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**DISCONTINUED** Lowell County Court Business Centre Claim

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  • #61
    Re: Lowell County Court Business Centre Claim

    @R0b

    regarding the lastest order that made made that you couldn't quite understand.
    ive re-attached it with the attachments that came with the order.

    i originally thought they were both copies Lowell had sent me previously. But one is a letter to the courts.

    Comment


    • #62
      Re: Lowell County Court Business Centre Claim

      ....
      Attached Files

      Comment


      • #63
        Re: Lowell County Court Business Centre Claim

        I'll make some comments on your defence tomorrow, but I think the section about the judge's order could be beefed up quite a bit.

        I am reading Lowell's letter and it seems to say the order was drawn up on 30 March yet the order was dated 20 March. Maybe it's because it's late but I am not entirely sure what they mean by that - If they received it on 11 April then to my mind there should have been an application for extension.

        What date did you receive your order dated 20 March from the court? was it on the 11 April or earlier than that? the reason I ask is that maybe Lowell is trying to pull a fast one or they really did receive it on the 11th April, although the office receiving the order from the court and the file handler actioning it are two different things

        Also the latest order states the letter dated 12 April 'with attachments' what attachments were they?
        If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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        LEGAL DISCLAIMER
        Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

        Comment


        • #64
          Re: Lowell County Court Business Centre Claim

          Ideal!im feeling confident about this! I've just got to work [MENTION=71570]R0b[/MENTION] so I'll look into the paper work I have at lunch and post up what I find regarding the attachments

          Comment


          • #65
            Re: Lowell County Court Business Centre Claim

            Great, i'll likely post up some comments later today once I have had time to look at it.

            Can you confirm when you received the Order dated 20 March, did you receive it around the 11 or earlier?
            If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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            LEGAL DISCLAIMER
            Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

            Comment


            • #66
              Re: Lowell County Court Business Centre Claim

              I received it on the 31st of march and sent a letter to the courts dated 11th April (which allows 3 days for it to be reviewed by a judge) asking for it to be struck out

              Comment


              • #67
                Re: Lowell County Court Business Centre Claim

                Hi Josh,

                As I suggested earlier, I think the part of your defence around the DJ’s order could be strengthened and perhaps the use of sub-headings will help. My comments are below but feel free to adapt to your defence as is necessary and are in no particular order. There is probably much more you can add as a defence, but the below is a starting point to incorporate into your defence. I will try and think of anything else that could help assist your defence in the meantime.

                1. Lowell has failed to comply with a peremptory order made by District Judge [name] dated [date]. More specifically, the order stated that [insert relevant part of order]

                2. Lowell then wrote to the Court on 11 April alleging that it only received the order made by DJ [name] on the same day and that it could therefore not comply with the Order. It is common ground that a party who is not being able to comply with an unless order, the said party must make an application for relief from sanctions and/or an extension of time. You should question why Lowell had received the order on 11 April when you received the order on 31 March, some 11 days prior to them. On balance, it is more likely than not that Lowell did receive the order earlier than 11 April but chose not to act promptly.

                3. An attempt was made by Lowell to comply with the order and you received a letter dated [date] enclosing two letters dated [date] and [date] respectively purporting to contain a notice of assignment. Both letters are not in any way a notice of assignment and are simply letters seeking payment of a Vodafone debt to Lowell. The letters do not suggest that the alleged debt has been assigned to Lowell as required by law. Lowell also did not provide as required by the order, a copy of the agreement (including the applicable terms at the time of inception) or the default notice served on you.

                4. Lowell has failed to comply with the order by the relevant date (and continues to be in breach) and having made no such application for relief from sanctions, the order must be given effect and the claim is therefore struck out and dismissed.

                5. Despite the failure to comply, District Judge [name] made a further order, amongst other things, of fixing a date for trial even though Lowell continue to be in breach of the peremptory order. The further order made by DJ [name] was a serious procedural irregularity which was unjust and unfairly prejudices the you in these proceedings. Where an unless order is made, the relevant sanctions contained within the order shall automatically apply upon non-compliance. In addition, no application or hearing date for relief from sanctions has been made and without such hearing, the strike out and dismissal of the claim remains.

