Lowell Portfolio I Ltd V. GarlickFiend

[MIKE770]

requested help for you

[GarlickFiend]

Thanks Mike

[Amethyst]

Just having a read, apologies for missing you earlier xx

[Amethyst]

DEFENCE

1. I received the claim [Claim Number] from the Northampton County Court Business Centre on 13^th February 2018
2. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
3. This claim appears to be for a credit agreement between Orange and myself regulated under the Consumer Credit Act 1974.
4. The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.
5. The Claimant’s Particulars of Claim fail to state when the agreement was entered into and I do not recognise the account reference given. I have had a mobile telephone from Orange in the past but am unaware of any issues related to it. Orange changed to EE in 2014, I believe, so it would have been before then.
6. It is my contention that the alleged debt is statute barred by virtue of Section 5 of the Limitations Act 1980 in that no payment or acknowledgment has been made for over 6 years.
7. The Claimants statement of case states that the account was assigned from Orange to Lowell Portfolio I Ltd on 27th August 2014. The Defendant does not recall receiving notice of this assignment.
8. It is denied that Orange served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
9. In order to find out more information I, on the 15^th February 2018, sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Lowell’s Solicitors. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.
10. Neither the Claimant nor their Solicitors have sent any of these documents to me.
11. On the 15^th February 2018 I sent a formal request for a copy of the original agreement to Lowell Portfolio I Ltd pursuant to sections 77-79 of the Consumer Credit Act 1974 along with the statutory £1 fee.
12. The Claimant has failed to comply with my request and by virtue of s77 (4) / s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.
13. The Claimant has has responded to my request stating that the agreement was for a telecommunications matter and is not regulated. However their statement of case relies on an agreement between myself and Orange and as such evidence of such agreement and the terms is required.
14. The Claimant also stated that they have requested statements from Orange and will contact me when a response is received. This would appear to mean that the Claimant has not had sight of any evidence relating to their claim, the agreement or how the sum claimed has been calculated.
15. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.
16. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.
17. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.
18. It is denied that the Claimant is entitled to the relief as claimed or at all.

[Amethyst]

Bold bits edits xxx

[GarlickFiend]

Thank you, thank you, thank you Amethyst! That is a huge help! Very much appreciated indeed. I shall file my response online now. xx

[Amethyst]

No worries, apologies for not getting to you earlier xxx

If MCOL is playing silly buggers you can use email to submit


Claim responses & directions:

ccbcaq@hmcts.gsi.gov.uk

Subject: DEFENCE - Claim No. XXXXXX - Lowell v Garlick

[GarlickFiend]

Hi,

I filed my response online, and have since received the following Notice of Proposed Allocation to the Small Claims Track:

Important Notice
If you do not comply with this notice the court will make such orders as appears to be appropriate. This could include striking out the claim or entering judgement.

TAKE NOTICE THAT

1. This is now a defended claim.
The defendant has filed a defence.

2. It appears that this case is suitable for allocation to the small claims track.
If you believe that this track is not the appropriate track for the claim, you must complete box C1 on the Small Claims Directions Questionnaire (Form N180) and explain why.

3. You must by 8 May 2018 complete the Small Claims Directions Questionnaire (Form N180) and file it with the court office
[CCBC Address]
and serve copies on all other parties.

Can anyone help with this please? This wasn't the result I was expecting and I'm not sure what to do now, other than fill out the questionnaire...

[Amethyst]

Yep indeed, it's a case of filling in the questionnaire and sending it back to the court, with a copy to the other side. Theres some help here http://legalbeagles.info/forums/foru...l-claims-track on filling it in.

What were you expecting if you don't mind me asking ? This is just part of the process, and no one at court has yet even so much as read the claim or your defence.

[GarlickFiend]

Hi Amethyst, thanks for your reply, I'll get on with filling it out and sending it to the relevant places. :-)

I didn't expect it, as on two previous occasions when I've had to send in a defence of claim, once I'd done that, I never heard anything else back. I guess at that time, they had no ability to produce the required docs so didn't proceed. I saw "small claims" and thought that that meant that they were going down a different route as they disagree that the claim is covered. Sorry, I'll try and panic less!

