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  1. #1
    studly's Avatar

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    Default Lowell Portfolio Ltd v Studly

    Hello,

    My partner has received a CCJ claim from Northampton CCBC, dated 15 Mar 17 for approx. £900. The basic details are as follows;
    Claimant :Lowell Portfolio Ltd, Leeds
    Solicitor : Cohen Cramer Solicitors, Leeds
    Original Creditor : J D Williams Group (Mail Order Catalogue)

    Particulars of Claim:

    Claim is for the sum of (£) due by the Defendant under an agreement regulated by the CCA 1974 for a JD Williams Account with an account reference of ********. The Defendant failed to maintain contractual payments required by the agreement and and a Default Notice was served under s.87(1) of the CCA 1974 which has not been complied with. The debt was legally assigned on dd/mm/yyyy, notice of which has been given to the defendant. The claim includes statutory interest under S.69 of the County Courts Act 1984 at a rate of 8% per annum form the date of assignment to the date of issue of these proceedings in the sum of (£). The claimant claims the sum of (£).

    My partner does not acknowledge the debt and believes strongly that this is now statute barred as no written acknowledgement has been made with the creditors, or payment made in her knowledge since at the latest Nov 2010.

    We intend to submit the acknowledgment of service tomorrow via MCOL and we have drafted a CCA and CPR letter but would be grateful for any assistance in the fine tuning of these letters, specifically in the documents to request (mentioned?) and subsequent advice for defending the claim.Many thanks in advance, all help will be appreciated!
    Last edited by studly; 21st March 2017 at 11:33:AM.

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    Default Re: Lowell Portfolio Ltd v Studly

    Hi studly & welcome to LB.

    For the CCA request re a catalogue account, s78 is applicable.

    For the CPR request, ask for the agreement, the Default Notice, the Notice of Assignment & a cheeky ask for the Deed of Assignment.
    Your defence will be due latest 33 days (28 + 5 for posting) from the issue date on the N1 court claim form.

    Also, SAR the original creditor for all data held by them.
    http://www.legalbeagles.info/forums/...quest-template

    Re statute-barred, the relevant date is not 6 years from the last payment, it's 6 years from when the agreement was officially defaulted/terminated (typically 3 months or so from the last payment).
    Last edited by charitynjw; 20th March 2017 at 06:16:AM.
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    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Morning! Thanks for the quick response! :-)
    The default date on the credit file is 9 Sep 2011, which seems quite a long time after the last payment made, so therefore the statute barred defence may not hold then :-(. Will amend documents to suit and get them sent off as advised.
    Many thanks

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    Default Re: Lowell Portfolio Ltd v Studly

    The default date on CRA records is not necessarily a reliable indicator.
    More important would be the date of the s87 Default Notice.
    The SAR should reveal that.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

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    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Hi charitynjw,

    SAR posted to JD Williams this afternoon, along with CPR and CCA requests to the solicitor and Lowells respectively. Just about to logon and acknowledge the Court claim. I guess it's just a waiting game now ....

    Many thanks again! ��

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    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    P.s. Just one last thing ... Should I send the standard Statute Barred letter to Lowell at this stage, asking for proof to the contrary, as I suspect this may be a relevant defence? @charitynjw @Amethyst
    Last edited by studly; 22nd March 2017 at 11:20:AM. Reason: too long winded!

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    Default Re: Lowell Portfolio Ltd v Studly

    Although an SB defence puts the initial onus on the Claimant to prove that it is not SB, it would be wise to provide irrefutable evidence that it is SB.
    The SAR may show it, historic bank accounts (often available from the bank for a few pounds) & possibly personal files from years ago.
    But regardless, do submit SB as a part of the defence when time comes to file it.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  8. #8
    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Ok, so I shouldn't send the SB letter to Lowells yet then, just submit it as part of my defence until I get documents etc?

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    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    You have contacted me regarding the subject account above, in which you claim monies owed. I do not acknowledge this account or debt to you or any other company or organisation that you may
    claim to be representing.

