Witness: [DEDENDANTS NAME]
Exhibits: [EXHIBIT NUMBERS]
Date: as signed
CLAIM NUMBER: -----------------
IN THE COUNTY COURT AT BIRMINGHAM
BETWEEN:
PERCH CAPITAL LIMITED
Claimant
-V
[DEDENDANTS NAME]
Defendant
--------------------------------------------------------------------------------
FIRST WITNESS STATEMENT OF [WITNESS NAME]
-------------------------------------------------------------------------------
I, [WITNESS NAME], Customer Strategy Manager of Asset Collections and Investigations Limited, PO Box 123, Blythe, NE24 9ES WILL SAY as follows:
1. I am Customer Strategy Manager in the employment of Asset Collections and Investigations Limited (‘ACI’), the previous owner of the debt relating to this claim and now the Master Servicer in this matter, acting on behalf of the current Claimant in this matter Perch Capital Limited. I have the day-to-day conduct of this matter on behalf of the Claimant and I am duly authorised to make this statement on ACI’s behalf.
2. ACI was the legal and beneficial owner of the rights, title, interest and benefits in and to the assigned documents and the debt to which this claim relates. On and with effect from the 22 August 2019, all rights, title, interest and benefits in and to the assigned documents and the debt were assigned from ACI to Perch Capital Limited. A Notice of Assignment has been issued to the Defendant by way of email, on behalf of Perch Capital Limited advising that Perch Capital Limited are now the owner of the debt and that they would be pursuing collection activity regarding the outstanding debt. A copy of the Notice of Assignment is exhibited hereto as ‘NS1’.
3. I make this witness statement from the facts and matters within my own knowledge and which are contained in the files of papers maintained by ACI and the Claimant in respect of this matter. Where I refer to facts and matters outside my own knowledge, I identify the source of those facts and matters, and I confirm that such facts and matters are true to the best of my knowledge and belief.
4. As per the Order of Deputy District Judge Fentiman dated the 7 September 2020, and the Notice of Trial Order dated the 1 February 2021, this statement is made in response to the Defendant’s Defence dated the 24 March 2020 and in anticipation of the hearing set to take place at Birmingham County Court on the 18 March 2021 at 10:00am.
Factual Background
5. On the 25 March 2018, Cash On Go Ltd (aka Peachy.co.uk) loaned the Defendant the amount of £300.00 under a Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974 “the Credit Agreement”. A copy of the Credit Agreement along with the accompanying Loan Statement is exhibited hereto as ‘NS2’.
6. The Defendant agreed to repay the said sum of £300.00 plus the interest of £152.66, totalling £452.66, within the period of 128 days. As per the Credit Agreement the Defendant opted to repay the balance over 4 monthly instalments.
7. The Credit Agreement was e-signed by the Defendant. The procedure for e-signing is that a code is sent to the mobile telephone number of the Defendant and a link sent to the email address of the Defendant. On clicking on the link, they are obliged to enter the code thus completing the signing.
8. The funds were transferred to the Defendant’s bank account. Details are checked through Call Credit’s CallValidate database. This database confirms the applicant’s identity by verifying the details provided against Call Credit’s financial performance date (credit file) known as SHARE. The details were also confirmed through CallValidate, to ensure the bank account details provided on the application, and to which the funds were transferred to, match the applicant’s name, date of birth and address that is held by the bank.
9. The under-writing checks carried out by Cash On Go Ltd included credit worthiness checks for each and every new loan taken out by the Defendant, detailed assessments of their previous payment behaviour records where applicable (for returning Defendants) and other complex analysis of their data base information to highlight specific and consistent trends of payment success dependent on loan amounts requested and other criteria which were fed into Cash On Go Ltd assessment models.
10. ACI was advised by Cash On Go Ltd that the Defendant failed to make any repayments prior to assignment.
11. ACI was advised by Cash On Go Ltd that as funds were not received in line with the Credit Agreement, they attempted to contact the Defendant to acquire payment without success. The Defendant did not contact Cash On Go Ltd to advise of any change in circumstance to detail why she was unable to make repayments.
12. On and with effect from the 8 November 2018, Cash On Go Ltd assigned to ACI along with all its rights, title, interest and benefits in and to the assigned documents and the debt.
13. The value of the debt upon assignment was £600.00 and this was calculated using the terms of the Credit Agreement. This was a rate-capped product, meaning that under the Credit Agreement interest and default charges could only accrue to a maximum of double the original loan amount. Double the original loan amount (£300.00) is £600.00.
14. Cash On Go Ltd provided a warranty at the time of sale that they have fully complied with the Consumer Credit Act 1974 up until the point of assignment.
