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Thread: Lowell Portfolio Ltd v Studly

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  1. #26
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by Diana M View Post
    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
    Di, unfortunately yes it was hinted at in the letter sent back to CC, but no reference was made to that in their response. I see your point with regards to information divulgence.

  2. #27
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by Diana M View Post
    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
    Enquiries were made at the time (Circa mid to late 2010) with regards to setting up a DRO with a number of creditors due to circumstances at the time, but it was never actually implemented due to the potential loss of their family car. Not sure if they were made without prejudice.

  3. #28
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    Enquiries were made at the time (Circa mid to late 2010) with regards to setting up a DRO with a number of creditors due to circumstances at the time, but it was never actually implemented due to the potential loss of their family car. Not sure if they were made without prejudice.
    If this was in 2010 it won't impact on any assertion you make that the debt was Statute Barred before the claim was issued in March 2017 *phew*.

    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

  4. #29
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    Default Re: Lowell Portfolio Ltd v Studly

    Well, the defence submission is only a few days away .... eek!

    The claim was issued on 15 March, which means Bank Holiday Monday (17th April) is the 33 day deadline. Is it advisable to submit by 4 pm on Thu 13th April in this case, due to the long Easter weekend?

    A defence has been drafted anyway, and a redacted version is detailed below. Pretty please could I ask that you awesome people on LB have a look and provided some much needed feedback, specifically with regards to the defences submitted and the order of merit. Many thanks in advance :-)

    ****************

    Defence Draft
    -----------------------------------------------------------------------------------------------

    1. I received the claim ####### from the Northampton County Court on ## ### 2017.

    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 JD Williams Catalogue account, an agreement 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 to the claim.


    5. The statement of case fails to state when the agreement was entered into.

    6. I am of the belief that the alleged debt is statute barred under the provisions of The Limitation Act 1980. The Claimant is put to providing unequivocal proof that the alleged debt is not statute barred else the claim should be struck out.

    7. The Claimants statement of case states that a Default Notice, pursuant to s.87(1) of the Consumer Credit Act was served. I do not recall receiving this Default Notice. The Claimant is required to prove that a compliant Default Notice was served.

    8. The Claimants statement of case states that the account was assigned from JD Williams to Lowell Portfolio I Ltd on ## ### 2012. I do not recall receiving notice of this assignment.

    9. On the ## ### 2017 a formal request was sent to Cohen Cramer Solicitors for inspection of the following documents mentioned in the statement of case under CPR 31.14;

    a. Agreement
    b. Default Notice
    c. Notice of Assignment
    d. Deed of Assignment.

    10. Cohen Cramer Solicitors have not provided me with any of these documents.

    11. On the ## ### 2017 a letter was sent to Cohen Cramer Solicitors, requesting an agreement in writing to a 28 day extension (as allowed under CPR 15.5) to the time period allowed for the filing of my defence, pending receipt of the documents requested.

    12. The response received to this request indicated that this extension was denied.

    13. On the ## ### 2017 a formal request for a copy of the original agreement was sent to the Claimant, pursuant to s.78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

    14. The Claimant has failed to comply with s.78(1) Consumer Credit Act 1974 and by virtue of s.78(6) of the Consumer Credit Act 1974 cannot enforce the agreement.

    15. Under CPR 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 that the court orders the Claimant to provide the documents requested in order that I may fully plead my case else the Claim should be struck out.

    17. In the event that the documents are received from the Claimant, I will then be in a position to amend my defence and would ask that the court orders the Claimant to bear the cost of this.

    18. It is denied that the Claimant is entitled to the relief as claimed or at all.
    Last edited by studly; 10th April 2017 at 09:58:AM. Reason: Re-ordered the points

  5. #30
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    Well, the defence submission is only a few days away .... eek!

    The claim was issued on 15 March, which means Bank Holiday Monday (17th April) is the 33 day deadline. Is it advisable to submit by 4 pm on Thu 13th April in this case, due to the long Easter weekend?

    A defence has been drafted anyway, and a redacted version is detailed below. Pretty please could I ask that you awesome people on LB have a look and provided some much needed feedback, specifically with regards to the defences submitted and the order of merit. Many thanks in advance :-)
    Good Morning! With just a few days before submission is due (if indeed it needs to be in by Thursday), please could I ask that someone cast their eye over the defence draft? Have removed the flip flip referencing between myself and 'the defendant' and kept it to 'I' or 'me' instead. Many thanks

  6. #31
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    Well, the defence submission is only a few days away .... eek!

