Zombie Witness Short Statement Lowell

IN THE COUNTY COURT AT DURHAM

CLAIM NO: [CLAIM NUMBER]

BETWEEN:

LOWELL PORTFOLIO I LTD

Claimant

-and

MR [DEFENDANT]

Defendant

WITNESS STATEMENT OF [THEIR WITNESS NAME]

I,[THEIR WITNESS NAME], of Lowell Solicitors Limited, Darwin House, 7 Savannah Way, Leeds LS10 1AB, WILL SAY as follows:

INTRODUCTION

1. I am a Paralegal in the employ of Lowell Solicitors Limited, the solicitors instructed by the Claimant. I have conduct of this matter subject to the supervision of my Principals and I am duly authorised by the Claimant to make this statement on the Claimant’s behalf.

2. The facts contained in this statement are known to me based on information provided by the Claimant, 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 (“the Agreement) entered into by the Defendant’s online application and e-signature pursuant to the Electronic Communications Act 2000 with Vanquis Bank Limited (“the Assignor”). The Defendant signed the Agreement on 23 August 2016 at 13:58. The application was accepted and the Agreement executed by the Assignor on 24 August 2016 and card number 4023962144312978 was issued to the Defendant. The Agreement and terms and conditions are exhibited hereto at (“MA1”). The Defendant’s e-signature is also timestamped and can be seen on page 5 of the Agreement.

4. The Defendant failed to maintain payments in line with the Terms and Conditions of the Agreement. The last payment made to the Account was for the sum of £45.23 and was paid by direct debit on 28th July 2017 to the Assignor. A copy of the Statement of Account is exhibited hereto at (“MA2”). The last payment is shown on page 2 of 2.

5. The Defendant was sent the Default Notice on 8 November 2017 to his current residence as confirmed in his Defence –[DEFENDANT'S ADDRESS]. A copy of the Default Notice is exhibited hereto at (“MA3”). As a result of no payment being received by the Assignor, a default was registered on his Credit File on or around 30 March 2018.

6. 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. A copy of the Notice of Assignment dated 17 October 2019, is exhibited hereto at (“MA4”). The balance on assignment was £1,144.88. The Notice of Assignment was sent to the current residence of the Defendant.

7. The Claimant attempted to communicate with the Defendant by sending letters to his current residence which encouraged him to contact the Claimant to discuss the outstanding balance, clarify any issues and raise a dispute if necessary. Examples of these letters are exhibited at (“MA5”). The Claimant received no response to their correspondence.

8. A Letter of Claim was served on the Defendant at his current residence on 31 October 2020 and is exhibited hereto at (“MA6”).

9. As the parties were unable to reach settlement of the debt, the Claimant was left with no option but to commence legal action. Legal proceedings were issued on 10 December 2020, and the Claim Form was deemed served on 15 December 2020. The amount outstanding was £1,144.88 and the Statutory Interest pursuant to Section 69 County Courts Act 1984 at the rate of 8% per annum from the date of assignment to the date of issue of the Claim but limited to one year was for the sum of £91.59.

THE DEFENDANT’S DEFENCE

10. In summary, the Defendant’s Defence is:

a. He disputes that he entered into an Agreement with Vanquis and puts the Claimant to strict proof.

b. He disputes the Agreement was terminated because he failed to maintain the required payments. He requests a breakdown of the amount claimed.

c. He disputes the legal assignment and requests a copy of the Deed of Assignment.

d. He disputes that repeated requests have been made.

e. He contends that the Claimant is in breach of rule 16.4(a) of the Civil Procedure Rules.

THE CLAIMANT’S REPLY TO THE DEFENDANT’S DEFENCE

11. Paragraph 1 of the Defence is noted. The Claimant’s position is that the Defendant did originally enter into the Agreement exhibited at (“MA1”) with the Assignor and that he has had the use and benefit of the Agreement as indicated by the Statement of Account exhibited at (“MA2”) which evidences transactions incurred by the Defendant and payments made by him via Direct Debit.

12. Paragraph 2 of the Defence is noted and the Claimant has provided a breakdown of the amount owed in the Statement exhibited at (“MA2”). The Statement clarifies the transactions on the account and the payments received from the Defendant. The transaction descriptions on the Statement such as ‘Lidl UK – Durham’ on 8 June 2017 and ‘Aldi – Durham’ on 10 June 2017 confirm that transactions were carried out in and around Durham, where the Defendant resides.

