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  1. #26
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Quote Originally Posted by warwick65 View Post
    I would certainly get that CCA request off asap

    I know the reasoning why the CPR 18 request was used in place of the CPR 31.14 request however from my understanding it was flawed logic - however that is irrelevant now

    I feel you have a serious conflict here- if you make an assertion the account was opened fraudulently , you would then have to make a complaint to the police which could bring a whole new level of pain for your ex and it may not be easy to prove

    It sounds like the account was opened online where a tick box is all that is required for a signature

    Again, I stand to be corrected but i think you have misinterpreted what original documents mean - they do not mean the actual original documents but the documents that were copied to include in the witness statement

    I think a SAR would still be useful to show when the last payment was.
    A cpr 18 request can be useful, for example if a party refers to a document in their reply to part 18 then they have disclosed the document in their reply and you can ask for a copy under CPR 31. as a part 18 reply forms part of the pleadings.

    Re Online accounts while a tick in the box is technically all that is required, the creditor must still ensure they comply with the CCA and comply with its formalities
    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. 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.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.



    You can also follow my blog on consumer credit here.


  2. #27
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Quote Originally Posted by pt2537 View Post

    Re Online accounts while a tick in the box is technically all that is required, the creditor must still ensure they comply with the CCA and comply with its formalities
    I don't think the formalities of a S77-79 request were being questioned , just the signing of the agreement , although for a debt of this age that is less relevant

  3. #28
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Quote Originally Posted by warwick65 View Post
    I don't think the formalities of a S77-79 request were being questioned , just the signing of the agreement , although for a debt of this age that is less relevant
    and i didnt mention s77-79 either did i now my dear boy

    My point is, the creditor even with an online application still has to ensure compliance with the other formalities such as s61A /62/ 66 etc. all of which need looking at, its easy to just assume a lender gets it right, they dont, more often they get it wrong

    Thats the point i was alluding to
    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. 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.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.



    You can also follow my blog on consumer credit here.


  4. #29
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Quote Originally Posted by pt2537 View Post
    my dear boy
    Yes so dear you couldn't afford me. Nice of you to call me a boy though

  5. #30
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Thanks Warwick & PT2537,

    I will get a CCA request off tomorrow to Lowell! In regards to the SAR. I sent about 40mins on the phone to an advisor at shop direct and they had advised me of the last payment date of Jan 2011 and gave me the amount. Would the SAR be able to be used later on in the process?

    In regards to the EX situation this is very tricky as she currently is stopping my daughter staying with me which is why I am treading lightly in this matter! I feel I may have to just take it on the chin in regards to defending this! I am starting court proceeding to get access to my daughter as well!

    My last case that was struck out was completed on the case that the debt company could not provide the agreement! I have completed an unless order and received a letter from the Debt company that they could not provide the documents and that they stated they could not enforce the debt. I sent this to the court and the Judge struck out the claim!

    So my plan is as follows

    1. Return the DQ to Sols and Court
    2. CCA request to Lowell
    3. SAR request if this would assist
    4. Await mediation call and advise that how can I defend my case when no documents have been supplied based on my previous pre action & CPR18 request

    Thanks for you help

    Audiocash

  6. #31
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Hi
    As you haven't pleaded SB in your defence , I think---but this needs confirming, you would either need to get the creditors agreement to amend the defence or ask the courts permission.

    The evidence from the SAR can certainly be used as to the date of the last payment but as to when the default would be is tricky - some agreements spell out when defaults will be issued , and some don't. My capital One credit card spelled out exactly the earliest point when a DN could be sent. If you have to ask the courts permission then there is a cost involved unless you get fee remission.

    As far as you ex is concerned I fully understand why is is probably something you would need to consider very very carefully. Even on our worst days I do not think either myself or my ex would have done something like that and we didn't have children.

    Remember, you could, if they come up with what they need to , make an offer or arrange a payment plan. Sometimes they would rather get 15% now than £1 per month for the next 50 years - depends on your income

    This is what drives me crazy, for such a relatively small sum it is rarely worth paying a lawyer and LiP's are treated , in many cases, less favourably than people who are represented.
    @Diana M @pt2537

    any thoughts?

  7. #32
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Hi,

    No mention of SB in my defence as I had received an agreement from Lucas. My noodle report states the default date that Lowell had placed on the record just under a month to go and it will be SB!!

    I have just read through the supplied agreement and there is no mention of when a default will be applied!

    Yeah if all goes south I will look at that as an option if they come up with any documentation!

  8. #33
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Hi

    Remember that once a claim has been issued the SB 'clock' stops

    It will be interesting what they send you in response to your CCA request

  9. #34
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Quote Originally Posted by warwick65 View Post
    Hi

    Remember that once a claim has been issued the SB 'clock' stops

    It will be interesting what they send you in response to your CCA request
    Ah ok! would this be the same with my last court claim where it was struck out as this is due to go SB later this month?