15. A Notice of Assignment was subsequently sent to the Defendant by ACI on the 23 November 2018 by way of email advising that they would pursue collection activity regarding the outstanding debt. A copy of the Notice of Assignment is exhibited hereto as ‘NS3’.
16. By way of reference, we trust the Notice of Assignment provided by the debt purchaser (ACI) is sufficient in this case to prove the assignment. Nevertheless, we refer to the High Court case of Jones v Link Financial Limited [2013] 1 WLR 693 whereby only one assignment notice was sufficient in the case, as the Claimant does not hold a copy of the Notice of Assignment issued by Cash On Go Ltd.
17. We acknowledge that a proof of sale of this debt may be required, however, this debt was assigned pursuant to the Law of Property Act 1925 and as the Defendant is not a party to the agreement with Cash On Go Ltd, we cannot share a copy of the document due to it being subject to confidentiality and the fact that it contains commercially sensitive information.
18. During the period of the 23 November 2018 to the 25 March 2019 ACI attempted to contact the Defendant by telephone, post, email and SMS message on numerous occasions in an attempt to ascertain why the full contractual payment could not be made. The Defendant failed to respond to any of ACI’s letters, messages, calls or emails.
19. On the 29 March 2019, TM Legal Services Limited were instructed to act on behalf of ACI in order to recover the outstanding debt and an email was sent to the Defendant notifying them of this instruction, exhibited hereto as ‘NS4’.
20. Subsequently, TM Legal Services Limited issued a Letter of Claim to the Defendant on the 9 April 2019, which in accordance with the Pre-Action Protocol for Debt Claims, provided a further 30 days for the Defendant to respond. The Letter of Claim also included an Information Sheet, a Reply Form and a Standard Financial Statement, exhibited hereto as ‘NS5’.
21. On the 1 May 2019 TM Legal Services Limited received a letter from the Defendant requesting copies of the original credit documents. TM Legal Services Limited responded promptly on the 1 May 2019 by way of email providing the Defendant with the requested documents. A copy of file note sending this email is exhibited hereto as ‘NS6’.
22. On the 20 May 2019 TM Legal Services Limited received a second letter from the Defendant again requesting copies of the original credit documents. TM Legal Services Limited responded promptly on the 20 May 2019 by way of email providing the Defendant with the requested documents. A copy of the file note sending this email is exhibited hereto as ‘NS7’.
23. During the period of the 22 May 2019 to the 22 August 2019 TM Legal Services Limited continued to contact the Defendant by email and SMS message on numerous occasions in an attempt to settle the matter amicably. The Defendant failed to respond to any of their messages or emails.
24. As stated in paragraph 2 above, on and with effect from the 22 August 2019, all rights, title, interest and benefits in and to the assigned documents and the debt were assigned from ACI to the Claimant, Perch Capital Limited. A Notice of Assignment was sent to the Defendant by way of email, advising that Perch Capital Limited are now the owner of the debt and that they have instructed ACI to act as Master Servicer of the account to continue to manage the collection of the debt, who in turn have instructed TM Legal Services Limited as legal representative (‘NS1’).
25. During the period of 6 September 2019 to the 1 February 2020 TM Legal Services Limited continued to contact the Defendant by email and SMS message on numerous occasions in an attempt to settle the matter amicably. The Defendant failed to respond to any of their messages or emails.
26. On the 10 February 2020 TM Legal Services Limited sent a letter to the Defendant stating that they have been instructed to issue County Court proceedings on behalf of the Claimant, to recover the outstanding debt, if they do not come to an amicable payment arrangement within the next seven days. A copy of this letter is exhibited hereto as ‘NS8’.
27. The Defendant failed to respond to this letter.
28. At no point between the date of the Credit Agreement being assigned from Cash On Go Ltd and the date Court action was commenced did the Defendant inform the Claimant of any change in circumstances. All postal correspondence was sent to the address details that were provided by Cash On Go Ltd, which have been confirmed to be the address the Defendant is
residing at based on both the N9 Acknowledgment of Service and the N9B Defence forms submitted confirming this.
29. As the Defendant had failed to respond to the Claimant, County Court action was commenced via Money Claims Online on the 24 February 2020 and proceedings were deemed issued on the 25 February 2020. The claim pack was issued to the address that the Claimant held for the Defendant. A copy of the Claim Form is exhibited hereto as ‘NS9’.
30. The Defendant filed an Acknowledgment of Service on the 28 February 2020. A copy of the Acknowledgment of Service is exhibited hereto as ‘NS10’. The Defendant failed to serve a copy of the Acknowledgment of Service on the Claimant and it was not until the Court provided the Claimant with a copy that they had the opportunity to consider the same.