13. Paragraph 3 of the Defence is noted. The Claimant is not able to provide a copy of the Deed of Assignment as it is a private, confidential and commercially sensitive document. The Defendant is not a party to this document and the Claimant avers it is not a part of or relevant to these proceedings. The Notice of Assignment exhibited at (“MA4”) and other letters from the Claimant were delivered to the Defendant’s current residence. The Claimant received no notice of returned mail from Royal Mail and as such believes service was correct.

14. Paragraph 4 of the Defence is denied. Letters sent to the Defendant’s current residence including the Notice of Assignment and the Letter of Claim exhibited at (“MA4”), (“MA5”) and (“MA6”) indicate that repeated requests for payment were made and were not responded to. The Defendant was also provided opportunities to let the Claimant know if there was any reason he could not pay, and the Claimant would have asked the Assignor to investigate. The Claimant had no choice but to litigate as no response was received from the Defendant.

15. Paragraph 5 of the Defence is denied. The Claimant contends that CPR 16 was complied with. The Particulars of Claim provide enough information for the Defendant to identify the Assignor, the reference number of the account and details of the Assignment. Paragraph 2 of the Claim Form provides a concise statement of the nature of the claim in accordance with CPR 16.2(1)(a) where it states that payments were not maintained, and arrears began to accrue.

a. The Claimant repeats paragraph 3 of this Witness Statement which confirms the date the Agreement was entered into.

b. The Claimant is unsure what the Defendant means by requesting the ‘phone number relating to the Alleged Agreement.’ The Agreement was a credit card agreement as confirmed in paragraph 3 of this Witness Statement and not a mobile phone agreement.

c. The Claimant repeats the paragraph above.

d. The Claimant repeats paragraph 5 of this Witness Statement.

e. The Claimant is relying on a legal assignment.

16. The Claimant’s intention throughout its attempts to communicate with the Defendant was to offer either an affordable repayment plan or resolve the Defendant’s dispute. Had the Defendant explained his reason for non-payment, the Claimant’s process is to place the account on hold and investigate with the Assignor. Should the Defendant’s dispute have been deemed valid; the Claimant would have closed the account. The Defendant’s refusal to communicate directly about the account has led to litigation being necessary.

17. For all of the above reasons, the Claimant respectfully submits that the Defendant’s Defence is without merit and the Defendant is liable for the outstanding amount.

18. As no Statement of Case disclosing any merit whatsoever has been produced by the Defendant, the Claimant respectfully requests the Court strike out the Defence and award Judgment to the Claimant for the balance of £1,236.47, plus fixed commencement costs of £80.00, issue fee of £70.00 and potential hearing fee (due to be paid upon notice of the hearing date) of £115.00.

STATEMENT OF TRUTH

I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a Statement of Truth without an honest belief in its truth.

Dated this day 7 April 2021

Signed……………………………………..

Name: [CLAMAINTS "WITNESS" NAME]

IN THE COUNTY COURT AT DURHAM

CLAIM NO: [CLAIM NUMBER]

BETWEEN:

MR [DEFENDANT]

Defendant

-and

LOWELL PORTFOLIO I LTD

Claimant

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WITNESS STATEMENT OF [DEFENDANT]

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

INTRODUCTION

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

2. . I make this witness statement in direct response to the claimants filing of a witness statement of [THEIR WITNESS NAME] (the ‘Alleged Witness’) dated 7th April 2021 who's statement is based on her employment of a company called Lowell Solicitors Limited. The Alleged Witness bases her entire statement on hearsay evidence from the computer system of the Claimant and the computer system of 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/Subpostmasters-proved-right-on-IT-system-failures-as-calls-for-full-public-inquiry-mount

It is my understanding that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act. The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.

Within this statement I refer to various documents, these are now produced in bundle marked (‘GW1’), (‘GW2’), (‘GW3’) and (‘GW4).

BACKGROUND

3. It is disputed that the Claimant is entitled or has any Legal Standing to issue a Claim for the benefit of an a Credit Card Agreement (the ‘Agreement’)

It is disputed that this was entered into by the Defendant’s online application and e-signature pursuant to the Electronic Communications Act 2000 with the Alleged Assignor.

It is disputed that the Defendant signed the Agreement on 23 August 2016 at 13:58

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..

It is not disputed that the application was accepted and the Agreement executed by the Assignor on 24 August 2016 and card number 4023962144312978 was issued to the Defendant. The Defendant avers that the Agreement was entered into as a result of irresponsible lending practices and in breach of the Consumer Credit Act 1974 Section 25(2B).

The 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.

4. It is accepted as a result of the Alleged Assignor’s irresponsible lending tactics, the Defendant was unable to maintain payments in line with the Terms and Conditions of the Agreement.

