ZOMBIE "witness" Statement

IN THE COUNTY COURT AT NORTHAMPTON

CLAIM NUMBER: 123456789

BETWEEN:

LOWELL PORTFOLIO I LTD

Claimant

-and-

[DEFENDANT'S NAME]

Defendant

WITNESS STATEMENT

I, [THEIR WITNESS NAME] of Overdales Solicitors, whose registered address is Ellington House, 9 Savannah Way, Leeds Valley Park West, Leeds LS10 1AB, WILL SAY as follows:

INTRODUCTION

1. I am a Senior Complex Litigation Paralegal in the employ of Overdales solicitors, 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 witness statement on the Claimant’s behalf.

2. The facts contained in this witness statement are known to me, save as where expressly stated, from review of the Claimant’s computerised case management system and are true to the best of my knowledge, information and belief.

IN THE COUNTY COURT AT NORTHAMPTON

CLAIM NUMBER: 123456789

BETWEEN:

[DEFENDANT'S NAME]

Defendant

-and-

LOWELL PORTFOLIO I LTD

Claimant

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

WITNESS STATEMENT OF [WITNESS NAME]

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I, [WITNESS NAME], of [WITNESS 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 22nd April

2021 who's statement is based on her employment of a company called Lowell 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 (‘AMS1’) a CPR-18 request made to the Claimant.

BACKGROUND

3. The Claim consists of debts due under two separate accounts that have been assigned to the Claimant:

Claimant’s Reference Original Creditor Original Creditor Reference

Account 1 - 230829123 Vanquis Bank Ltd 4023962124662123

Account 2 - 236044123 NewDay Ltd 3915150004088123

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

BACKGROUND

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

3. It is not denied that at the Claim consists of alleged debts under two separate accounts. It is denied that they have been assigned to the Claimant: Claimant’s

Reference Alleged Assignor Alleged Assignor Reference

Account 1 - 230829123 Vanquis Bank Ltd 4023962124662123

Account 2 - 236044123 NewDay Ltd 3915150004088123

4. The Defendant will now address the alleged information provided by the Claimant on each of the afore mentioned accounts in turn.

ACCOUNT 2

13. Account 2 relates to a credit agreement dated on or around 22 July 2013 (“the Agreement”) between the Defendant and Progressive Credit Limited in relation to an Aqua Credit Card with the account number of 3915150004088123. In 2014, Progressive Credit Limited changed names to NewDay Ltd (“NewDay”) (“the Assignor”). A copy of the reconstituted credit agreement is exhibited hereto at “ID5”.

14. The Assignor has provided copies of statements which evidences how the Defendant accrued the debt and this is exhibited hereto at “ID6”. The statements evidence that the Defendant had the use and benefit of the agreement.

15. Although the Defendant had the use and benefit of the Agreement, the Defendant breached the Agreement by failing to maintain the agreed repayments. The Assignor has confirmed that the Defendant last made a payment on 5 October 2015 in the sum of £90.46 and this is evidenced on the statement dated 19 October 2015 that is exhibited at “ID6”.

16. 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 Default Notice dated 1 January 2016 that was sent to the Defendant by the Assignor. A copy of the Default Notice dated 1 January 2016 is exhibited hereto at “ID7”.

17. The date at which the Default Notice expired is the date upon which the cause of action accrued. A Default Notice was served on the Defendant dated 1 January 2016, which required the Defendant to remedy the arrears by 22 January 2016.

18. The Claimant therefore avers, taking into consideration service dates, that the cause of action would have accrued on or around 23 January 2016.

19. Following the Defendant’s breach of the Agreement, the debt was subject to a legal assignment dated 21 July 2016 from the Assignor to the Claimant pursuant to section 136 of the Law of Property Act 1925. Reconstituted copies of the Notices of Assignment that were sent on behalf of the Claimant and Assignor are exhibited hereto at “ID8”.

20. The Claimant allocated the reference of 236044123 to this matter. The balance on assignment was £3,432.70.

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

22. The Claimant’s Solicitors were changed to Overdales Solicitors on 8 March 2021.

23. As the Defendant failed to any pre legal correspondence sent by the Claimant’s solicitors, legal proceedings were issued on 8 January 2021 and were deemed served on 13 January 2021.

24. The total amount claimed is £7,858.13. A breakdown of how the balance is made up is set out below:

Account Claimant’s Reference Balance at issue Interest added upon issue

Account 1 230829123 £3,843.34 £307.47

Account 2 236044123 £3,432.70 £274.62

THE DEFENDANT’S DEFENCE

25. The Defence relies entirely on technicalities and the Defendant denies entering into the Agreements.

REPLY TO DEFENCE

26. The Claimant avers that the Defendant’s Defence is without merit. Paragraphs 3 to 23 above are herein repeated. The Claimant believes that the Defendant’s Defence is without merit and untenable. The Defendant has clearly had the use and the benefit of the Agreements that has resulted in the accrual of each debt. The Defendant is put to strict proof to substantiate her Defence.