31. The Defendant filed a Defence on the 25 March 2020. A copy of the Defence is exhibited hereto as ‘NS11’. The Defendant failed to serve a copy of the Defence on the Claimant and it was not until the Court provided the Claimant with a copy that they had the opportunity to consider the same.
32. In response to the Defendant’s submitted Defence, we have provided adequate documentation with the details of the Defendant confirming the legitimacy and validity of the loan and its assignment to the Claimant. The Claimant also highlights that the address for the Defendant is the same as the details on the Credit Agreement, the Letter of Claim, the Letter warning of Court proceedings and the Claim Form. As previously mentioned in paragraph 28 above, confirmed by the Defendant as the correct address on both the N9 Acknowledgment of Service and the N9B Defence forms submitted confirming this.
33. Furthermore, the Claimant would also like to draw attention to the fact that on the 11 March 2020 TM Legal Services Limited received another letter from the Defendant requesting copies of the original credit documents and raising a Data Subject Access Request (‘SAR’) under the GDPR. TM Legal Services Limited responded promptly on the 11 March 2020 via post with the requested documents. A copy of this letter is exhibited hereto as ‘NS12’. They also referred the SAR to their Data Protection Officer who actioned this accordingly. The Claimant has not received any correspondence from the Defendant since to set up a payment arrangement or raise any further disputes, despite many further attempts being made to settle the matter amicably.
34. The Claimant notes that the Defendant does not expressly deny taking out this loan, failing to repay it, or that the monies claimed are now owed to the Defendant.
35. The Claimant is aware that the only correspondence they have ever received from the Defendant on this matter, including the Defence filed, is template correspondence freely available online, which they have seen a number of times in the exact same format on a number of completely unrelated matters. The Claimant does not accept that this correspondence bears any relevance to the facts of this case and will say that the information provided within this statement and the documents exhibited therein prove that beyond the balance of probability the Defendant took out this loan, failed to repay, and now owes the debt to the Claimant.
36. The Claimant will say that nevertheless they have responded to every request from the Defendant for documentation relating to this claim in an attempt to engage the Defendant and to try and resolve this matter amicably. The Defendant has been totally unreasonable by refusing to engage with the Claimant, despite having no apparent defence to this claim, and the Claimant will say that the Defence is merely a final attempt to avoid repaying this debt.
37. The Claimant respectfully requests that the Defendant’s defence be struck out and Judgment be granted in favour of the Claimant.
Costs
38. In accordance with the Credit Agreement from Cash On Go Ltd the Claimant is entitled to add interest and default charges and these have been included in the Claim.
39. The Claimant claims £872.20 made up as follows:
Amount of Original Loans Outstanding
£600.00
Court Issue Fee
£60.00
County Court Interest
£62.20
Solicitor’s Fixed Costs on Commencement of Claim
£70.00
Hearing Fee
£80.00
Case Management Directions
40. In light of the above, and with regard to the fact that the Defendant has failed to respond to the Claimant, failed to make any payments, failed to provide any explanation as to why payments have not been made, breached the terms and conditions of the Credit Agreement with Cash On Go Ltd and denied the Claimant the opportunity to settle the matter amicably, despite many attempts, the Claimant kindly requests the Court to find in favour of the Claimant.
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.
Name: [THEIR "WITNESS NAME"]
Signature:
Position of Responsibility: Customer Strategy Manager
Date: 04/03/2021
Witness: ------------------
Exhibits: RG01 – RG05
Date: 10th March 2021
IN THE COUNTY COURT AT BIRMINGHAM
CLAIM NUMBER: --------------
BETWEEN:
------------------ ---------------------
Defendant
v
PERCH CAPITAL LIMITED
Claimant
----------------------------------------------------------------
FIRST WITNESS STATEMENT OF -------------------
----------------------------------------------------------------
I, ------------------------------- of -------------------------------- WILL SAY as follows: I am the defendant in this case. The contents of this statement are true to the best of my knowledge, information and belief.
1. I make this witness statement in readiness for the fixed hearing on 18th March 2021 at 10am.
This statement is in direct response to the claimants filing of a witness statement of Nathan Southern dated 4th March 2021 who's statement is based on his employment of a company called Asset Collections and Investigations Limited (the ‘Alleged Assignor’) who are not a party to these proceedings. Within this statement I refer to various documents, these are now produced in bundle marked ‘RG01’,’ RG02’,’RG03’, ‘RG04’, ‘RG05’.
It is disputed that the Alleged Assignor was the previous owner of a debt relating to this claim. The Claimant has provided no evidence that the Alleged Assignor had legal title to be able to assign the benefit of any alleged agreement(s) to the Claimant. 'Nemo dat quod non habet' - You cannot give what you do not have.
