as well as the Claimant, has served notice of assignment on the Defendant.

The Defendant avers that neither the Alleged Assignor nor the Claimant have provided any evidence of service of Notice of Assignment of the Alleged Assignment of the Void Agreement. The Claimant it put to strict proof to prove otherwise. The Defendant avers that the two Notices exhibited by the Claimant appear to have been produced by the Claimant on the same date. There is not evidence that either notice has provided to the Defendant.

The Defendant avers that the Claimant has not complied with ANY of the THREE elements of Legal Assignment.

29. It is disputed that this case does not make reference to the deed of assignment. The second requirement clearly states that that the assignment must be in writing under the had of the assignor. The is referring to the SALE AGREEMENT that MUST be signed by the Assignor and is commonly referred to as a DEED OF ASSINGMENT.

It is disputed that in this present case the notice of assignment which has been exhibited clearly shows that these three conditions have been satisfied. The Defendant avers that a Notice of Assignment is the THIRD requirement of assignment under Section 136 of the Law of Property Act 1925 and on its own DOES NOT confirm any of the two other elements. The Defendant avers that a bulk debt purchase company, the Claimant is well aware of this fact and seeks to withhold the Deed of Assignment (the sale agreement between the Alleged Assignor and the Claimant) because it shows that the THREE elements of Legal Assignment are not met. The Defendant avers that the FIRST element of Legal Assignment is not met by the Claimant as they DO purchase debts by way of a charge. The SECOND element has not been shown to have been satisfied as the Claimant has REFUSED to provide the DEED of Assignment (Sale agreement between the Alleged Assignor and Claimant) and the THIRD element has not been satisfied and the Claimant has been unable to provide any copy of a Notice of Assignment sent by either the Alleged Assignor or Claimant, only 'reconstituted' copies with no evidence of service.

If the Claimant believes they have a valid Legal Assignment, they should provide the Deed of Assignment (sale agreement between the Alleged Assignor and Claimant) for inspection at any future hearing as 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.

30. It is a point of note that the Claimant draws the Court's attention is to Nicoll —v- Promontoria (Ram 2) Limited [2019] EWHC 2410 (Ch), in which the Chancery Division of the High Court of Justice held that it was not for the debtor to challenge the validity of the assignment whose validity was not challenged by either party to the assignment. The Chancery division of the High Court has jurisdiction to rule on EQUITABLE assignment and the fact the the Claimant seeks to rely on this ruling is evidence that the Claimant does not have a valid LEGAL assignment only, at very most, an EQUITABLE assignment of the benefit of a Void Agreement.

31. It is disputed that the Claimant is entitled to consider the Alleged Assignment complete. It is disputed that the Claimant is told by the Alleged Assignor and believes that the Alleged Assignor does too. The Claimant should provide the documents they rely on to establish these claims.

It is disputed that this is evidenced by its the Notices of Assignment exhibited by the Claimant and by the hearsay documentation that the Claimant claims has been provided by it to the Claimant in support of the Claimant's Claim.

It is disputed that the parties to the assignment consider the assignment to be complete. It is disputed that the assignment is not open to challenge by the Defendant.

The Defendant avers that the Claimant is clearly reliant upon, at most, an Equitable Assignment of a Void Agreement and relies solely upon notices that have been 'reconstituted' by the Claimant without any evidence of their being GIVEN to the Defendant other than being exhibited in the Claimants bundle.

32. It is disputed that prior to the Claim being issued the Defendant did not respond to the Claimant's correspondence at all, whether to discuss the debt or otherwise. In paragraph 17 of the Claimant's Alleged Witness statement, the Claimant claims that legal proceedings were issued on 13 August 2021 yet in paragraph 11 the Claimant states that the Claimant responded to the Defendant on 13 January 2020 and 24 February 2020 prior to the issue of proceedings disputing the debt but offering to settle any liability if the Claimant could supply evidence that such a liability existed. This gave the Claimant the opportunity to settle this matter without involving the Court. As the Claimant failed on THREE separate occasions, to supply documents that would establish legal ownership of the Void Agreement, the Defendant drew a line under the matter and issued a Notice of Irrevocable Estoppel. It is the Defendant's position that the Claimant simply should not have brought an action at law as they were given plenty of opportunity to settle this matter without involving the Court. [PROOF OF DISPUTE 3Letter etc]