27. The Defendant started corresponding with the Claimant’s solicitor after the Defence was filed. Copies of the correspondence exchanged between the Defendant and the Claimant’s Solicitors is exhibited hereto at “ID9”.

28. The Claimant further 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 solicitor’s pre-action communications; and

b) raised a tenuous Defence.

29. The Claimant’s intention throughout its attempt to communicate with the Defendant was to offer either an affordable repayment plan, and resolve the Defendant’s dispute. Had the Defendant contacted the Claimant to explain her reason for non-payment, the Claimant’s process is to place the accounts on hold and conduct an investigation with the Assignors. Should the Defendant’s disputes have been valid, the Claimant would have closed the accounts.

30. The Claimant avers that the Defendant was given sufficient opportunities to repay the arrears and enter into an affordable repayment arrangement. Had the Defendant made contact with the Claimant, it would have negated the need to instruct solicitors, resulting in the issue of legal proceedings to recover the outstanding balances of the debts.

31. Under Practice Direction 7C 1.4 (3A) the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims to be issued by the County Court Business Centre (‘Production Centre’).

32. The Claimant herein repeats paragraphs 8 to 10 and 16 to 18 of this statement in relation to the Defendant’s assertions regarding the default notices under the Consumer Credit Act 1974.

33. The Claimant further avers that Notices of Assignment were served on the Defendant’s current address and there is no record of any mail being returned by Royal Mail.

34. It is the Claimant’s position that a copy of the Deed of Assignment does not need to be provided as this is a confidential agreement between the Assignor and the Claimant which contains information that the Defendant is not privy to.

35. The Defendant has made reference to the comments of Lord Denning in Van Lynn-v-Pelias. However, the Claimant does not believe them to apply for the following reasons;

i. First, the comments of Lord Denning were merely obiter which was a passing remarks made as an aside to a Judgment on an entirely different question; and

ii. Lord Denning went on to say that the purpose of such disclosure was to satisfy the debtor that the new owner of the debt could properly release the debtor from further obligation to pay. In this case, the Claimant avers that the question does not arise because the Assignor as well as the Claimant gave notice of assignment confirming that payment must now be made to the Claimant.

36. The Claimant further avers that both the Claimant and Assignor had given notice of assignment and therefore the Defendant could satisfy herself that the Claimant in the capacity of an assignee could give good discharge of the debts.

37. The Claimant submits that the Defendant has been aware of her liability for the outstanding balances prior to issuing proceedings by way of numerous attempts of contact made by the Claimant.

38. The evidence exhibited to this statement clearly and strongly evidences the Defendant is liable for the outstanding balance.

39. The Claimant submits that the Defendant has failed to evidence and substantiate why she did not pay the outstanding balance. The Defendant is therefore put to strict proof to prove the same.

40. As evidenced in this witness statement the Defendant has not advanced or made any valid submissions as to why he is not liable. The Defendant’s Defence is therefore untenable and without merit.

41. As the Defendant has failed to address the Particulars of Claim, the Claimant requests that the Court exercise its power to strike out the Defence on the basis that, in accordance with CPR 3.4(2)

(a) the Defendant’s statement discloses no reasonable grounds for defending a claim.

ACCOUNT 2

13. Account 2 relates to a credit agreement dated on or around 22 July 2013 (“the Agreement”) between the Defendant and Progressive Credit Limited in relation to an Aqua Credit Card with the account number of 3915150004088123. In 2014, Progressive Credit Limited changed names to NewDay Ltd the 2nd Alleged Assignor. It is denied that a reconstituted copy of a credit agreement exhibited by the Claimant at “ID5” is an compliant with the requirements of the Consumer Credit Act 1974. The Claimant is put to strict proof to provide a signed copy of the agreement upon which they rely.

14. It is not denied that the 2nd Alleged Assignor has provided copies of statements which evidences how the Defendant accrued the debt and this is exhibited by the Claimant at at “ID6”.

15. It is not disputed that the Defendant had the use and benefit of the Agreement. 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 Defendant avers that as a result of the 2nd Alleged Assignor’s irresponsible lending tactics, the Defendant was unable to maintain payments in line with the Terms and Conditions of the Agreement resulting in the Defendant breaching the Agreement by failing to maintain the agreed repayments.

It is not disputed that the 2nd Alleged Assignor has confirmed that the Defendant last made a payment on 5 October 2015 in the sum of £90.46 and this is evidenced on the statement dated 19 October 2015.

16. It is denied that 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 Default Notice dated 1 January 2016 that was sent to the Defendant by the 2nd Alleged Assignor. No extra time was given to make payment and no offer of help to make situation better. The Defendant avers that the 2nd Alleged Assignor just kept adding on fees and interest as part of their irresponsible lending tactics.