    I would point out that under the Limitation Act 1980 Section 5 states that “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

    Unless you are able provide strict proof and evidence of payment by myself or written acknowledgement of the debt from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are unable to take any court action against me to recover the alleged amount
    claimed.

    Should you proceed with court action I must inform you that I shall vigorously defend this action in court citing the Limitation Act as part of my defence.

    For the avoidance of doubt strict proof should include how any alleged payment was made, from which bank account it was allegedly made from and the name of the person who allegedly made any deposit.

    If you are unable to provide this information I will require a written explanation. Please be aware that I will also require you to provide this proof in any court should you attempt legal action.

    Your attention is drawn to rules 7.15.7 and 7.15.8 of the FCA Consumer Credit Source book (CONC), rules which I understand you are legally obliged to adhere to, and that compliance with which is a condition of your FCA Licence.

    I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed

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    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Morning!

    Received a reply from the Solicitors at the weekend, stating that the documents requested 'will be provided on or before disclosure as directed by the court'. Is this reply sufficient seeing that I require them in order to file my defence? I will attempt to post a redacted version of the letter received, any advice or comment would be much appreciated.
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    Amethyst's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Morning

    You asked them within your CPR 31.14 request letter to agree and extension to allow them the time to produce documents. The maximum extension is 28 days. You could respond to them something along these lines ( just my thoughts - others may think to just file and be done with it)
    --------------------------------------------------------------------------------------------
    ....................


    Further to your recent correspondence, you are aware that I have requested further information from you regarding your clients claim No XXXXX relating to a debt allegedly previously owed to xxxxxxxxxxxxxxxxx, however have indicated that you will not be supplying this information prior to disclosure being ordered by the court. Without copies of the documents requested, as mentioned in your clients statement of case, I am unable to make an informed decision in defending the claim and therefore would agree to a maximum extension of 28 days to the date for filing my defence as allowed under CPR 15.5. Should your client be unable to provide documents prior to the end of this extension I will be asking the court to order disclosure of the documents, and any amendment required to my defence thereafter will be at your clients cost.

    You will also be aware that I have formally requested a copy of the consumer credit agreement pursuant to s.78 Consumer Credit Act 1974 and that without this document being provided your client is unable to enforce the alleged agreement. I should also inform you that I believe that the claim relates to a debt which may be statute barred under section 5 of the Limitations Act 1980.

    If you could confirm to me in writing that this is acceptable to your client I will inform the court of the extension in writing.

    Considering the current deadline for submission is the xxxx xxxxxx 2017 I would appreciate a response by return. Alternatively I shall be filing my response to your clients claim on xxxxxxxxxxxxx 2017.


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    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Thanks @Amethyst ... I would prefer to correspond in order to confirm an extension of 28 days, plus also hint that I believe it will be statute barred.

    The last payment to this account from my partner's record was circa Nov 2010 for £1 according to her bank statements, following a period of 5 months or so without payment. She had hit hard times financially during that period, and was on the cusp of requesting a DRO.

    She is adamant no acknowledgement or payment has been made while at her current address, which occurred in Apr 11 but is unable to recall exact details of the CCA in question or associated negotiations.

    Final question, is the 28 day extension added to the current submission deadline, i.e. if it is currently 12 Apr 2017 it becomes 30 Apr 2017?

    Thanks in advance :-)

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    Default Re: Lowell Portfolio Ltd v Studly

    Had a tweak with the wording above, any thoughts or edits on the following would be appreciated .....

    Dear Sir/Madam,

    Your Client: Lowell Portfolio I Ltd

    Claim Ref: ########

    Further to your recent correspondence dated ## Mar 2017, you will be aware that I requested documents under CPR 31.14 regarding a claim from your client for a debt that was alleged to be previously owed to JD Williams. It was indicated within your response that you will not be supplying this information prior to disclosure being ordered by the court.

    Without inspection of the documents requested, as were mentioned in the statement of case, I am unable to make an informed decision in defending the claim and will therefore agree to a maximum extension of 28 days to the date for filing my defence as is allowed under CPR 15.5.

    In agreeing to this extension I will also be providing additional time for you to ensure compliance with your CPR 31 duties. In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with the CPR 31.14 request.