It is accepted that the last payment made to the Account was for the sum of £45.23 and was paid by direct debit on 28th July 2017 to the Alleged Assignor.

5. It is not disputed that the Defendant was sent the Default Notice on 8 November 2017 to his current residence as confirmed in his Defence – [DEFENDANT'S ADDRESS].

6. It is disputed that the benefit of the Agreement was subject to a legal assignment dated 23 September 2019 pursuant to Section 136 of the Law of Property Act 1925 from the Alleged Assignor to the Claimant due to the constraints of:

l (i) Section 44 of the Companies Act 2006;

l (ii) The Regulatory Reform (Execution of Deeds and Documents) Order 2005 (S.I.2005/1906), arts. 1(1),3;

l (iii) Section 136 of the Law of Property Act 1925; and;

l (iv) Section 196 of the Law of Property Act 1925.

The Claimant is put to strict proof to provide a copy of the Sale Agreement (the 'Deed of Assignment') they rely on to establish Legal assignment from the Alleged Assignor to the Claimant. The Claimant is put to strict PROOF to show that all three elements of Legal Assignment are satisfied:

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

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

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

It is disputed copy of the Notice of Assignment dated 17 October 2019, exhibited by the Claimant at (“MA4”) has been served in compliance with Section 196 of the Law of Property Act 1925.

It is disputed that the alleged balance of £1,144.88 has been legally assigned to the Claimant. It is disputed that Notice of Assignment has been served by registered mail as required under Section 196 of the Law of Property Act 1925.

7. It is not denied that he Claimant attempted to communicate with the Defendant by sending letters to his current residence which encouraged him to contact the Claimant to discuss the outstanding balance, clarify any issues and raise a dispute if necessary. The Defendant contacted the Claimant on a number of occasions by telephone requesting proof that they owned the account in question. No proof was sent in response.

8. It is denied that a Letter of Claim was served on the Defendant at his current residence on 31 October 2020. It is denied that the document exhibited by the Claimant at (“MA6”) was sent to the Defendant. The Claimant is put to strict proof to provide proof of postage of this letter, available free at the post office with standard mail.

9. It is denied that the Claimant was left with no option but to commence legal action. The Claimant was afforded the opportunity before Court Proceedings were commenced but failed to provide any evidence of Legal ownership of the account in question. It is a matter of record that Legal proceedings were issued on 10 December 2020, and the Claim Form was deemed served on 15 December 2020.

It is denied that the Claimant has the right or any Legal standing to claim the amount of £1,144.88 and the Statutory Interest pursuant to Section 69 County Courts Act 1984 at the rate of 8% per annum from the date of alleged assignment to the date of issue of the Claim but limited to one year was for the sum of £91.59.

THE DEFENDANT’S DEFENCE

10. In summary, the Defendant’s Defence is:

a. He disputes that he entered into an Agreement with Vanquis and puts the Claimant to strict proof.

b. He disputes the Agreement was terminated because he failed to maintain the required payments. He requests a breakdown of the amount claimed.

c. He disputes the legal assignment and requests a copy of the Deed of Assignment.

d. He disputes that repeated requests have been made.

e. He contends that the Claimant is in breach of rule 16.4(a) of the Civil Procedure Rules.

THE CLAIMANT’S REPLY TO THE DEFENDANT’S DEFENCE

11. It is not denied that that the Defendant did originally enter into an Agreement with the Alleged Assignor and that he has had the use and benefit of the Agreement. It is denied that the Alleged Assignor complied with the requirements of the Consumer Credit Act 1974 and engaged in irresponsible lending practices. This is currently subject to a irresponsible lending complaint pending a formal investigation by the Financial Ombudsman.

The Defendant avers that the Claimant is aware of irresponsible lending practices of the Alleged Assignor and seeks to Claim for interest charged on the principle loan which the Alleged Assignor is not entitled to claim and that the Alleged Assignor cannot legally assign to the Claimant - Nemo dat quod non habet' - You cannot give what you do not have.

12. It is not denied that the Statement exhibited at (“MA2”) details the transactions on the account and the payments received from the Defendant. The transaction descriptions on the Statement such as ‘Lidl UK – Durham’ on 8 June 2017 and ‘Aldi – Durham’ on 10 June 2017 confirm that transactions were carried out in and around Durham, where the Defendant resides.

13. It is disputed that the Claimant is not able to provide a copy of the Deed of Assignment as it is a private, confidential and commercially sensitive document.

The Defendant has a right to see the Deed of Assignment as detailed in the Supreme Court:

l 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'

l 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.