It is disputed that Nathan Southern (the 'Alleged Witness') as an employee of the Alleged Assignor is a able to act on behalf of the current Claimant in this matter Perch Capital Limited with any degree of impartiality. As a company seeking to profit from the sale of alleged accounts to the Claimant the Defendant avers that any Witness Statement must present a certain amount of bias and is entirely reliant on hearsay evidence of data stored on the computer systems and documents printed from those systems owned by the Claimant, Alleged Assignor and Alleged Original Assignor. Any data generated in error by human input, software defect or act of hacking would be passed along form the Alleged Assignor to alleged assignee.
The failure of such systems have been brought to light by the recent case where sub-postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:
https://www.computerweekly.com/news/252475611/Subpostmasters-proved-right-on-IT-system-failures-as-calls-for-full-public-inquiry-mount
It is my understanding that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act. The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.
2. It is disputed that the Alleged Assignor was the legal and beneficial owner of the rights, title, interest and benefits in and to the assigned documents and the debt to which this claim relates. It is disputed that on and with effect from the 22 August 2019, all rights, title, interest and benefits in and to the assigned documents and the benefit of the Alleged Agreement were assigned (the 'Second Alleged Assignment') from the Alleged Assignor to the Claimant due to the constraints of:
(i) Section 44 of the Companies Act 2006;
(ii) The Regulatory Reform (Execution of Deeds and Documents) Order 2005 (S.I.2005/1906),
arts. 1(1),3;
(iii) Section 136 of the Law of Property Act 1925; and;
(iv) Section 196 of the Law of Property Act 1925.
The Claimant is put to strict proof to provide the Deed of Assignment required for absolute assignment of the Alleged Agreement. 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.
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'
And; [Webster v Ridgeway (2009) ] - Where a debtor is entitled to see a redacted version.Also; Jones v Link Financial Ltd | [2013] 1 WLR 693 Where it was found that three conditions for the validity of such an assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.
The Claimant is put to strict PROOF to show that all three elements of Legal Assignment are satisfied:
a. that the assignment is absolute and not by way of a charge;
b. that it is in writing under the hand of the assignor (the 'Deed of Assignment');
c. and that express notice in writing has been given to the debtor.
It is disputed that Notice of Assignment has been issued by email. Regardless of whether or not notice was sent using this method of delivery, sending a document in this way is not compliant with the Law of Property Act 1925 which requires that Notice be given to the debtor s136 by registered mail s196 Law of Property Act 1925. It is Disputed that the Defendant was given any
Notice of Assignment for any of the Alleged Assignment as required by Section 136 of the Law of Property Act 1925. The Claimant should provide proof that any Notice of Assignment was given or served on the Defendant in compliance with both Section 136 and Section 196 of the Law of Property Act 1925.
It is denied that the document exhibited by the Claimant at ‘NS1’ has been given to the Defendant as per Section 136 and Section 196 of the Law of Property Act 1925.
3. It is disputed that the witness statement the Alleged Witness is from the facts and matters within his own knowledge and which are contained in the files of papers maintained by the Alleged Assignor and the Claimant in respect of this matter. The Alleged Witness is reliant solely on the hearsay evidence within those documents which are compiled by data entered by a third party onto a computer and his entire Witness Statement should be regarded as hearsay evidence.
It is disputed that where the Alleged Witness refers to facts and matters outside his own knowledge, he identifies the source of those facts and matters. The Alleged Witness and cannot attest to the accuracy of documents and computer files that were compiled by neither the Claimant's or the Alleged Assignor's company. The Claimant should provide direct Witness testimony and not rely solely on hearsay evidence.
4. As per the Order of Deputy District Judge Fentiman dated the 7 September 2020, and the Notice of Trial Order dated the 1 February 2021, this statement is made in response to the statement of Nathan Southern dated 4th March 2021 and in anticipation of the hearing set to take place at Birmingham County Court on the 18 March 2021 at 10:00am.
Factual Background
5. It is accepted that on the 25 March 2018, Cash On Go Ltd aka Peachy.co.uk (the 'Alleged Original Assignor') loaned the Defendant the amount of £300.00 under a Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974 (the 'Alleged Agreement') but in breach of the Consumer Credit Act 1974 Section 25(2B).
It is disputed that the document exhibited by the Claimant at "NS2" is a copy of the Alleged Agreement along with the accompanying Loan Statement. The Claimant is put to strict proof to provide a signed copy of the Contract upon which they rely as per the Consumer Credit Act 1974.
I would also like to take this opportunity to remind the Claimant that under Civil Procedure Rule Part 39 PD 39a (3.3) any documents upon which the claimant intends to rely the ORIGINALS should be brought to any subsequent hearing for examination.