33. It is disputed that had the Defendant contacted the Claimant and explained the reason(s) for non-payment, the Claimant's process is to place the account on hold and conduct an investigation with the Alleged Assignor. The Defendant avers that the Claimant has in place a Corporate complaints procedure which simply follows standard Corporate rules when investigating the actions of their own Corporation.

It is disputed that should the Defendant's alleged dispute have been valid, the Claimant would have closed the account. It is disputed that the Defendant's refusal to communicate has led to litigation being necessary. The Defendant avers that communication was made in the form of three [EXHIBIT 3 Letter process] letters written 14 days apart with gave the Claimant ample opportunity to provide the documents requested. The Defendant draws the Courts attention to [CPR-18 and CPR-31] requests demonstrating that the Claimant still refuses to provide evidence of Legal Assignment and relies solely on two 'reconstituted' Notice of Assignment, both which seem to have been made by the Claimant and not the Claimant and Alleged Assignor as claimed by the Claimant, which fail to demonstrate any proof of compliance with the THREE elements required for Legal Assignment. The Defendant draws the Courts attention to the ruling in the case of:

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.

34. It is true that the Defendant made a request pursuant to Civil Procedure Rules Part 18 and Part 31.14 after filing her defence. It is agreed that a reply to the request was filed and served with the reply being dated 4 October 2021 which failed to provide all the documents requested. The Claimant has refused to provide the Deed of Assignment (sale agreement between the Alleged Assignor). The Defendant avers that this is an invalid response to both CPR Part 18 and Part 31.14 as the Claimant claims an Alleged Assignment in their Particulars of Claim but fails to establish any of the THREE elements of Legal Assignment and relies solely on 'reconstituted' notices of assignment which the Claimant claims were sent solely by the Claimant and Not the Alleged Assignor.

35. It is not disputed that the Claimant's solicitor wrote to the Defendant on 15 October 2021 and 4 November 2021 to invite settlement and provide further evidence in support of the claim. The Defendant avers that no balance is outstanding to either the Alleged Assignor or the Claimant and the Claimant has, at most, and Equitable Assignment of the Void Agreement and no locus standi to issue this claim.

36. It is a point of record that the Defendant wrote to the Court on 10 November 2021 stating that the Claimant had failed to respond to the Part 18 request. As per CPR-39.8 a copy of the Defendant's letter dated 10 November 2021 was received at the Claimant's offices on 22 November 2021 and a copy of this letter is exhibited by the Claimant at "ID11". The Defendant avers that this response is an invalid response under CPR-18 and respectfully asks the Court to order the Claimant to provide the Deed of Assignment (sale agreement between the Alleged Assignor and Claimant).

37. It is not disputed that the Claimant's 'in house' solicitor sent an email to the Court on 25 November 2021 in response to the Defendant's letter dated 10 November 2021 and a copy was served on the Defendant by letter dated 26 November 2021. The email to Court dated 25 November 2021 and the letter to the Defendant dated 26 November 2021 are exhibited by the Claimant at "ID12". The Defendant avers that the Claimant has steadfastly refused to provide any evidence of Legal Assignment other than 'reconstituted' notices and is wasting the Courts time with a matter that could have been settled by the Claimant simply providing the Deed of Assignment (sale agreement between the Alleged Assignor and Claimant) at an earlier stage. The Defendant avers that the Claimant's refusal to provide the Deed of Assignment (sale agreement between the Alleged Assignor and the Claimant) is unreasonable and prejudicial to the Defendant's case. The Defendant draws the Courts attention, again, to the ruling of:

38. It is disputed that the Claimant has fully complied with the Pre-Action Protocol and it has set out clear and concise statements of facts under CPR 16.4.

