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Lowell Portfolio Ltd v Studly

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  • #31
    Re: Lowell Portfolio Ltd v Studly

    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

    Comment


    • #32
      Re: Lowell Portfolio Ltd v Studly

      Thanks [MENTION=55034]nemesis45[/MENTION] , shall I keep the Deed of Assignment request in the defence though, seeing as that is one of the documents I requested?

      Comment


      • #33
        Re: Lowell Portfolio Ltd v Studly

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

        If so keep it in

        Comment


        • #34
          Re: Lowell Portfolio Ltd v Studly

          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

          Comment


          • #35
            Re: Lowell Portfolio Ltd v Studly

            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.

            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

            Comment


            • #36
              Re: Lowell Portfolio Ltd v Studly

              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

              Comment


              • #37
                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?

                Comment


                • #38
                  Re: Lowell Portfolio Ltd v Studly

                  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

                  Comment


                  • #39
                    Re: Lowell Portfolio Ltd v Studly

                    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!

                    Comment


                    • #40
                      Re: Lowell Portfolio Ltd v Studly

                      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

                      Comment


                      • #41
                        Re: Lowell Portfolio Ltd v Studly

                        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.

                        Comment


                        • #42
                          Re: Lowell Portfolio Ltd v Studly

                          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?

                          Comment


                          • #43
                            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

                            Comment


                            • #44
                              Re: Lowell Portfolio Ltd v Studly

                              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

                              Comment


                              • #45
                                Re: Lowell Portfolio Ltd v Studly

                                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

                                Comment

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