17. It is denied that the date at which the Default Notice expired is the date upon which the cause of action accrued. A Default Notice was served on the Defendant dated 1 January 2016, which required the Defendant to remedy the arrears by 22 January 2016. The Claimant is put to strict proof provide proof that a valid Default notice was served in accordance with CCA s. 87 & 88 (1).

18. It is disputed that the cause of action would have accrued on or around 23 January 2016.

19. It is disputed that the benefit of the Agreement was subject to a legal assignment dated 21 July 2016 pursuant to Section 136 of the Law of Property Act 1925 from the 2nd Alleged Assignor to the Claimant due to the constraints of:

1. Section 44 of the Companies Act 2006;

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

3. Section 136 of the Law of Property Act 1925; and;

4. Section 196 of the Law of Property Act 1925.The Claimant has been 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 but has failed to provide any evidence of Legal 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

See the analysis of Judge Hamblen J in Jones v Link Financial Ltd | [2013] 1 WLR 693:

9. The judge found that the assignment was a valid legal assignment under Section 136 of the Law of Property Act 1925. He found that the three conditions for the validity of such an assignment were 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 denied that reconstituted copies of the Notices of Assignment were sent on behalf of the Claimant and Assignor. It is denied that the documents exhibited by the Claimant at “ID8” were ever received by the Defendant.

The Claimant is put to strict proof to show that Notice of Assignment has been served in compliance with Section 196 of the Law of Property Act 1925, by registered mail.

The Claimant has declined to provide any proof of Legal Assignment in the form of a valid Deed of Assignment despite numerous requests including a formal CPR-18 request. See (‘AMS1’). These requests have all be refused by the Claimant

20. It is not disputed that the Claimant allocated the reference of 236044123 to this matter. It is disputed that the balance on Alleged Assignment was £3,432.70.

21. It is denied that the Claimant the correct entity to bring this Claim and the Defendant remains indebted to the Claimant. The Defendant has no agreement with the claimant and despite numerous requests, the Claimant has been unable or unwilling to supply evidence that any of the Three elements of LEGAL Assignment have been complied with. The Defendant avers that the Claimant is not compliant with a single element of Legal 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 (by registered mail)

22. It is not disputed that the claimant’s Solicitors were changed to Overdales Solicitors on 8 March 2021.

23. It is disputed that the Defendant failed to respond to any pre legal correspondence sent by the Claimant’s solicitors. It is a matter of record that legal proceedings were issued on 8 January 2021 and were deemed served on 13 January 2021.

24. It is disputed that the Claimant is entitled or has any Legal Standing to claim the total amount of £7,858.13. A breakdown of how the balance is made up is set out below is disputed both in part and in whole:

Account Claimant’s Reference Balance at issue Interest added upon issue

Account 1 230829123 £3,843.34 £307.47

Account 2 2 236044123 £3,432.70 £274.62.

THE DEFENDANT’S DEFENCE

25. It is denied that the Defence relies entirely on technicalities and the Defendant denies entering into the Agreements. The Defendant’s defence relies on points of LAW that cannot be described accurately as technicalities. The Defendant denies ever having entered into an agreement with the Claimant.

REPLY TO DEFENCE

26. It is denied that the Defendant’s Defence is without merit. It is denied that the Defendant’s Defence is without merit and untenable. It is not denied that the Defendant has clearly had the use and the benefit of the Agreements that has resulted in the accrual of each debt as a result of the irresponsible lending practices of the 1st and 2nd Alleged Assignors.

27. It is not denied that the Defendant started corresponding with the Claimant’s solicitor after the Defence was filed. The Defendant sent three emails asking to see the Deed Of Assignment which is a requirement under Section 136 of the Law of Property Act 1925. The Claimant has been unable or unwilling to provide any Deed for either of the Agreements claimed. Copies of the correspondence exchanged between the Defendant and the Claimant’s Solicitors is exhibited by the Claimant at “ID9”. This communication clearly demonstrates that the Defendant has requested the Deed of Assignments the Claimant are relying on in this matter. The refusal by the Claimant to provide even a redacted copy of the documents demonstrate that they have no Legal Assignment and should not have brought this claim before the court.

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."

28. 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 solicitor’s pre-action communications; and

b) raised a tenuous Defence.

The Defendant avers that it is the Claimant who is in breach of Civil Procedure Rules by failing to provide any evidence of their Legal Standing to bring this claim.

29. 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.

30. It is denied that the Defendant was given sufficient opportunities to repay the arrears and enter into an affordable repayment arrangement. The Defendant avers that the Claimant is a debt purchase company who purchase alleged debts in bulk on an equitable basis without following any of the requirements of the Law of Property Act 1925 that would make the assignment a Legal Assignment.

