Lowell Solicitors v Stupidstudent

[warwick65]

Re: Lowell Solicitors v Stupidstudent

Hi Stupid S

You claim was dated 12th may is that right so by my calculation the defence is due 14th June - unless you have agreed an extension and told the court , that is next Wednesday . i would be looking at getting the defence filed by Tuesday which is giving them plenty of time to get documents to you . You can start working on it over the weekend by all means and if you want to post it up (minus personal details) then people can give it a once over and sense check it

Oh never tell someone they are in default of a CCA request - why poke a sleeping lowlife

[stupidstudent]

Re: Lowell Solicitors v Stupidstudent

Thanks, I thought so. Interesting Lowell latest letter asks me to make sure I file my defence by the 17th, but I suspected they might be playing a bit fast and loose with the time-frames; particularly since all other correspondence I have had since my request says "The account is currently on hold to await the requested documents". A cynic might suggest they hope someone might take that to mean "you don't need to file a defence now", and accidentally trip up.

Any thoughts on whether to set out my defence re the notice of assignment in full now, or just solely rely on non-compliance with CCA request at this stage?

[warwick65]

Re: Lowell Solicitors v Stupidstudent

No include in your defence the basics of what you will rely on
So non compliance with CCA request
No proper assignment
No default notice
etc etc

I would be careful about calling them liars , the level of proof in a civil court is balance of probabilities but if you tell a judge they have lied he might think it a criminal matter and that brings up a hole load of problems - you need to prove beyond reasonable doubt and as you say it is difficult to prove a negative.

If you say i did not receive one and I know this because........ they then need to show they have systems checks and balances in place to prove they did send it . However the Notice of assignment is probably not the thing to focus on, it may be the deed as without a valid unredacted deed how can they prove they own the debt - you could use PRA v Mayhew as an example where there was no valid deed. That is for a later date though- witness statement

[stupidstudent]

Re: Lowell Solicitors v Stupidstudent

OK, so I have drafted my defence along the lines that they have not given enough information in the pleadings, and non compliance with the CCA request. I have also included a line about the notice of assignment. Do I go far enough on this on point? Would someone exam these and check for obvious mistakes before I file?

PreliminaryMatters

1. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
2. The claim appears to be for a credit card agreement regulated under the Consumer Credit Act 1974.

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

TheClaim

1. The claimant states that the claim relates to a Consumer Credit Act 1974 regulated agreement with NewDay Ltd Aqua under account reference xxxx.
2. The defendant admits to entering into an agreement for the provision of credit with NewDay Ltd but is unable to locate any account under such reference.
3. The claimant fails to state when the agreement was entered into. A copy of the contract or documents constituting the agreement, as required by PD 16, was not included with the claim.
4. Upon the Claimant clarifying matters set out above I reserve my position to amend this Defence further. I shall seek the costs of the amendments from the Claimant due to the Claimants failure to plead its case adequately.
5. In respect of matters to which I am able to plead, on receipt of this claim I sent “recorded delivery” requests for information to the Claimant on xxxx. The request was made pursuant to s78 (1) Consumer Credit Act 1974 to ascertain the agreement, which the Claimant was demanding payment under and to obtain further information about the terms of the contract.
6. The claimant has failed to reply within the statutory time limit to this request.
7. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.
8. I have not yet been able to examine the terms and conditions which were in force at the time that the agreement was executed and therefore I reserve the right to amend these pleadings to address any breaches that are identified if such terms and conditions are disclosed by the Claimant. The amendment will be due to the lack of disclosure by the Claimant and the failure to respond to the s78 CCA 1974 request correctly and the Defendant therefore also reserves the right to claim the costs of such amendment from the Claimant.

Noticeof Assignment

12. The Claimant states that the agreement was later assigned to the Claimant and notice given to the Defendant. I do not recall receiving any such notice.
Conclusion

1. The Claimant has failed to plead this matter properly, and has not complied with s78 Consumer Credit Act 1974 and therefore cannot enforce the agreement.
2. It is denied that the Claimant is entitled to the amounts claimed or any interest on such amounts.
   
   Statment of truth, etc.

Note: it appears the forum messes up the numbering when I post this - it is correct in the original.

[warwick65]

Re: Lowell Solicitors v Stupidstudent

[MENTION=5553]charitynjw[/MENTION]

Sorry am working all day , just on the train so can't really go through it
[MENTION=6]Amethyst[/MENTION]

[charitynjw]

Re: Lowell Solicitors v Stupidstudent

@charitynjw

Sorry am working all day , just on the train so can't really go through it
@Amethyst

Slacker!

@stupidstudent

If it were me I'd highlight 'no CCA s87 DN', plus any other things requested via CPR 31.14 but not disclosed.
I'd also tack "It is denied that the Claimant is entitled to the relief as claimed or at all" to the bottom of the defence, just above the statement of truth.
& 1.5- or double-space the paras & check numbering.
Presentation is quite important.

[MIKE770]

Re: Lowell Solicitors v Stupidstudent

space the claim out in each paragraph, all bunched up

[stupidstudent]

Re: Lowell Solicitors v Stupidstudent

Thank you for your replies. I should be clear, the presentation issues (including the dodgy numbering) appear to stem from me coping and pasting it from my office software - it is spaced, numbered and formatted according to example document in the original and correct on the draft saved on MCOL (I assume I submit electronically on MCOL without the "IN THE NORTHAMPTON COUNTY COURT (CCBC)" boilerplate , and then print the full version for my bundle?).

With regards to the default notice; is it sufficient to amend it to simply read "request a copy of the agreement and the default notice" or will this require a separate pleading?