[Amethyst]

It's fine, it just means the claimant has responded to the court and said they want to proceed rather than let it go to a stay ( which is likely what your other claims are, stayed, which potentially means they could pick them up later if they find the docs so might be worth looking at those, how long theyve been stayed for and so on). Once both sides DQ's are filed and served the court will transfer the case to your local court and you'll receive further directions & a court date. This will give the date that the hearing fee needs to be paid by the other side, and when you shoudl exchange witness statements. They should provide their documents with the witness statement so it's really that point you can assess whether to proceed into court or negotiate settlement.

[GarlickFiend]

It's fine, it just means the claimant has responded to the court and said they want to proceed rather than let it go to a stay ( which is likely what your other claims are, stayed, which potentially means they could pick them up later if they find the docs so might be worth looking at those, how long theyve been stayed for and so on). Once both sides DQ's are filed and served the court will transfer the case to your local court and you'll receive further directions & a court date. This will give the date that the hearing fee needs to be paid by the other side, and when you shoudl exchange witness statements. They should provide their documents with the witness statement so it's really that point you can assess whether to proceed into court or negotiate settlement.

So I had an email from the mediation service as below. What is likely to happen with this? I was hoping to get the debt cancelled as they haven't provided evidence that I own the debt or signed up to it. They have said that it doesn't fall under CCA law and I feel like I'm heading into the unknown, unprepared!:

Small Claims Telephone Mediation Service
Tel: 0300 123 4593 - Email: scmreferrals@hmcts.gsi.gov.uk

Claim Number: XXXXXXXX

Parties: LOWELL v GarlickFiend

The above parties have all filed a Directions Questionnaire (N180) and have all requested mediation.

Provisional Appointment Time & Date

A telephone mediation session of up to one hour is available to you Monday to Friday between 9:30 and 13:30, which needs to take place within 21 days of this email.

Please note that this is not a confirmed appointment and you will receive a further letter/email to advise if mediation is going ahead.

Mediation can only be arranged if we are able to contact all parties to verbally complete the mediation criteria, email acceptance from you does not mean the appointment will be booked.

We will try to call you within the next 8 days, calls will come from a private/withheld number. If you would like to increase your chance of securing an appointment please call us as soon as possible on 0300 123 4593.


If we are able to secure a mediation appointment, we will send you confirmation.

If you do not receive an email, or letter, confirming the appointment and a specific 30-minute time slot, the appointment will not be taking place.

Owing to a high level of referrals at the present time, mediation appointments are limited. If we are unable to contact you before the appointments for this date are booked; your case will be transferred to a court to be listed for allocation.


If you want a 3^rd party to mediate on your behalf please complete and return the form at attached to authorise their involvement, please also ensure that you forward the information about mediation to them. Alternatively you can call 0300 123 4593 to give verbal authorisation.

(If you want to be contacted on a different number to the one you stated on your Directions Questionnaire, please contact the Mediation Team to provide the relevant number)

Mediation appointments are limited and can only be re-arranged under exceptional circumstances

Mediation Requirements

Please read the following 3 statements:

	Yes	No
1. For mediation to be successful there needs to be some flexibility from all parties and a willingness to listen and consider each other’s positions. Can you agree to this?
2. I can confirm that I have enough information about the claim to allow me to enter into negotiations and that I do not require any further evidence from the other party before I can mediate
3. I am available to mediate on one of the following days (You must tick at least 1 of the following, you may tick more than 1 if applicable)
I am available between 9:30 & 13:30 on a Monday
I am available between 9:30 & 13:30 on a Tuesday
I am available between 9:30 & 13:30 on a Wednesday
I am available between 9:30 & 13:30 on a Thursday
I am available between 9:30 & 13:30 on a Friday

Mediation is only available to you if you can answer YES to all 3 statements above. If you cannot answer YES to each of the 3 statements, mediation is not suitable for your case.
If you have answered yes to all 3 questions and you would like to try mediation, please also complete the following table and return the email to scmreferrals@hmcts.gsi.gov.uk. (You may have to click on reply before you can complete the boxes above and below)

