Lowells / Statute Barred / Phantom payment?

[Papa Smurf]

Hi all, first post, please go easy :-)

Need advice on behalf of my wife regarding a court claim from Lowells. Here's some details:

Original Creditor: JD Williams (Simply Be)
Claimant: Lowell Portfolio
Solicitor: Lowells Solicitors
Amount: c. £800 inc extra costs

Catalogue account, payments went awry (ceased) back in summer 2010 due to drastically reduced income. In short, not one single letter from them or subsequent DCAs has ever been answered.
Cohen Cramer Solicitors lodged the claim with the court on 21st April and we duly received the court papers.

Now, we are 99% certain that the last payment made to this account was some time in summer / autumn 2010. Do not have old paperwork, but it would be about then, along with a couple of others. More than confident that this is SB, we submitted defence solely on that basis and rejected offer of mediation.

Lowells Solicitors have now written to us saying they will now be acting instead of Cohen Cramer and have filed a Notice of Change of Legal Representation with the court. In the letter they state that the debt cannot be SB as they have been instructed that the last payment was made in Feb 2012, followed by the serving of a Default Notice in October 2012. We are pretty certain this all happened in 2010 but are now a little uncomfortable, just in case we are in fact wrong...

My questions, therefore -

We are confident that Feb 2012 is not correct, however we would feel more comfortable with absolute proof. Being that we have already filed defence and N180, what are our options at this stage? Can we still request a SAR from JD Williams? Not too knowledgeable about CPRs, but can we send one to Lowell's, requesting disclosure of the information they may (or may not) hold? We already plan to contact the bank (Barclays) to request old statements which should show no payments made over this period but would that be enough?

It seems odd that they've re-assigned solicitors, does anyone know if that is indicative of something?

Lastly, just on the off chance that we have got our dates wrong and we are liable (really don't think this is the case though) and the case goes against us, does the court still allow an application for monthly payments or would it now be too late for that (my wife has 2 CCJs already for similar amounts, both of which are being paid at £2 per month).

Thanks in advance.

[warwick65]

Re: Lowells / Statute Barred / Phantom payment?

Hi

First thing is to send that SAR , yes you can still do it

I would now also send a Part 18 request and ask very specific questions
The date of the last payment
The amount of the last payment
The origin of the last payment
The method of last payment

A part 18 request must not be used to phish but as they have stated a payment was made you should be able to ask. In addition, when it comes to the Witness statement, ask the same questions i.e something like, the claimant says a payment was made on xxxxxx , I dispute this and ask the claimant prove their claim by providing......


Have you sent a S78 request to Lowells at all- if not get one sent off now . If you have and they have not complied you could ask Lowells if they would consent to you amending your defence but sorry i am not sure how to do that
[MENTION=87380]Diana M[/MENTION] [MENTION=5553]charitynjw[/MENTION] [MENTION=551]pt2537[/MENTION] [MENTION=6]Amethyst[/MENTION] [MENTION=7765]Joanna C[/MENTION]

Of course the problem with some of this , (not the part 18) is that you may have to pay a fee and sometimes the pragmatic approach is best - for example if the fee was £255 with no guarantee they might accept 255 ( or maybe a little more) in settlement but don't go down that route without getting further advice

I know that unless I knew I had a rock solid case and the claim was small (ish) I would consider such a thing


Hope that helps

[Papa Smurf]

Re: Lowells / Statute Barred / Phantom payment?

Thanks for this.

Tonight I have written the SAR request to send directly to the original creditor (JD Williams).

With regards to the Part 18 request, am I also entitled to ask Lowell Solicitors for copies of the Agreement, Assignments and Default / Termination Notice? The existence of these has already been mentioned in writing by Lowell, so it seems fair to me to ask for them to be disclosed. Or must I stick to just the questions mentioned above? If I can, seems to me I then wouldn't need to make an S78 request?

Wanna do it right (and give no excuse to fob me off) but seeing / hearing conflicting information on this.

Thanks!

[charitynjw]

Re: Lowells / Statute Barred / Phantom payment?

Send the CCA request anyway.
The SAR will get your information, as might the Part 18.
The CCA request will give you legal protection if they can't comply.

[warwick65]

Re: Lowells / Statute Barred / Phantom payment?

If documents are mentioned in the particulars of claim then you would use a CPR 31.14 request

Part 18's need to be specific and not used as a phishing expedition

As Charitynjw says
A S78 request affords you legal protection if they can not comply whereas the others are to provide you with evidence to defend.

i.e If they can not comply with a S78 request, you have an absolute defence until they do comply. All other documents need interpreting and even if they can not produce them, they could persuade a judge one was sent

[Papa Smurf]

Re: Lowells / Statute Barred / Phantom payment?

I read elsewhere that a CPR 31.14 cannot be used once the claim has been allocated a track (which it has, small claims)?
And they didn't mention documentation in the particulars of claim it was in a free form letter they sent. I assume the worst that can happen is they'll say no to that part of a Part 18 request?
And yes I'll also prepare an S78.

Thanks for help thus far.

[charitynjw]

Re: Lowells / Statute Barred / Phantom payment?

CPR 31 does not apply once allocated to Small Claims.
But there's nothing to stop you from simply writing to them & saying "Send me X,Y & Z"

[pt2537]

Re: Lowells / Statute Barred / Phantom payment?

CPR 31 does not apply once allocated to Small Claims.
But there's nothing to stop you from simply writing to them & saying "Send me X,Y & Z"

And they have a duty to disclose documents which they are relying on too

[Joanna C]

Re: Lowells / Statute Barred / Phantom payment?

There are no disclosure obligations in small claims track unlike the fast track.

As PT says they should disclose evidence to support their claim but unless you get a court order telling them they must disclose certain documents they don't have to.

We recently had a Lowell Portfolio small claims trial where having ignored all requests for disclosure they served their only witness evidence 4 days before and that consisted of no agreement at all, no default notice or any record of one, no assignment etc. Bet you can guess what the result was