6. It is accepted that the Defendant agreed to repay the said sum of £300.00 plus the interest of £152.66, totalling £452.66, within the period of 128 days. It is denied that, as per the Alleged Agreement, the Defendant opted to repay the balance over 4 monthly instalments. The Claimant is put to strict proof to show how they claim this repayment arrangement was made. The
Defendant avers that the Alleged Original Assignor extended credit in breach of the Consumer Credit Act 1974 Section 25(2B) which is currently subject to a complaint for irresponsible lending.
7. It is denied that the Credit Agreement was e-signed by the Defendant. The procedure for e-signing is that a code is sent to the mobile telephone number of the Defendant and a link sent to the email address of the Defendant. On clicking on the link, they are obliged to enter the code thus completing the signing. The Claimant is put to strict proof to show that the Defendant completed the e-signing process and provide the number of the telephone they alleged received the link.
8. It is accepted that the funds were transferred to the Defendant’s bank account by the Alleged Original Assignor who is not a party to this claim. The Claimant appears to rely on hearsay evidence in relation to the Validation methods used by the Alleged Original Assignor. It is disputed that the Claimant has any Legal standing to claim any sums on behalf of the Alleged Original Assignor.
9. It is disputed that the under-writing checks carried out by the Alleged Original Assignor. The Claimant is again reliant upon third party hearsay and is in no position to state what checks and balances were carried out by the Alleged Original Assignor in relation to the Alleged Agreement. The Defendant avers that the Claimant has no Legal standing to bring this claim and is entirely reliant on hearsay evidence.
10. It is disputed that the Alleged Assignor was advised by the Alleged Original Assignor that the Defendant failed to make any repayments prior to the Alleged Assignment. The Claimant is put to strict proof to provide the method of this communication and provide a copy of such communication.
11. It is disputed that the Alleged Assignor was advised by the Alleged Original Assignor that as funds were not received in line with the Alleged Agreement, they attempted to contact the Defendant to acquire payment without success. It is disputed that the Defendant was under any obligation to contact the Original Alleged Assignor to advise of any change in circumstance to detail why she was unable to make repayments.
The Defendant avers that the Claimant's case is based entirely on hearsay evidence. 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.
12. It is disputed that on and with effect from the 8 November 2018, the Alleged Original Assignor assigned to the Alleged Assignor (the 'First Alleged Assignment'), along with all its rights, title, interest and benefits in and to the assigned documents and the debt due to the constraints of:
(i) Section 44 of the Companies Act 2006;
(ii) The Regulatory Reform (Execution of Deeds and Documents) Order 2005 (S.I.2005/1906),
arts. 1(1),3;
(iii) Section 136 of the Law of Property Act 1925; and;
(iv) Section 196 of the Law of Property Act 1925.
The Claimant is put to strict proof to provide a copy of the Sale Agreement (the 'Deed of Assignment') they rely on to establish Legal assignment for the First Alleged Assignment. The Claimant is put to strict PROOF to show that all three elements of Legal Assignment are satisfied:
a. that the assignment is absolute and not by way of a charge;
b. that it is in writing under the hand of the assignor (the 'Deed of Assignment');
c. and that express notice in writing has been given to the debtor
13. It is disputed that the value of the debt upon assignment was £600.00 and this was
calculated using the terms of the Credit Agreement. This was a rate-capped product, meaning that under the Credit Agreement interest and default charges could only accrue to a maximum of double the original loan amount. Double the original loan amount (£300.00) is £600.00.
14. As the Claimant has not provided any proof of assignment or supporting documentation, It is not disputed that the Alleged Original Assignor provided a warranty at the time of sale to, presumably, the Alleged Assignor, that they have fully complied with the Consumer Credit Act 1974 up until the point of Alleged Assignment but it is disputed that the Alleged Original Assignor fully complied with the Consumer Credit Act 1974.
15. It is disputed that a Notice of Assignment was subsequently sent to the Defendant by the Alleged Assignor on the 23 November 2018 by way of email advising that they would pursue collection activity regarding the alleged outstanding debt. It is denied that the document exhibited by the Claimant at 'NS3' was given to the Defendant as per the requirements of Section 136 and Section 196 of the Law of Property Act 1925.
The Claimant is put to strict proof to provide a signed copy of the contract upon which they rely and that a compliant Default Notice was served in relation to the alleged agreement pursuant to the Consumer Credit Act 1974 s. 87 & 88 (1).
16. It is disputed that the Notice of Assignment allegedly provided by the debt purchaser (ACI) is sufficient in this case to prove the Alleged Assignment. Nevertheless, we refer to the High Court case of Jones v Link Financial Limited [2013] 1 WLR 693 whereby only one assignment notice was sufficient in the case, as the Claimant does not hold a copy of the Notice of Assignment issued by the Alleged Original Assignor.