    The claim was issued on 15 March, which means Bank Holiday Monday (17th April) is the 33 day deadline. Is it advisable to submit by 4 pm on Thu 13th April in this case, due to the long Easter weekend?

    A defence has been drafted anyway, and a redacted version is detailed below. Pretty please could I ask that you awesome people on LB have a look and provided some much needed feedback, specifically with regards to the defences submitted and the order of merit. Many thanks in advance :-)

    ****************

    Defence Draft
    -----------------------------------------------------------------------------------------------

    1. I received the claim ####### from the Northampton County Court on ## ### 2017.

    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 JD Williams Catalogue account, an agreement 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 to the claim.


    5. The statement of case fails to state when the agreement was entered into.

    6. I am of the belief that the alleged debt is statute barred under the provisions of The Limitation Act 1980. The Claimant is put to providing unequivocal proof that the alleged debt is not statute barred else the claim should be struck out.

    7. The Claimants statement of case states that a Default Notice, pursuant to s.87(1) of the Consumer Credit Act was served. I do not recall receiving this Default Notice. The Claimant is required to prove that a compliant Default Notice was served.

    8. The Claimants statement of case states that the account was assigned from JD Williams to Lowell Portfolio I Ltd on ## ### 2012. I do not recall receiving notice of this assignment.

    9. On the ## ### 2017 a formal request was sent to Cohen Cramer Solicitors for inspection of the following documents mentioned in the statement of case under CPR 31.14;

    a. Agreement
    b. Default Notice
    c. Notice of Assignment
    d. Deed of Assignment. *** the claimant would most likely decline provision of the DOA as they claim that it's confidential.***

    10. Cohen Cramer Solicitors have not provided me with any of these documents.

    11. On the ## ### 2017 a letter was sent to Cohen Cramer Solicitors, requesting an agreement in writing to a 28 day extension (as allowed under CPR 15.5) to the time period allowed for the filing of my defence, pending receipt of the documents requested.

    12. The response received to this request indicated that this extension was denied.

    13. On the ## ### 2017 a formal request for a copy of the original agreement was sent to the Claimant, pursuant to s.78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

    14. The Claimant has failed to comply with s.78(1) Consumer Credit Act 1974 and by virtue of s.78(6) of the Consumer Credit Act 1974 cannot enforce the agreement.

    15. Under CPR 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 that the court orders the Claimant to provide the documents requested in order that I may fully plead my case else the Claim should be struck out.

    17. In the event that the documents are received from the Claimant, I will then be in a position to amend my defence and would ask that the court orders the Claimant to bear the cost of this.

    18. It is denied that the Claimant is entitled to the relief as claimed or at all.
    Looks good to go! I would file no later than Wednesday.

    nem
    The Advice I Give and Draft Letters Provided Are Drawn From Personal Experience and Career Training And Are Given Freely And Without Liability.
    Please make your own decisions with care and if necessary seek qualified legal advice.
    I will not advise by Private Message. If Specific Advice is Needed please Tag me in your post by typing @Nemesis45 . If you receive messages from anyone offering advice for a fee please report it to the site team. Animo et Fide.





  7. #32
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    Default Re: Lowell Portfolio Ltd v Studly

    Thanks @nemesis45 , shall I keep the Deed of Assignment request in the defence though, seeing as that is one of the documents I requested?

  8. #33
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    Default Re: Lowell Portfolio Ltd v Studly

    Did you ask for it in your CPR31.14 request?

    If so keep it in

  9. #34
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    Thanks @nemesis45 , shall I keep the Deed of Assignment request in the defence though, seeing as that is one of the documents I requested?
    Yes by all means leave it in, sometimes a judge will order it to bed disclosed if necessary.

    nem
    The Advice I Give and Draft Letters Provided Are Drawn From Personal Experience and Career Training And Are Given Freely And Without Liability.
    Please make your own decisions with care and if necessary seek qualified legal advice.
    I will not advise by Private Message. If Specific Advice is Needed please Tag me in your post by typing @Nemesis45 . If you receive messages from anyone offering advice for a fee please report it to the site team. Animo et Fide.





  10. #35
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    shall I keep the Deed of Assignment request in the defence though, seeing as that is one of the documents I requested?
    I often read posts on some threads which say the Defendant can't succeed in obtaining disclosure of the Deeds because they are "commercially sensitive". My firm has proved that's nonsense - albeit you may have to fight for them.