Full name of person that will be mediating: (If you want a 3rd party to mediate on your behalf, please complete the attached form or call the Mediation Team on 0300 123 4593 in order to authorise their involvement and forward this email to them)

The telephone number the mediator needs to call: (A direct number is preferable, mobile numbers are acceptable)

Your email address:

Please contact us as soon as possible as mediation appointments are limited and in high demand. If we do not receive a response from you, we will try to contact you by telephone. If we are unable to contact you, we will be unable to provide an appointment and your case will be transferred to a local court to be listed for a hearing.
The information below explains how mediation is carried out. If you are unsure whether or not mediation is suitable for you after reading the information above and below, please call the Mediation Team on 0300 123 4593 or reply to this email with your query.


How is Mediation Carried Out?

You will be contacted by a Court mediator who is trained to help people settle their disputes. The mediator acts as a ‘go between’ to help both parties try to find a resolution. They do not make decisions, offer legal advice or adjudicate the dispute. The mediators therefore do not need to see any supporting evidence prior to mediation.

Mediation is done via telephone but it is not a conference call. The mediator will speak to one party, discuss the case and how they are willing to resolve the matter, then hang up, call the other party and do the same. The mediator will continue to go back & forth between the parties within the session.

If you and the other party come to an agreement, the mediator will draw up a Settlement Agreement confirming what is agreed. The mediator will read the Settlement Agreement to you and it becomes legally binding from the moment you verbally agree to it. Copies of the Settlement Agreement will then be sent to all parties and the Court, this concludes the case. Should the other party breach the terms of the agreement, you can apply to the court to have the case struck out.

If no agreement is made within the session, the mediator will end the appointment and the case will proceed to a hearing to be resolved by a District Judge. Anything mentioned at mediation is confidential and cannot be referred to at a court hearing.


Important Preparation if you chose to mediate

Please find below some guidance notes that will help you prepare for your mediation appointment. It is important that you read this fully prior to your appointment.

1. You must participate in mediation in good faith, with the intent to reach an agreement. If you attend with no intention of negotiating or compromising, the mediator will terminate the session. You must be prepared and willing to put your points forward, and to listen to the points raised by the other party.
Top Tip: Spend a few moments making a list of the strengths & weaknesses of your case and think about how & where you are able to compromise.

2. The mediator may call from a blocked or unknown telephone number.
Top Tip: Make sure the number you provided for the mediation session can accept calls from unknown or blocked numbers.

3. If you want a 3^rd party to mediate on your behalf, you must contact the Mediation Team by phone or email to authorise their involvement.
Top Tip: The 3^rd party must be fully aware of the facts of the case & have a good understanding of how far you are willing to compromise. You will be legally bound to any agreements the 3^rd party makes.

4. Your mediation appointment is limited to up to one hour. You must be free and by the phone for the full session so that the mediator can contact you.
Top Tip: Make sure you are in a suitable location for the appointment that is free from distractions. The mediator will cancel the appointment immediately if you are driving even if you are using a hands-free device.

5. Everything mentioned at mediation is confidential. The mediator will only pass information to the other party with your authorisation. You cannot record the mediation session. If mediation fails & a hearing is required, you cannot refer to anything discussed at mediation during the hearing.

6. If you do not answer the phone or respond to any messages left by the mediator within 10 minutes, the mediator will cancel the appointment.
Top Tip: Have you provided the most suitable telephone number for your appointment? If you are mediating on behalf of a company, have you provided a direct line?

7. The mediator speaks to both parties separately.



If after reading the above you are still unsure whether or not mediation is suitable, or if you have any other queries, please call the Mediation Team on the number below.


Small Claims Mediation Service Contact Details

Tel: 0300 123 4593
Email: scmreferrals@hmcts.gsi.gov.uk
Post: HMCTS, PO Box 8793, Leicester, LE1 8BN

[Amethyst]

Have they told you when the account was defaulted/terminated ? When it was opened ? Sent you any documents at all or just that letter in response to the CCA request saying it's not applicable ?

Does this show on your credit file at all on Noddle btw ? worth checking what the date of default is down as on there.