It is disputed that Defendant is not a party to this document. If the Claimant has a valid Sale Agreement under the hand of the Assignor, the Defendant would be mentioned by name or account number and it would establish if the Claimants has any Legal Standing to bring this claim.

It is denied that the Deed of Assignment it is not a part of or relevant to these proceedings.

The Defendant avers that the Claimant has not Legal Standing to bring this claim without establishing that they have a Legal Assignment:

l 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."

It is denied that the Notice of Assignment exhibited at (“MA4”) was given to the Defendant as required by Section 136 of the Law of Property Act 1925 by registered mail as required under Section 196 of the Law of Property Act 1925.

It is denied that as the Claimant received no notice of returned mail from Royal Mail and as such believes service was correct. The Claimant is put to strict proof to provide proof of postage by registered mail as required under Section 196 of the Law of Property Act 1925.

See; [Jones v Link Financial Ltd (2013) ] 1 WLR 693 Where at Section 9, the judge 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.

14. It is denied that letters sent to the Defendant’s current residence including the Notice of Assignment and the Letter of Claim exhibited at (“MA4”), (“MA5”) and (“MA6”) indicate that repeated requests for payment were made and were not responded to. The Defendant requested proof of Assignment from the Claimant and was not provided any proof.

It is denied that the Defendant was also provided opportunities to let the Claimant know if there was any reason he could not pay.. It is denied that the Claimant had no choice but to litigate as no response was received from the Defendant.

The Defendant made a formal request for proof of assignment on 17^th December 2020 in a letter exhibited by the Defendant at (‘GW1’) requesting document including but not limited to the Deed of Assignment. The Claimant’s solicitors failed to provide any proof of Assignment and a further two letters were sent to the Claimant’s solicitors requesting documents including the Deed of Assignment. All these requests were ignored and a formal CPR-18 request was made on 24^th March 2021. That CPR-18 request has not been complied with and the Claimant remains in breach of CPR-18 in failing to provide proof of their Legal standing to bring this claim.

15. It is denied that the Claimant complied with CPR 16 in their Particulars of Claim.

The Particulars of Claim do not provide enough information for the Defendant to identify the Alleged Assignor, the reference number of the account and details of the Assignment. It is disputed that Paragraph 2 of the Claim Form provides a concise statement of the nature of the claim in accordance with CPR 16.2(1)(a) where it states that payments were not maintained, and arrears began to accrue. The Defendant avers that the Claimant is in breach of CPR 16 in relation to their Particulars of Claim and respectfully asks the Court to dismiss the Claimants claim for breaches of CPR 16.

In particular, the Particulars of Claim does not identify:

(a) the date that the Defendant is Claimed to have entered into an agreement with Vanquis;

(b) any alleged phone number relating to the Alleged Agreement with Vanquis;

(c) the nature of the agreement with Vanquis;

(d) on which date(s) the Defendant had allegedly failed to

maintain the repayments;

(e) the exact date when Vanquis terminated the agreement and gave notice of the same; and;

(f) whether the Claimant is relying on an Equitable Assignment or a Legal Assignment.

16. It is denied that the Claimant’s intention throughout its attempts to communicate with the Defendant was to offer either an affordable repayment plan or resolve the Defendant’s dispute. The Claimant is a debt purchase company who seeks to profit form demanding payment for sums that are not enforceable by the Alleged Assignor.

It is denied that the Defendant’s refusal to communicate directly about the account has led to litigation being necessary. The Defendant avers that the Claimant, as a debt purchase company, operates on the purchase of debts on an Equitable basis. The assignment of debt by way of a charge is prohibited under Section 136 of the Law of Property Act 1925 and the Defendant avers that the Claimant is not compliant with ANY of the requirements of Section 136 of the Law of Property Act 1925.

17. For all of the above reasons, the Defendant respectfully submits that the Claimant Claim is without merit.

18. The Defendant avers that the Claimant has no Legal standing to bring this claim and seeks betterment by bringing a claim for the benefit of an account they purchased on an Equitable basis and the Claimant’s case is entirely bases on hearsay evidence.

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.

The Defendant reserved the right to cross examine any Alleged Witness relied on by the Claimant in the case in relation to what they claim to have witnessed first hand.

I would also like to take this opportunity to remind the Claimant that under Civil Procedure Rule Part 39 PD 39a (3.3) any documents upon which the claimant intends to rely the ORIGINALS should be brought to any subsequent hearing for examination.

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

STATEMENT OF TRUTH

I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a Statement of Truth without an honest belief in its truth.

Dated this day 12th April 2021

Signed:

Name: [DEFENDANT]