  10. #35
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Quote Originally Posted by warwick65 View Post
    Yes so dear you couldn't afford me. Nice of you to call me a boy though
    ahh well ive got £2.50 and some trouser pocket fluff, that should be enough shouldnt it? LOL
    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. 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.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.



    You can also follow my blog on consumer credit here.


  11. #36
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Quote Originally Posted by Audiocash View Post
    Ah ok! would this be the same with my last court claim where it was struck out as this is due to go SB later this month?
    As it was struck out things are different or so i am told. Maybe @pt2537 could clarify that or another oracle @charitynjw

  12. #37
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Quote Originally Posted by warwick65 View Post
    As it was struck out things are different or so i am told. Maybe @pt2537 could clarify that or another oracle @charitynjw
    The doctrine of Laches may apply if that is the case, its like the equitable version of limitation, it prevents stale claims being pursued, so if over 6 years has passed then it may well be that you could argue laches applies. So yes its a possibility
    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. 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.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.



    You can also follow my blog on consumer credit here.


  13. #38
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    I read a post by PT on another forum, once a claim has been struck out the claimant would need to ask permission to reinstate a claim. If no substantial new evidence was found it is unlikely. I also read the clock would start ticking again however not sure if it's a new start, a continuation or if the pause while the claim was active would have to be added.

  14. #39
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. 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.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.



    You can also follow my blog on consumer credit here.


  15. #40
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Good Evening all,

    Sorry it has been a little quiet on the post. Thank you for all of your help so far.

    Yesterday I received an email from the court advising for a mediation appointment however there are 3 questions to answer

    Please read the following 3 statements:
    Yes No
    1. For mediation to be successful there needs to be some flexibility from all parties and a willingness to listen and consider each other’s positions. Can you agree to this?
    2. I can confirm that I have enough information about the claim to allow me to enter into negotiations and that I do not require any further evidence from the other party before I can mediate
    3. I am available to mediate on one of the following days
    (You must tick at least 1 of the following, you may tick more than 1 if applicable)


    I can not answer question 2 with a yes as they have still not provided the documentation from my pre action protocol letter and also the CPR 18 request.

    What are the next steps I know I have to answer no to question 2 which will mean that the case is not suitable as they have not supplied the information I requested.

    I have not had a response yet from my CCA request either?

    Is it worth submitting a Unless order to this case?

    Thanks for all of your help

    Kind regards

    Audiocash

  17. #42
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Hi

    First question
    Did you send a cca request off ?

    I know you have not got all the documents but that doesn't mean you can't go to mediation. It may be that you can't be bothered with it all and make a small offer over a period of time that they will accept. Nothing from mediation goes to court.

    personally, if I knew about the account i would go to mediation and see what I could squeeze out of them, doesn't mean i would settle

    Clearly if you have sent the cca request off that gives you a bit more ammo to fight them with.
    Any advice or opinions I offer are based on my experience dealing with personal debt as well as other life events.
    I have no formal legal training
    Any advice is offered without liability
    If in doubt take professional legal advice or contact the CAB

  18. #43
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Quote Originally Posted by warwick65 View Post
    Hi

    First question
    Did you send a cca request off ?

    I know you have not got all the documents but that doesn't mean you can't go to mediation. It may be that you can't be bothered with it all and make a small offer over a period of time that they will accept. Nothing from mediation goes to court.

    personally, if I knew about the account i would go to mediation and see what I could squeeze out of them, doesn't mean i would settle

    Clearly if you have sent the cca request off that gives you a bit more ammo to fight them with.
    Hi,

    Yes sent of a CCA no response as of yet?

    My ex opened the account without my knowledge or agreement. I have had the odd letter here and there but never got to this point before. Lucas credit services sent a credit agreement however the copy is poor and my name looks as though it has been printed in bold and does not match the rest of the document font!!

    In regards to mediation if agree a figure I understand it is a legal agreement however does this mark as a recorded CCJ? in regards to squeeze out of them what would be a good result in your view?

    The debt was sub £300 and has nearly doubled now with charges etc and has stayed at the same value on my credit report since it was logged as defaulted in 2011

    Thanks Warwick
    Last edited by Audiocash; 25th July 2017 at 18:59:PM. Reason: typing to fast

  19. #44
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Hi
    If you settle during mediation there is no ccj however if you set up an arrangement to pay and you are even 1 day late they can apply for a summary judgement. I believe @Diana M therefore recommends making the initial payment double so you are always a month ahead.

