Directions Questionaire (small Claims Track)

[Jametch]

Hi All,

Still battling against Lowell/Bryan Ca0rter Solicitors! (on behalf of my mother)

I have received a Directions Questionnaire(Small Claims Track) and one of the first questions is whether or not I agree with it being allocated to the Small Claims Mediation Service.

A simple yes or no, but I'm not sure which one I should go for. I never received a copy of the documents they have (even though I did request them) and am unsure how each answer would affect my potential defence/options.

Any thoughts?

Kind Regards

[Celestine]

Re: Directions Questionaire (small Claims Track)

It is customary to accept the Mediation option...though it rarely comes to anything.

So presumably you have already defended this claim? What wording did you use?

[Jametch]

Re: Directions Questionaire (small Claims Track)

The previous defence was that it was statute barred and on that reason it was not our intention to pay. Or words to that effect.

It was over 6 years ago! They didn't respond to my crp/cpr? requests stating that it would be most probably put into the small claims court, even though I requested twice for each (on the advice of the forums on here) and I never got my £1 P/O back :P) so the crp/cpr? requests did not apply.

I just don't want my mum being stuck with court fees as well as the money they are trying to 'recover'.

Thank You

[Celestine]

Re: Directions Questionaire (small Claims Track)

The CPR requests should not have cost anything. Brian Carter are notorious for denying CPR 31.14 and refusing defence extensions. My feeling is that this is an abuse of their duties towards your mother as a Litigant in Person. Complain to the Legal Ombudsman http://www.sra.org.uk/consumers/prob...solicitor.page

I assume the £1 fee was for a CCA request for a copy of the agreement? If they have not complied with that then they are in breach of s.78 CCA and the debt cannot be enforced.

So this needs to be robustly defended on s.5 Limitation Act 1980 AND Breach of s.78 CCA.

How much is their claim for?

[Jametch]

Re: Directions Questionaire (small Claims Track)

Hi

There claim is for £1166.89 for a catalogue.

Am I being fool hardy in thinking I can take the information I have gathered and the above and present this as a defence?

I also looked into my partners credit report recently as I remember he had a run in with Lowell some years back now, and I found that Lowell had put a defaulted debt on the report (upon purchasing it from another company) This debt was also six years old or more.

Do you think they would have done the same thing here and try to argue its not 6 years old as my mother has recently 'defaulted'?

Thank You

[panther12]

Re: Directions Questionaire (small Claims Track)

You could do with knowing for definite the last date of payment and what the terms say about missed payments. My understanding is that if the terms, for e.g, say that after two missed payments a default will (or may) be issued and the full balance becomes due, then the date of that missed payment is the cause of action and the limitation period starts from that date, regardless of whether or not they have actually issued a default. The date of the default registered on your credit file should be no more than 6 months from the cause of action date. If they try to argue that the limitation period runs from the date of default, then they are being very silly and an act of desperation to get you to pay.

[FlamingParrot]

Re: Directions Questionaire (small Claims Track)

I have received a Directions Questionnaire(Small Claims Track) and one of the first questions is whether or not I agree with it being allocated to the Small Claims Mediation Service.

A simple yes or no, but I'm not sure which one I should go for. I never received a copy of the documents they have (even though I did request them) and am unsure how each answer would affect my potential defence/options.

The previous defence was that it was statute barred and on that reason it was not our intention to pay. Or words to that effect.

There claim is for £1166.89 for a catalogue.

Am I being fool hardy in thinking I can take the information I have gathered and the above and present this as a defence?

From the above, a defence has already been submitted and the case has been allocated, so you wouldn't be presenting another defence. Defences can be amended but it doesn't look like there's any reason to do so in this case, a SBd defence has been submitted and the info you have suggests that's still the case. SBd is an absolute defence and the onus would be on the claimant to PROVE that it isn't, by showing payments or written acknowledgment in the past 6 years. Default dates on credit files mean nothing for the purposes of limitation. :thumb:

[FlamingParrot]

Re: Directions Questionaire (small Claims Track)

I also looked into my partners credit report recently as I remember he had a run in with Lowell some years back now, and I found that Lowell had put a defaulted debt on the report (upon purchasing it from another company) This debt was also six years old or more.

Do you think they would have done the same thing here and try to argue its not 6 years old as my mother has recently 'defaulted'?

You could do with knowing for definite the last date of payment and what the terms say about missed payments. My understanding is that if the terms, for e.g, say that after two missed payments a default will (or may) be issued and the full balance becomes due, then the date of that missed payment is the cause of action and the limitation period starts from that date, regardless of whether or not they have actually issued a default. The date of the default registered on your credit file should be no more than 6 months from the cause of action date. If they try to argue that the limitation period runs from the date of default, then they are being very silly and an act of desperation to get you to pay.

Default dates on credit files have no bearing on limitation periods. A lot of people make payments after defaulting, for example, through a DMP or a payment arrangement, often for years, in which case the debt could still be alive well after the default has dropped off.

The 3 to 6 month period to record a default refers to the ICO guidance on reporting to the CRAs, not the limitation period.