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 of documents upon which the claimant intends to rely;
d. if the Claimant intends to rely on hearsay evidence;
e. any date(s) for cause of action, date of default notice, date of assignment or date of notice of assignment; and;
f. the number of the Credit Card that the Claimant claims was issued by the Alleged Assignor.

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.

It is disputed that the Defendant has failed to engage and/or co-operate with the Claimant in this matter prior to the issue of legal proceedings. The Defendant avers that it is the Claimant who is wasting Court time by bringing a matter for which there is no Controversy. If the Claimant had provided the Deed of Assignment (sale agreement between the Alleged Assignor and Claimant) when requested, as early as January 2020, the matter of Alleged Assignment of the Void Agreement could have be dealt with. The Defendant avers that the Claimant is acting unreasonably by refusing to provide the very basis standing they have for bringing this Claim, namely the Alleged Assignment of the Void Agreement.

39. It is disputed that the Defendant's Defence carries any prospect of successfully defending the claim. The Defendant avers that it is the Claimant's claim which carried no prospect of success and the entire claim is vexatious and without merit.

It is disputed that the Defendant has failed to explain or evidence:

a) Why she should not have to repay the money she has had the benefit of; and

b) Who, if not her, is responsible for accruing the debt, and

The Defendant avers that the Claimant as a bulk debt purchaser is seeking betterment by purchasing 'junk' or 'zombie' accounts in an attempt to profit by purchasing at as low as 10-12% and asking for payment of 100% of what the computer list of names and numbers indicates to them with no regard to whether the data purchased is correct or if the amounts listed are owing. The Defendant avers that the Alleged Assignor acted in breach of the Consumer Credit Act 1974 and could not assign the benefit of the Void Agreement to the Claimant as Nemo dat quod non habet - 'no one gives what they do not have'.

40. It is disputed that the Defendant has been unreasonable under CPR 27.14(2)(g), in that they have:

a) failed to respond to the Claimant's pre-action communications; and

b) failed to respond to the Claimant's solicitor's pre-action communications.

The Defendant avers that they have complied with Civil Procedure and acted reasonably.

The Defendant submits that the Claimant has been unreasonable under CPR 27.14(2)(g), in that they have:

a) failed to respond, in substance, to the Defendant's CPR-18 and CPR-31.14 requests; and

b) failed to provide the Deed of Assignment (sale agreement between the Alleged Assignor and Claimant) despite numerous requests and offers to settle upon receipt of evidence of an outstanding balance being owed to the Claimant.

41. It is disputed that the account was purchased in good faith, and as far as the Claimant is aware. The Claimant who is in the business of profiting out of the bulk purchase of accounts cannot reasonably be unaware of the irresponsible lending practices of the Alleged Assignor:

https://www.bbc.co.uk/news/business-58089605

https://www.independent.co.uk/news/business/news/payday-lender-provident-financial-cynical-christmas-advert-rachel-reeves-business-committee-a8719711.html

and other breaches of financial conduct rules:

https://www.fca.org.uk/news/press-releases/fca-fines-vanquis-1976000-and-orders-vanquis-pay-compensation-customers

It is disputed that any benefit of the Void Agreement is due and owing and the Defendant is liable to pay the same. The Defendant avers that the Claimant has not locus standi 'Legal Standing' to ask for payment of the benefit of the Void Agreement.

ORDER SOUGHT

42. It is disputed that the Claimant is entitled to ask that Judgment is granted in favour of the Claimant for the sum of £1,832.39, plus:

a) Interest of the sum of £146.59 at a rate of 8% is disputed;

b) Issue fee of £115.00 is disputed;

c) Fixed commencement costs in the sum of £80.00 is disputed;

d) Hearing fee of £181.00 is disputed; and

e) The Claimant's costs of attendance at the hearing in the sum of £228.00 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

I am the Defendant in this case.

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 the 20th of December 2021

Signed: [DEFENDANT SIGNATURE]

[DEFENDANT NAME] - Defendant

Dated:

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