    I appreciate how difficult it is with your ex having made the application without your knowledge

    I really don't want to tell you what to do, just give you some options

    Even if you don't agree at mediation, and you were to lose in court, providing the full balance was paid within 28 days no ccj would be recorded

    There are a few options for you

    Hopefully by the time of mediation you could use their non compliance as a big stick

    Its a gamble I suppose , or a calculated risk so i am not the person to offer advice on that - its also not my money or my credit file
    Any advice or opinions I offer are based on my experience dealing with personal debt as well as other life events.
    I have no formal legal training
    Any advice is offered without liability
    If in doubt take professional legal advice or contact the CAB

  20. #45
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    If you do settle at mediation, then its important to have a mediation settlement agreement drawn up, ive done a number of mediations with CEDR who provide the Court of Appeal mediation services, and its important to make sure the terms dont arbitrarily allow judgment to be entered on breach, in one of my settlement agreements i have a clause requiring at least three months arrears and notice to be served on the Defendant before action is taken, so as to protect from judgment.

    Its quite an important thing to make sure you have in place.

    Ill see if i can dig out a CEDR setttlement agreement template

    - - - Updated - - -

    https://www.cedr.com/about_us/modeldocs/?id=3

    Thats the CEDR draft settlement agreement, which may help out here
    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. 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.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.



    You can also follow my blog on consumer credit here.


  21. #46
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Brilliant Thank you for this. Is this something that I can introduce in mediation?

    - - - Updated - - -

    Quote Originally Posted by warwick65 View Post
    Hi
    If you settle during mediation there is no ccj however if you set up an arrangement to pay and you are even 1 day late they can apply for a summary judgement. I believe @Diana M therefore recommends making the initial payment double so you are always a month ahead.

    I appreciate how difficult it is with your ex having made the application without your knowledge

    I really don't want to tell you what to do, just give you some options

    Even if you don't agree at mediation, and you were to lose in court, providing the full balance was paid within 28 days no ccj would be recorded

    There are a few options for you

    Hopefully by the time of mediation you could use their non compliance as a big stick

    Its a gamble I suppose , or a calculated risk so i am not the person to offer advice on that - its also not my money or my credit file
    Thanks Warwick for you advice and guidance.

    I may go ahead fro mediation and see where it goes. Is there any dos and donts on the forum as guidance for mediation?

    Many thanks

    Audiocash

  22. #47
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    My understanding is that a mediator talks to one party then another and back and forth. It is all very informal

    As it is a negotiation , never start with your final offer but maybe set out your stall to start with.
    Any advice or opinions I offer are based on my experience dealing with personal debt as well as other life events.
    I have no formal legal training
    Any advice is offered without liability
    If in doubt take professional legal advice or contact the CAB

  23. #48
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Good Evening all, I spoke with the mediation team today saying I wanted to go ahead even though they had not supplied all of the documents I had received and something very interesting happened the member of the team talked very poorly about Lowell providing paperwork and it seemed as he has encounters with them all the time!!

    He said it will be transferred to my local court and its very likely that mediation will be requested again and it could be that the local judge will throw this out as they are known for not complying with requests for documentation! No response to my CCA request so I have sent it again today!

    Hopefully their non compliance will get this dismissed or they will discontinue

  24. #49
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Hi
    can you prove you sent the first cca to Lowell and they received it?

    if so, I do wonder why you have sent it again although being the worrier I am I do get it.

    One cca request that you can prove was delivered is quite enough and certainly, in general, it is not a good idea to poke the sleeping giant.

    Remember, Lowell, like many a debt purchaser is arrogant and believe they can win because they are who they are.

    If if you read a post by @Joanna C she whipped Lowells backside last Friday with sound legal arguments but who knows what the outcome would have been if a LiP had gone in with a poorer grasp of the law.

    I doubt, under the circumstances you have caused any harm by sending a second cca request

    A friend of of mine once told me, when you decide on an action, always sleep on it and look at it in the cold light of day. I have to say, looking back, the letters I have sent and later regretted , some which may have extended the limitations on a debt are frightening.
    Any advice or opinions I offer are based on my experience dealing with personal debt as well as other life events.
    I have no formal legal training
    Any advice is offered without liability
    If in doubt take professional legal advice or contact the CAB

  25. #50
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    Default Re: Court Claim - defence submitted recieved Directions questionaire

    Hi Warwick,

    No can't prove the first CCA as I have miss placed the tracking! I will check out Joanna C post.

    In regards to my previous post about another claim I defended on my updated Credit report today this has no dropped off the report!

    Will wait to see if anything comes from Lowell . On all of my correspondence I am careful to ensure the language does not extend the limitations of the debt.

    Thank you once again for your help

    Regards

    Audiocash

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