    Quote Originally Posted by Joanna C View Post
    For example PRA Group (UK) Limited used to try that one with me about the Deeds of Assignment . After several court hearings they had to provide the Deeds of Assignment. I see no reason why the Lowells assignments should not similarly be disclosed.

    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

  11. #36
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    The claim was issued on 15 March, which means Bank Holiday Monday (17th April) is the 33 day deadline. Is it advisable to submit by 4 pm on Thu 13th April in this case, due to the long Easter weekend?
    .
    If a Defence deadline falls on a weekend or Bank Holiday then it moves to 4 pm the next working day which would be Tuesday 18th April.

    If you file too early and you receive anything in the post which impacts on the Defence which you filed (such as last minute documents produced) then you will have to seek permission from the court to file an Amended Defence which will incur costs of any Application you need to make (unless you're entitled to fee remission).

    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

  12. #37
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    Default Re: Lowell Portfolio Ltd v Studly

    Thanks Di :-)

    Does the Deed of Assignment usually provide any relevant information that can be used to our benefit?

  13. #38
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    Thanks Di :-)

    Does the Deed of Assignment usually provide any relevant information that can be used to our benefit?
    Oh yes

    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

  14. #39
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by Diana M View Post
    If a Defence deadline falls on a weekend or Bank Holiday then it moves to 4 pm the next working day which would be Tuesday 18th April.

    If you file too early and you receive anything in the post which impacts on the Defence which you filed (such as last minute documents produced) then you will have to seek permission from the court to file an Amended Defence which will incur costs of any Application you need to make (unless you're entitled to fee remission).

    Di
    Thank you, noted your point about the extended deadline because of the bank holiday. I'm naturally a little concerned they may then claim it was submitted too late and get a default in judgement but of course trust your experience and expertise in these matters!

  15. #40
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    I'm naturally a little concerned they may then claim it was submitted too late and get a default in judgement
    Are you going to be filing your Defence electronically (i.e. logging in to the MCOL website) or by email or by post?

    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

  16. #41
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by Diana M View Post
    Are you going to be filing your Defence electronically (i.e. logging in to the MCOL website) or by email or by post?

    Di
    It will either be via email or through MCOL Di. I've read on this forum that a few people have occasionally had issues with the latter.

  17. #42
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by Diana M View Post
    If a Defence deadline falls on a weekend or Bank Holiday then it moves to 4 pm the next working day which would be Tuesday 18th April.

    If you file too early and you receive anything in the post which impacts on the Defence which you filed (such as last minute documents produced) then you will have to seek permission from the court to file an Amended Defence which will incur costs of any Application you need to make (unless you're entitled to fee remission).

    Di
    Sorry to be a pain Di ... my only other question regarding this deadline is if I stated to Cohen Cramer in my previous correspondence that I would be filing a defence by what I believed​ was the deadline (tomorrow). If I don't subsequently submit it until Tuesday, is there a chance they could apply for a default judgment once my deadline stated to them has passed?

  18. #43
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    Default Re: Lowell Portfolio Ltd v Studly

    I am sure Di will confirm but the court runs to its own timetable and deadlines not ones that Cohen Cramer want

  19. #44
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    Sorry to be a pain Di ... my only other question regarding this deadline is if I stated to Cohen Cramer in my previous correspondence that I would be filing a defence by what I believed​ was the deadline (tomorrow). If I don't subsequently submit it until Tuesday, is there a chance they could apply for a default judgment once my deadline stated to them has passed?
    No they can't because they'll be locked out of the court database/system until the real deadline passes i.e. any attempt to request a Default Judgment will be blocked.

    If you're feeling uncomfortable about the dates then file your Defence on Wednesday as has been advised by a forum member.

    If anything arrives in the post on Thursday or Saturday you'll have to deal with it somehow, but you can cross that bridge when/if you get to it.

    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

  20. #45
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by Diana M View Post
    No they can't because they'll be locked out of the court database/system until the real deadline passes i.e. any attempt to request a Default Judgment will be blocked.

    If you're feeling uncomfortable about the dates then file your Defence on Wednesday as has been advised by a forum member.

    If anything arrives in the post on Thursday or Saturday you'll have to deal with it somehow, but you can cross that bridge when/if you get to it.