The Defendant refers to the case of Jones v Link Financial Ltd | [2013] 1 WLR 693 Where it was found that THREE conditions for the validity of such an assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.
The Claimant is put to strict PROOF to show that all three elements of Legal Assignment are satisfied for BOTH the First Alleged Assignment and the Second Alleged Assignment:
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.
17. The Claimant acknowledges that a proof of sale of this debt may be required.
It is disputed that the benefit of the Alleged Assignment was assigned pursuant to the Law of Property Act 1925. The Defendant avers that proof is required not only for the Second Alleged Assignment but also for the First Alleged Assignment.The Claimant claims that as the Defendant is not a party to the agreement with Cash On Go Ltd, they cannot share a copy of the document due to it being subject to confidentiality and the fact that it contains commercially sensitive information.
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'
And; [Webster v Ridgeway (2009) ] - Where a debtor is entitled to see a redacted version.
The two cases demonstrate the entitlement for the Defendant to view both Sale Agreements (Deeds of Assignment) in relation to both the First Alleged Assignment and the Second Alleged Assignment. The Defendant has requested these documents in a CPR 31.14 request and more recently in a CPR-18 request, but the Claimant has failed to provide either of the two Deeds of
Assignment required to demonstrate the Claimant's legal standing to bring this case to court:
The Defendant cites the case 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 atlaw without joining the assignor, old Foremans."
18. It is disputed that during the period of the 23 November 2018 to the 25 March 2019 the Alleged Assignor attempted to contact the Defendant by telephone, post, email and SMS message on numerous occasions in an attempt to ascertain why the full contractual payment could not be made. It is denied that the Defendant failed to respond to any of the Alleged Assignor's letters, messages, calls or emails. The Claimant should provide details of where they were sending such messages, which email address and which telephone number.
19. It is not disputed that on the 29 March 2019, TM Legal Services Limited were instructed to act on behalf of the Alleged Assignor in order to recover the alleged outstanding debt. It is denied that an email was sent to the Defendant notifying them of this instruction. It is denied that the document exhibited by the Claimant at ‘NS4’ was received by the Defendant.
20. It is accepted that subsequently, TM Legal Services Limited issued a Letter of Claim to the Defendant on the 9 April 2019, which in accordance with the Pre-Action Protocol for Debt Claims, provided a further 30 days for the Defendant to respond. The Letter of Claim also included an Information Sheet, a Reply Form and a Standard Financial Statement, exhibited by the Claimant at ‘NS5’.
21. It is disputed that on the 1st May 2019 TM Legal Services Limited received a letter from the Defendant requesting copies of the original credit documents. A letter was received and signed for by the Claimant on 24th April 2019, The Defendant draws the court attention to document - Exhibit RG4. requesting 7 items, of which the Contract as per the Consumer credit act 1974 isonly one of those items. The requested documents were:
i) A copy of the contract as per the consumer credit act;
ii) Statements of account;
iii) list of default charges;
iv) a copy of the Default notice;
v) a copy of the Deed of Assignment (sale agreement;
vi) a copy of proof of service of any Notice of Assignment;
vii) a copy of the alleged Notice of Assignment;
It is denied that TM Legal Services Limited responded promptly on the 1 May 2019 by way of email providing the Defendant with the requested documents. The Defendant has not yet received a signed copy of the Alleged Agreement with the Alleged Original Assignor or any proof of a valid Legal assignment and avers that the Claimant has no Legal standing to bring this claim.
The documents exhibited by the Claimant at ‘NS6’ does not show that the Claimant complied with the request for a copy of the contract and totally ignored the request for a copy of the Deed of Assignment in relation to the Second Alleged Assignment. The Defendant draws the Courts attention to Exhibit ‘RG01’ which is a copy of the letter sent to the Claimant and received by TM Legal Services Limited on 11th May 2019 giving them the opportunity to provide proof that they Legally owned the benefit of the Alleged Agreement.
22. It is denied that on the 20 May 2019 TM Legal Services Limited received a second letter from the Defendant again requesting copies of the original credit documents. The Alleged Assignor (Asset Collects) did receive a letter from the Defendant on 14/05/2019 and may have passed this communication to the Claimant’s representatives. The Defendant draws the Courts attention to Exhibit - ‘RG03’. The Defendant has not yet received any evidence of Legal assignment from either the Alleged Original Assignor to the Alleged Assignor or from the Alleged Assignor to the Claimant. It id denied that TM Legal Services Limited responded promptly on the 20 May 2019 by way of email providing the Defendant with the requested documents. A copy of the file note sending this email is exhibited hereto as ‘NS7’ and demonstrates that documents that the Claimant was unable or unwilling to supply such as evidence of Legal Assignment, requests for such documents were simply ignored. NS7 refers to some of the documents that the Defendant requested from the Alleged Assignor, but the document exhibited by the
Claimant at ‘NS7’ is only a screenshot of an internal note and does not actually include the documents that the Claimant provided.