    Should your client be unable to provide the documents prior to the end of this extension I will be asking the court to order disclosure of the documents, and that any amendment required to my defence thereafter will be at your clients cost.

    You will also be aware that I have formally requested a copy of the consumer credit agreement pursuant to s.78 Consumer Credit Act 1974 and that without this document being provided your client is unable to enforce the alleged agreement. I should also inform you that I believe that the claim relates to a debt which may be statute barred under section 5 of the Limitations Act 1980.

    Considering the current deadline for my defence submission is the 12 Apr 2017 I would appreciate a response by return post. In the event of no reply I shall be filing my response to your clients claim on 11 Apr 2017 regardless.

    Please confirm to me in writing that this extension of 28 days is acceptable to your client. I will then inform the court of the agreed extension.


    Yours Faithfully

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    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Well .... received this letter back today, looks like the extension for the defence has been declined!
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    Default Re: Lowell Portfolio Ltd v Studly

    If the court claim issue date is 15th March (post #1), I reckon that your defence is due latest 17th April.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

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    warwick65's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    Well .... received this letter back today, looks like the extension for the defence has been declined!
    Not necessarily a bad thing especially if you add a line about them covering the costs of your amended defence if they stump up the docs after the deadline.

    Why, in all honesty do we give them longer to find the documents which I believe they should have before issuing a claim but in fact they rarely have and hope for a default judgement.
    I believe the rules are changing next year which might account for what seems like a flurry of capital One claims at the moment.

    Or maybe Lowell are seeking to maximise their assets for other reasons

  17. #17
    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by charitynjw View Post
    If the court claim issue date is 15th March (post #1), I reckon that your defence is due latest 17th April.
    Thanks for that @charitynjw , on double checking the dates you are right. I guess I must have just added 28 days to 15th March and not allowed for the 5 days for service :-)

    - - - Updated - - -

    Quote Originally Posted by warwick65 View Post
    Not necessarily a bad thing especially if you add a line about them covering the costs of your amended defence if they stump up the docs after the deadline.

    Why, in all honesty do we give them longer to find the documents which I believe they should have before issuing a claim but in fact they rarely have and hope for a default judgement.
    I believe the rules are changing next year which might account for what seems like a flurry of capital One claims at the moment.

    Or maybe Lowell are seeking to maximise their assets for other reasons
    Should I not respond with a letter pointing out that it hasn't yet been allocated to small claims yet then? Or is that just being a little pedantic?

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    warwick65's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Erm not sure. No harm done i guess. If you do keep a copy and get proof of postage.

    @Diana M

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    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Good afternoon all! :-)

    Further to my previous post re: responding to the last letter please could @Amethyst @nemesis45 @charitynjw @Joanna_c @diana_m or fellow pro's scribble their thoughts if possible?

    Sorry, I understand how busy you must be ....

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    Diana M's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    Further to my previous post re: responding to the last letter please could @Amethyst @nemesis45 @charitynjw @Joanna_c @diana_m or fellow pro's scribble their thoughts if possible?

    I understand how busy you must be ....
    I see my name is on that long list of members you've tagged for urgent help, so let me see if I can explain things to you (it's a weekend so that's why you'll find volunteers busy).

    I've looked at the letter you posted up last night. It seems harmless to me and doesn't require a response.

    You appear to have sent a CPR 31.14 Request to the Claimant's solicitors and they appear to say they won't comply until later on in the proceedings. Fair enough, that's their prerogative.

    They say they don't want an extension of time for you to file your Defence unless you do in which case they'll entertain your request for one. Fair enough.

    From what I can see your Defence deadline has been predicted to be 17th April. If documents haven't been forthcoming by that date then I'm guessing your Defence will reflect that.

    Has there been any response to your s.78 CCA Request yet?

    It's a difficult concept to grasp (I mean that in a good way) but the absence of documents from the Claimant can actually be a good thing. Maybe, just maybe, they haven't got them or they didn't exist in the first place.

    They need documentation to prove their claim. Be happy that they haven't got any (yet)

    Di
    I am a Litigation Executive at Joanna Connolly Solicitors a firm which specializes in consumer credit.