    Di
    No, I'm more than comfortable with that now you've explained how the system works, thanks Di

  21. #46
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    Default Re: Lowell Portfolio Ltd v Studly

    Okie dokies, with just a few days to go before the REAL deadline at 1600 on Tue 18th April (bloody Bank Holidays eh?!?) I've tweaked the defence a little bit, primarily so it reads better I hope.

    Please feel free to submit any critical analysis!!!


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

    1. I received the claim ######## issued by the Northampton County

    Court on ## Mar 2017.

    2. Each and every allegation in the Claimants statement of case
    is denied unless specifically admitted in this Defence.

    3. The statement of case states that the amount claimed is due
    under an agreement regulated by the Consumer Credit Act 1974 for a
    JD Williams account, reference #######.

    4. The statement of case fails to state when the agreement was
    entered into.

    5. I am of the belief that the alleged debt will be statute
    barred under the provisions of The Limitation Act 1980. The
    Claimant is put to providing unequivocal proof that the alleged
    debt is not statute barred else the claim should be struck out.

    6. The Claimants statement of case fails to give adequate
    information to enable me to properly assess my position with
    regards to the claim.

    7. The Claimants statement of case states that a Default Notice,
    pursuant to s.87(1) of the Consumer Credit Act was served. I do
    not recall receiving this Default Notice. The Claimant is required
    to prove that a compliant Default Notice was served.

    8. The Claimants statement of case states that the account was
    assigned from JD Williams to Lowell Portfolio I Ltd on ## Dec
    2012. I do not recall receiving notice of this assignment.

    9. On the ## Mar 2017 a formal request was sent to Cohen Cramer
    Solicitors for inspection of the following documents mentioned in
    the statement of case under CPR 31.14; (a) Agreement (b) Default
    Notice (c) Notice of Assignment (d) Deed of Assignment.

    10. Cohen Cramer Solicitors have not provided me with any of
    these documents.

    11. On the ## Mar 2017 a further letter was sent to Cohen Cramer
    Solicitors, requesting an agreement in writing to a 28 day
    extension (as allowed under CPR 15.5) to the time period allowed
    for the filing of my defence, pending receipt of the documents
    requested, detailed at point 9 above.

    12. The response received in a letter dated ## Mar 2017 denied
    this extension request, by virtue of the absence of any written
    agreement contained within.

    13. On the ## Mar 2017 a formal request for a copy of the
    original agreement was sent to the Claimant, pursuant to s.78 of
    the Consumer Credit Act 1974 along with the statutory £1.00 fee
    payment by Postal Order.

    14. The Claimant has failed to comply with s.78(1) Consumer
    Credit Act 1974 and by virtue of s.78(6) of the Consumer Credit
    Act 1974 cannot enforce the agreement.

    15. Under CPR 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 that the court orders the Claimant to provide the
    documentation requested so that I may fully plead my case else the
    Claim should be struck out.

    17. In the event that the documents are received, I will then be
    in a position to amend my defence and would ask that the court
    orders the Claimant to bear the cost of this.

    18. It is denied that the Claimant is entitled to the relief as
    claimed or at all.

  22. #47
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    Default Re: Lowell Portfolio Ltd v Studly

    Hello again everyone! :-)

    Since filing the defence online on 18th April, we logged into today to find out a Directions Questionnaire was sent out yesterday.

    Does this mean the claimant has responded to the defence submitted or is it just the standard next step by the court?

  23. #48
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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    we logged into today to find out a Directions Questionnaire was sent out yesterday.

    Does this mean the claimant has responded to the defence submitted or is it just the standard next step by the court?
    A Directions Questionnaire should only be sent out if the Claimant has informed the court that they intend to continue with the legal proceedings (otherwise the claim becomes stayed).

    This only happens after they (Claimant) has received your Defence.

    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

  24. #49
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    Default Re: Lowell Portfolio Ltd v Studly

    Oh Eck, would that indicate that they are confident to proceed so soon after receiving the defence?

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    Default Re: Lowell Portfolio Ltd v Studly

    Quote Originally Posted by studly View Post
    Oh Eck, would that indicate that they are confident to proceed so soon after receiving the defence?
    Not necessarily - it may mean they are trying to make you blink first

    By the looks of your defence they haven't complied with your S78 request , have not supplied the Default Notice and have not supplied the notice of assignment

    Did you ever send a Subject Access Request to JD Williams - thats the one which requires the £10 fee

    Try not to worry- easier said than done I know

    My case is a couple of weeks ahead of you, DQ's sent and returned etc . I wouldn't be fighting it if I thought they realistically had a chance

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