31. It is not denied that under Practice Direction 7C 1.4 (3A) the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims to be issued by the County Court Business Centre (‘Production Centre’). This does not negate the requirement for the Claimant to establish their Legal Standing to bring a claim. The Claimant has failed to demonstrate their legal standing.

32. Is is noted that the Claimant repeats paragraphs 8 to 10 and 16 to 18 of this statement in relation to the Defendant’s assertions regarding the default notices under the Consumer Credit Act 1974. The Defendant avers that the Claimant has not contract or agreement with the Defendant and cannot seek to rely on the contract of a third party without a valid LEGAL Assignment.

33. It is denied that that Notices of Assignment were served on the Defendant’s current address and there is no record of any mail being returned by Royal Mail. Section 136 of the Law of Property Act 1925 requires that notice be given to the debtor and Section 196 requires that to be by registered mail. The Claimant is put to strict proof to demonstrate compliance with both Section 136 and Section 196 of the Law of Property Act 1925.

34. It is disputed that a copy of the Deed of Assignment does not need to be provided as this is a confidential agreement between the Assignor and the Claimant which contains information that the Defendant is not privy to. The Claimant could redact out sensitive information to provide evidence of assignment. The Defendant avers that the Claimant is refusing to provide the Deed of Assignment required under Section 136 of the Law of Property Act because it would demonstrate that the Claimant is not compliant with the Law of Property Act 1925 and has no Legal Standing to bring this claim.

35. It is not denied that the Defendant has made reference to the comments of Lord Denning in Van Lynn-v-Pelias.

It is denied that they do not apply for the following reasons;

i. First, the comments of Lord Denning were merely obiter which was a passing remarks made as an aside to a Judgment on an entirely different question; and

ii. Lord Denning went on to say that the purpose of such disclosure was to satisfy the debtor that the new owner of the debt could properly release the debtor from further obligation to pay.

It is denied that the question does not arise because the Assignor as well as the Claimant gave notice of assignment.

See; Promontoria (Oak) Limited v Emanuel [2020] EWHC 104 (Ch) - Marcus Smith J concluded that the decision of the recorder at first instance to permit the claimant’s reliance on the redacted copy deed was sufficiently flawed as to require setting aside;

36.It is disputed that both the Claimant and Assignor had given notice of assignment. It is disputed that the Defendant could satisfy herself that the Claimant in the capacity of an assignee could give good discharge of the debts.

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."

37. It is disputed that the Defendant has been aware of her liability for the

outstanding balances prior to issuing proceedings by way of numerous attempts of contact made by the Claimant. Nether the 1st or the 2nd Alleged Assignor have been in contact with the Defendant since 2015/2016.

38. It is denied that the alleged evidence exhibited by the Claimant clearly and strongly evidences the Defendant is liable for the outstanding balance. The Claimant has failed to provide any formal agreement between the Defendant and the Claimant or any evidence of a valid LEGAL assignment

.

39. It is denied that the Defendant has failed to evidence and substantiate why she did not pay the outstanding balance.

The Defendant avers that the both Agreements was entered into as a result of irresponsible lending practices and in breach of the Consumer Credit Act 197 Section 25(2B) and are currently the subject of an irresponsible lending complaint with the Alleged Assignors pending a formal investigation by the Financial Ombudsman.

40. It is denied that the Defendant has not advanced or made any valid submissions as to why he is not liable. It is denied that the Defendant’s Defence is therefore untenable and without merit.

The Defendant avers it is the Claimant’s Claim that is without merit as they have failed to demonstrate their Legal standing in this matter and seek to rely solely on hearsay evidence.

41. It is denied that the Defendant has failed to address the Particulars of Claim. The Defendant respectfully requests that the court exercise it’s power and dismiss the Claimant’s claim in it’s entirety for breaches of CPR, including but not limited to CPR-18:

The Claimant has declined to provide any proof of Legal Assignment in the form of a valid Deed of Assignment despite numerous requests including a formal CPR-18 request. See (‘AMS1’). These requests have all be refused by the Claimant.

ORDER SOUGHT

42. The Claimant requests that the Judgment is granted in favour of the Claimant for the sum of £7,276.04, plus:

a) Interest of the sum of £582.09 at a rate of 8%;

b) Issue fee of £410.00;

c) Fixed commencement costs in the sum of £100.00;

d) Hearing fee of £335.00 (yet to be paid); 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.

ORDER SOUGHT

42. As the Claimant basis their claim entirely on hearsay evidence and has failed to provide, despite repeated requests, any evidence of their Legal Standing, 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 22nd day of April 2021

Signed:

Name: [WITNESS NAME]

Position: Senior Complex Litigation Paralegal

Overdales Solicitors

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 27nd day of April 2021

Signed:

Name: [NAME OF WITNESS]