23. It is denied that during the period of the 22 May 2019 to the 22 August 2019 TM Legal Services Limited continued to contact the Defendant by email and SMS message on numerous occasions in an attempt to settle the matter amicably. It is denied that he Defendant failed to respond to any of their messages or emails. The Claimant should specify what phone number and email address they were sending messages to. The Defendant after requesting proof of debt and proof of assignment sent a Cease and Desist notice to the Alleged Assignor - see Exhibit ‘RG03’ on 13th May 2019 drawing, as far as the Defendant was concerned, a line underneath the matter as the Alleged Assignor either could not, or would not provide proof of Legal Assignment.
24. It is disputed that on and with effect from the 22 August 2019, all rights, title, interest and benefits in and to the assigned documents and the debt were assigned from the Alleged Assignor to the Claimant, Perch Capital Limited. It is denied that a Notice of Assignment was sent to the Defendant by way of email. It is denied that the document exhibited by the Claimant at (‘NS1’) was received by the Defendant. To be compliant with Section 136 and Section 196 of the Law of Property Act 1925 the Claimant should demonstrate that notice was given to the Defendant by registered mail. By Claiming to have emailed the Notice of Assignment, the claimant is demonstrating that they are not compliant with the Law of Property Act 1925 and they have no Legal standing to bring this claim.
See: (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - "Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans."
25. It is denied that during the period of 6 September 2019 to the 1 February 2020 TM Legal Services Limited continued to contact the Defendant by email and SMS message on numerous occasions in an attempt to settle the matter amicably. It is denied that the Defendant failed to respond to any of their messages or emails. The Claimant should specify what email and phone number they were sending messages to and if they were not responded to, why they did not contact the Defendant by registered or recorded mail rather than relying on electronic communication.
26. It is admitted that on the 10 February 2020 TM Legal Services Limited sent a letter to the Defendant stating that they have been instructed to issue County Court proceedings on behalf of the Claimant, to recover the outstanding debt, if they do not come to an amicable payment arrangement within the next seven days. To be compliant with Pre-Action Protocol, the Claimant should have issued a "Letter of Claim" giving 30 days for the Defendant to respond within the protocol. The Claimants letter demonstrates that they have not complied with Pre-Action Protocol and have issued their claim prematurely and without seeking any alternative resolution whatsoever.
A copy of this letter is exhibited by the Claimant at ‘NS8’.
27. It is denied that the Defendant failed to respond to this letter. The Defendant responded to this letter on 23/02/2020, the same day that this letter was received by the Defendant, see Exhibit ‘RG05’. It is denied that the Defendant had any contractual duty to the Claimant or the Claimant's solicitors and these matters had been disputed in correspondence that the Alleged Assignor did not respond to. See exhibits: 'RG01', 'RG02' and 'RG03'. Had the Alleged Assignor engaged with the Defendant upon receipt of these letters and supplied the documents to prove that the Alleged Assignor and/or the Claimant had good Legal title to the benefit of the Alleged Agreements, there would have been no need for any court action.
28. It is denied that at no point between the date of the Credit Agreement being subject to an Alleged Assignment from Cash On Go Ltd and the date Court action was commenced did the Defendant inform the Claimant of any change in circumstances.
The Alleged Agreement was subject to a further Assignment from the Alleged Assignor to the Claimant with absolutely no evidence of Legal Assignment being provided to the Defendant despite CPR 31.14 and CPR 18 requests being sent to the Claimant’s solicitors. The Claimant is put to strict proof to show the two Deeds of Assignment to establish their legal standing to bring this claim.
29. It is denied that as the Defendant had failed to respond to the Claimant, County Court action was commenced via Money Claims Online on the 24 February 2020 and proceedings were deemed issued on the 25 February 2020. The claim pack was issued to the address that the Claimant held for the Defendant. A copy of the Claim Form is exhibited by the claimant ‘NS9’.
The Defendant avers that the Claimant breached Pre-Action Protocol and did not engage in meaningful negotiations within the Protocol and has brought this action, despite repeated requests for proof of assignment, with no legal standing whatsoever.
30. It is accepted that the Defendant filed an Acknowledgement of Service on the 28 February 2020. A copy of the Acknowledgement of Service is exhibited by the Claimant at ‘NS10’.