    This forumís site rules donít allow me to give advice by PM but if you need to contact me please email di@joannaconnollysolicitors.co.uk. Our initial advice is always free.


    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

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    Diana M's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    I would prefer to correspond in order to confirm an extension of 28 days, plus also hint that I believe it will be statute barred.

    The last payment to this account from my partner's record was circa Nov 2010 for £1 according to her bank statements
    Personally I wouldn't have written another letter following your CPR 31.14 Request for documents which they intend to rely on to prove their case.

    This is a £900 claim so I doubt the court will be interested in awarding costs to either party unless their conduct has been totally unreasonable.

    I now see the draft of what you intended to send in post # 13. I do hope you didn't "hint" at the debt being SB in the final version.

    Why give them anything to work with?

    Less is more with litigation.

    Di
    I am a Litigation Executive at Joanna Connolly Solicitors a firm which specializes in consumer credit.

    This forumís site rules donít allow me to give advice by PM but if you need to contact me please email di@joannaconnollysolicitors.co.uk. Our initial advice is always free.


    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

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    Diana M's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    no acknowledgement or payment has been made while at her current address, which occurred in Apr 11 but is unable to recall exact details of the CCA in question or associated negotiations.
    What "associated negotiations" ?

    If she entered into any written dialogue about repayment of the debt that may have a negative impact on the SB argument if the negotiations were to be perceived as an acknowledgement of the debt despite no actual payments being made.

    Were these negotiations carried out on a Without Prejudice basis?

    Di
    I am a Litigation Executive at Joanna Connolly Solicitors a firm which specializes in consumer credit.

    This forumís site rules donít allow me to give advice by PM but if you need to contact me please email di@joannaconnollysolicitors.co.uk. Our initial advice is always free.


    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

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    studly's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Hi Di,

    Hopefully I didn't spam everyone by my tags earlier, was a just a little unsure which way to head. Thank you so much for getting back to my anyway! :-)

    No response from Lowell at all yet re: CCA request, nor any acknowledgement from JD Williams regarding the SAR. The only correspondence has been between my partner and Lowell Solicitors (Cohen Cramer).

    I can see that no response can be a good thing, it just feels a little like we're working blindly without sight of the facts behind this claim, or that it may even be statute barred?

    I have already helped drafted a defence for her using the templates provided, based on nil response for documents so will just hold out for another week or so.

    I was (mistakenly) under the impression that they were obliged to provide the documents requested following a CPR 31.14 request so that a claim could be defended.

    Thanks again for your help, and apologies for seeming a little pushy in getting a response. Best Wishes, studly

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    Diana M's Avatar

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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    I can see that no response can be a good thing, it just feels a little like we're working blindly without sight of the facts behind this claim, or that it may even be statute barred?

    I have already helped drafted a defence for her using the templates provided, based on nil response for documents so will just hold out for another week or so.

    I was (mistakenly) under the impression that they were obliged to provide the documents requested following a CPR 31.14 request so that a claim could be defended.

    Thanks again for your help, and apologies for seeming a little pushy in getting a response.
    You weren't being pushy at all.

    I just didn't want you to think that your plea for help had been overlooked overnight just because some of us had to do the washing and supermarket shopping (well at least that's what I was doing most this weekend!).

    I also wanted to help you to realise that the onus of proving the claim rests with the Claimant. If you think the debt may be Statute Barred then add that to your Defence then the Claimant will have to prove you wrong.

    That way you're being proactive not reactive

    Di
    I am a Litigation Executive at Joanna Connolly Solicitors a firm which specializes in consumer credit.

    This forumís site rules donít allow me to give advice by PM but if you need to contact me please email di@joannaconnollysolicitors.co.uk. Our initial advice is always free.


    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

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    Default Re: Lowell Portfolio Ltd v Studly

    Thanks for responding Di. I wasn't sure about the cpr follow up, that was the received wisdom in the old days but I see perfectly your reason

    As you say

    Less is more.

    Something i I am not personally good at.

    Greetings from the land of solidarity , how appropriate

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