                6. Lowell may argue that the Consumer Credit Act 1974 does not apply to mobile phone contracts, therefore a default notice is not applicable and it would be impossible for Lowell to comply with the order, however you should refute this. You should rely a copy of the terms and conditions on Vodafone’s website which confirms that it has previously offered consumer regulated contracts.

                7. Furthermore, the function of the particulars of claim is not only to put forward the material facts that it seeks to rely upon, but also enable the Defendant to understand the case he has to meet. Lowell has pleaded that a default notice was served on you and so it should be deemed as a fact that such a notice was served. Lowell cannot now alter its position to suit its claim and, to do so amounts to an abuse of process.

                6. In the circumstances, having failed to comply with the order, Lowell is debarred from pursuing its claim.

                As I said above, there is maybe some more we can add to it and the relevant CPR provisions can be added surrounding automatic sanctions and failing to comply (I think its CPR 3 but will need to double check). There is probably further argument about the notice of assignment too, in that where no notice of assignment is given, there will be no valid legal assignment and Lowell has no standing to bring a claim in its own name - it must be brought in the name of the previous creditor as Lowell is only the equitable creditor. Only the Legal creditor is entitled to bring it, so Vodafone would need to bring the claim and add Lowell as a second party.
                If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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                LEGAL DISCLAIMER
                Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                Comment


                • #68
                  Re: Lowell County Court Business Centre Claim

                  Wow, I didn't realise how much I had to go on until you'd made the point above!
                  ill amend my defence tomorrow evening with the above included. Is there anything I should take out as it's simply a template from my first defence.
                  I'm feeling much more confident about this now even if it does go to court!
                  Thanks again rob I couldn't of got this far without your advice. Hopefully we can get this in the bag on my defence alone!

                  Comment


                  • #69
                    Re: Lowell County Court Business Centre Claim

                    I don't think the inadequate pleadings need to be in there because you already raised that issue and that came about through the unless order.

                    I think further sub-headings might help assist the court too. So for example under "The Claim" you can put further sub-headings underneath it for example "The Claimant has no right to sue as the Defendant did not receive an express notice of assignment pursuant to the Law of Property Act 1925". The same could apply to the unless order section, you might want to have some sort of heading that says the claimant is debarred from continuing its claim as the case was struck out and dismissed for failure to comply with a previous peremptory order.

                    Paragraphs 13 and 16 can be removed as they are irrelevant now since the last defence submitted.
                    If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
                    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                    LEGAL DISCLAIMER
                    Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                    Comment


                    • #70
                      Re: Lowell County Court Business Centre Claim

                      Hi @R0b


                      So my deadline to file my amended defence is Friday.


                      Please find attached my amended defence with your above mentioned added in.


                      Everything that in [( )] I will amend before sending and will also add in Vodaphones T&C's Regarding .5 at the start should i now take this out as its mentioned elsewhere?


                      The sub headings I'm not really to sure about! but added in the bits i think are relevant.

                      Also at some points i have made the mistake of referring to myself as a solicitor/the defendant which is changing between third and first person which is more appropriate?


                      Can you think of anything else i can put in there?


                      Many Thanks,
                      Josh
                      Attached Files
                      Last edited by joshb; 4th May 2017, 08:04:AM.

                      Comment


                      • #71
                        Re: Lowell County Court Business Centre Claim

                        I'll take a further look today, possibly lunch time or later this evening and get back to you with comments.
                        If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
                        - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                        LEGAL DISCLAIMER
                        Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                        Comment


                        • #72
                          Re: Lowell County Court Business Centre Claim

                          That's great, I've spoke to the courts and can file by email before 4pm tomorrow

                          Comment


                          • #73
                            Re: Lowell County Court Business Centre Claim

                            Hi [MENTION=71570]R0b[/MENTION] have you had chance to go over my defence? I'd just like to rectify anything you pick up tonight

                            Comment


                            • #74
                              Re: Lowell County Court Business Centre Claim

                              Looking at it now for you
                              If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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                              LEGAL DISCLAIMER
                              Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                              Comment


                              • #75
                                Re: Lowell County Court Business Centre Claim

                                Perfect, thanks rob

                                Comment

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