31. It is accepted that the Defendant filed a Defence on the 25 March 2020. It is accepted that the Defendant failed to serve a copy of the Defence on the Claimant and it was not until the Court provided the Claimant with a copy that they had the opportunity to consider the same. The Defendant is a litigant in person with no legal training and was unaware of requirements toprovide the Claimant with a copy of the defence in advance of the Court providing a copy. The Defendant followed court procedure and submitted a defence as per the standard MCOL online instructions. The Claimant admits that they received a copy of the defence provided by the Court and suffers no loss due the actions of the Defendant.
32. It is disputed that in response to the Defendant’s submitted Defence, the Claimant have provided adequate documentation with the details of the Defendant confirming the legitimacy and validity of the loan and its assignment to the Claimant. The Claimant, despite CPR 31.14request and CPR-18 request steadfastly refuses to provide the Deed of Assignment that is required for the Claimant to demonstrate their Legal standing to bring this claim.
The Claimant also highlights that the address for the Defendant is the same as the details on the Credit Agreement, the Letter of Claim, the Letter warning of Court proceedings and the Claim Form. As previously mentioned in paragraph 28 above, confirmed by the Defendant as the correct address on both the N9 Acknowledgement of Service and the N9B Defence forms submitted confirming this.
33. It is accepted that on the 11 March 2020 TM Legal Services Limited received another letter from the Defendant requesting copies of the original credit documents and raising a Data Subject Access Request (‘SAR’) under the GDPR. It is disputed that TM Legal Services Limited responded promptly on the 11 March 2020 via post with the requested documents. If TM Legal Services had in it’s possession valid documentation to establish their legal standing in this case, the Defendant would have expected TM Legal Services to supply such documents. It is denied that the document exhibited by the Claimant
‘NS12’ is a valid response to the Subject Access Request.
34. It is accepted that the Defendant does not expressly deny taking out this loan. Which was extended in breach of the Consumer Credit Act 1974 and is currently subject to an irresponsible lending complaint.
As the loan was not extended by the Alleged Original Assignor in isolation, It is denied that the sums claimed by the Alleged Original Assignor were owed due to irresponsible lending practices. It is denied that any monies claimed are now owed to the Claimant who has failed to demonstrate any legal standing in this matter.
35. It is denied that the only correspondence the Claimant has ever received from the Defendant on this matter, including the Defence filed, is template correspondence freely available online. This is an Ad Hominem attack and on the internet as a source of information and it is totally inaccurate to describe the Defendant's communications, unlike that of the Claimant, as template letters.
It is denied that this correspondence bears any relevance to the facts of this case. It is denied that the information provided within the Claimant's witness statement prove that, beyond the balance of probability, the Defendant took out this loan, failed to repay, and now owes the debt to the Claimant. The Claimant has failed to demonstrate any legal standing in bringing this claim.
36. It is disputed that the Claimant have responded to every request from the Defendant for documentation relating to this claim in an attempt to engage the Defendant and to try and resolve this matter amicably. The Claimant were given every opportunity prior to bringing this action before the court, to prove their legal standing by providing the Sale Agreement (Deed of Assignment) and have consistently refused to do so. It is denied that Defendant has been totally unreasonable by refusing to engage with the Claimant. It is denied that the Defendant has no apparent defence to this claim. The Claimant has a duty to prove every element of this case. The Claimant has failed to provide the documentation in attempt to deny the Defendant from properly examining those documents despite both CPR 34.14 and CPR 18 requests to supply those documents. The Claimants actions are totally unreasonable.
37. The Defendant respectfully requests that the Claimant’s claim be struck out and Judgment be granted in favour of the Defendant.
Costs
38. It is denied that In accordance with the Alleged Agreement from the Alleged Original Assignor that the Claimant is entitled to add interest and default charges.
39. It is denied that the Claimant is entitled to claim £872.20 made up as follows:
Alleged amount of Original Loans Outstanding £600.00 is disputed
Court Issue Fee £60.00 is disputed
County Court Interest £62.20 is disputed
Solicitor’s Fixed Costs on Commencement of Claim £70.00 is disputed
Hearing Fee £80.00 is disputed
The defendant invites the court to dismiss this claim and to allow such defendants costs as are
permissible under civil procedure rule 27.14.
Case Management Directions
40. In light of the above, and with regard to the fact that the Claimant has completely wasted the Courts time in this matter by failing to provide the fundamental documents that would establish their Legal standing and the fact that this matter could have been resolved by the Claimant supplying such documents to the Defendant when asked on 11th April 2019, the
Defendant avers that the Claimant has no Legal Standing to bring this claim and has failed to supply the TWO Deed of Assignment on request because the do not meet the requirements of the Law of Property Act 1925 and the Claimant has no Legal right to bring this claim, the Defendant kindly requests the Court to find in favour of the Defendant.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.
Name: [DEFENDANTS NAME]
Signature:
The Defendant
Date: 10/03/2021