As to "It is denied that the Claimant is entitled to the relief as claimed or at all" - is that in lieu of the final pleading "It is denied that the Claimant is entitled to the amounts claimed or any interest on such amounts." - It seems to say the same thing?

Thanks again for looking this over for me, I intend to get this in tonight or tomorrow as I will be busy the next few days.

[warwick65]

Re: Lowell Solicitors v Stupidstudent

Hi
On my way home now so yet again sat at a station

At for you last question about it is denied any relief etc as said by charity would be in place of your line

I have a few points which will be easier on my laptop when I get home so give me an hour and I will be back ( after beating up [MENTION=5553]charitynjw[/MENTION] for calling me a slacker

[charitynjw]

Re: Lowell Solicitors v Stupidstudent

As to "It is denied that the Claimant is entitled to the relief as claimed or at all" - is that in lieu of the final pleading "It is denied that the Claimant is entitled to the amounts claimed or any interest on such amounts." - It seems to say the same thing?

One is saying the Claimant is not entitled to interest, the other is saying not entitled to anything at all.

(**From charitynjw, in hiding in an undisclosed location**)

[warwick65]

Re: Lowell Solicitors v Stupidstudent

OK, so I have drafted my defence along the lines that they have not given enough information in the pleadings, and non compliance with the CCA request. I have also included a line about the notice of assignment. Do I go far enough on this on point? Would someone exam these and check for obvious mistakes before I file?

PreliminaryMatters

1. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
2. The claim appears to be for a credit card agreement regulated under the Consumer Credit Act 1974.

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

TheClaim

1. The claimant states that the claim relates to a Consumer Credit Act 1974 regulated agreement with NewDay Ltd Aqua under account reference xxxx.
2. The defendant admits to entering into an agreement for the provision of credit with NewDay Ltd but is unable to locate any account under such reference.
3. The claimant fails to state when the agreement was entered into. A copy of the contract or documents constituting the agreement, as required by PD 16, was not included with the claim. (This is not true when the claim is made online )
4. Upon the Claimant clarifying matters set out above I reserve my position to amend this Defence further. I shall seek the costs of the amendments from the Claimant due to the Claimants failure to plead its case adequately.
5. In respect of matters to which I am able to plead, on receipt of this claim I sent “recorded delivery” requests for information to the Claimant on xxxx. The request was made pursuant to s78 (1) Consumer Credit Act 1974 to ascertain the agreement, which the Claimant was demanding payment under and to obtain further information about the terms of the contract.
6. The claimant has failed to reply within the statutory time limit to this request Has the claimant responded outside the statutory time limit , if they has it will be valid. You may want to reword this - you could just miss out the last 8 words
7. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.
8. I have not yet been able to examine the terms and conditions which were in force at the time that the agreement was executed and therefore I reserve the right to amend these pleadings to address any breaches that are identified if such terms and conditions are disclosed by the Claimant. The amendment will be due to the lack of disclosure by the Claimant and the failure to respond to the s78 CCA 1974 request correctly and the Defendant therefore also reserves the right to claim the costs of such amendment from the Claimant.
9. The defendant does not recall ever reaching a default notice and the claimant is put to proof a default notice compliant with S87(1) and S88 was served

Noticeof Assignment

12. The Claimant states that the agreement was later assigned to the Claimant and notice given to the Defendant. I do not recall receiving any such notice.p ( I think you want to add that the claimant is put to proof a notice of assignment was issued)
A new paragraph - the claimant is put to proof they have the right under law to bring the claim and is requested to provide the deed of assignment
Conclusion

1. The Claimant has failed to plead this matter properly, and has not complied with s78 Consumer Credit Act 1974 and therefore cannot enforce the agreement.
2. It is denied that the Claimant is entitled to the amounts claimed or any interest on such amounts.Change to what Charity suggested )
   
   Statment of truth, etc.

Note: it appears the forum messes up the numbering when I post this - it is correct in the original.

Remember - the defence is where you state what you are defending and not the whole story - that is done later.

Short set , simple and to the point may win over a long diatribe - not that I am saying yours is

[stupidstudent]

Re: Lowell Solicitors v Stupidstudent

Thanks for looking this over. I sent a CPR request to the solicitors requesting the agreement, default notice, notice of assignment, and the requests for payments. I also sent a CCA request to the claimant (I realise for practical purposes they might as well be one and the same, but legally speaking...) for the agreement and a statement of account. They responded to the CPR request with the purported NoA and letters demanding payment I referred to in an earlier post, and a note that they had requested the agreement and default notice from the original claimant. I state "within the time limit" because they say they are going to respond, but haven't actually sent the docs, and I'm obviously not going to hang around forever when this defence is due, and they had the 12 working days the CCA gives them and which should be plenty. Given what you said, I propose to amend this to "The claimant failed to reply with documents requested"; since technically they did reply "Aqua's got them, just hold on a bit and I will get them"; but obviously that isn't sufficient to be able to enforce the agreement if it takes longer than 12 working days.

Another point of interest that may be worth mentioning - While starting to sort out my files, I found a CCA request to Aqua dated 8th October 2016. I had sent a CCA request to my other credit card company then as I was sure my APR was supposed to decrease the longer I held it and hadn't, and while I don't recall doing it otherwise I would have said earlier, I must have sent one to Aqua at the same time. I don't have proof of postage or a reply, so I am not sure if I should be mentioning it in the defence now (or mentioning it at all) - I suppose I'll have evidence one way or another when I get the SAR from Aqua. It would have been 4 days before the alleged assignment in any case, which might be why I never got a reply if Aqua washed their hands of it.

I will make the other amendments as suggested.