County court /lowells

[The train]

1st last time I used the account would of been 2008.

2nd the last time I believe I paid towards this debt was 2011.

3rd, I sent my defence stating it was statue barred.11/04/2018

4th, sent cca and cpr to creditors and solicitors.

now awaiting reponse...

I know I have not done things the conventional way but I only found this site after I put my defence in,as I got some bad advice...

I am 99.9% sure that it is statue barred. My only doubt is this pound they say Ive paid in 2015.. I will email diane.thanks guys

[jaguarsuk]

I havent used this particular account in 10 years!.. I rang the halifax and they dont even have a record of me ever holding such account even know I did...it was only when Lowells said that I paid a pound to the account,in 2015 that's when I started doubting myself..but now ooking through my statements..I think they are calling my bluff.

Okay, so when Lowell say you have paid a £1 to the account, they don't necessarily mean the actual Halifax account and mean the account you have with them.

You need to get statements of all the bank accounts or credit cards you had at the time of that payment and see if you made a £1 payment on or around that date as a matter of urgency.

I know when you sent the defence in, but do you remember sending a CCA request with a £1 fee around the time they are saying that you made that £1 payment?

This is important as if they have applied that to the account knowing it was for a Statutory Fee then you have not made a payment to the account.

[The train]

I never filed a cca in 2015, only done the cca for the first time on monday, after my defence(yes I know ive done this all in the wrong order)..the account (halifax)they said I paid the pound into in 2015, im sure didnt even exist. I Havent used it or heard from them since 2011..its impossible I paid a £1 into that account. But I just dont know what lowells are up too?... They seem quite sure over the phone I paid a phantom random £1 into the account 29th Jan 2015..Ive checked my statement s and nothing, so Im baffled..thats why I asked do they lie?..

[jaguarsuk]

I never filed a cca in 2015, only done the cca for the first time on monday, after my defence(yes I know ive done this all in the wrong order)..the account (halifax)they said I paid the pound into in 2015, im sure didnt even exist. I Havent used it or heard from them since 2011..its impossible I paid a £1 into that account. But I just dont know what lowells are up too?... They seem quite sure over the phone I paid a phantom random £1 into the account 29th Jan 2015..Ive checked my statement s and nothing, so Im baffled..thats why I asked do they lie?..

Oh they lie and these phantom £1's appear often. Hence why I am saying it's important to get all your statements together for all accounts you had at the time that they say you could have paid from and ask them for proof of how the payment was made.

That convenient £1 stops the debt from being Statute Barred, proving it isn't yours will be crucial to proving it is in fact SB.

As I have said in a previous post, you are at risk of them making an application for summary judgement against you and you have said that you are going to email Diana M , so I would advise if you haven't done so already that email is your immediate action after reading this post.

[The train]

But I dont understand as I said in my defence im saying the debt was SB. I thought they had to prove it wasnt SB?..thats how I read it?..

I only have had one account (natwest)- for the last 8 years and there isnt a £1 payment..ive asked them for a cca, so I dont understand why they could ask for a summary of judgement?

[Diana M]

I'm going to send the CCA and a CPR to lowells and lowell solicitors first thing monday (16/04/18).

Not sure if I doing this all back to front

Yes you are doing things back-to-front but that's better than not doing them at all

I can see there's been some debate on your thread about filing an Amended Defence but I'm not sure what you'd be pleading at this moment in time since you only sent your s77-79 CCA and CPR 31.14 Requests 48 hours ago.

If you file an Amended Defence now (with the court's permission because I doubt Lowells will be motivated to consent) and then new information comes to light you'll have a tricky time attempting to file a third Defence.

More haste less speed.

You've filed a Defence so the ball is in their court to make the next move. Although my firm is proactive with litigation it needs to be done in the right way at the right time. Tactics, tactics, tactics.

One important question is was this overdraft facility renewed annually since 2012 because if so then s 77-79 CCA would apply. I doubt it was (renewed annually) since you believe that it's been 'dormant' in some way since 2011 but I needed to check with you.

Another question is was this an arranged or unarranged overdraft (i.e. you went over your limit without prior permission due to charges/interest etc)?

I can see you rang Lowells after you filed your Defence to ask them when the last payment was made. They gave you a date an amount and this has forced you to reconsider your stance. The burden of proof is on the Claimant so they will have to formally deny (and prove it with evidence) that the debt is not Statute Barred.

My advice is to stay off the phone now that litigation is in progress. Calls will be recorded and it's easy to unintentionally say something which could harm your Defence and used in evidence against you.

Also checking your bank statements for the absence of a payment will not be conclusive evidence in court. They might argue that the payment could have been paid by another method such as a postal order or by a third party acting as your agent such as a DMP or an authorised family member etc.

I'm interest to see in post # 15 that the Halifax deny you ever had an account with them. You need to send a Subject Access Request to see exactly what information they have retained (if any). If they can't provide it to you then how can they provide it to Lowells

I will email diane.

Nothing in my Inbox yet

Di

[jaguarsuk]

But I dont understand as I said in my defence im saying the debt was SB. I thought they had to prove it wasnt SB?..thats how I read it?..

I only have had one account (natwest)- for the last 8 years and there isnt a £1 payment..ive asked them for a cca, so I dont understand why they could ask for a summary of judgement?

They can make an application to the court for summary judgement (a judgement without need to hear the who case), file a witness statement saying you made a payment in 2015 and evidence the payment with a document. If they do that and you don't have the evidence to counter it they could obtain a judgement against you. It doesn't mean they will, but there's a risk they might.

Work on getting all the evidence to defeat them, if you can prove on the balance of probabilities (what's most likely the truth) to a judge that you didn't make that £1 payment and the debt is SB then you win. Credibility and evidence is what will prove it.

As Di says, Halifax denying you ever had an account could unlock all sorts of avenues to you and so sending an SAR quickly (today) is necessary as they have 40 days to comply with it. Here's a guide on what an SAR is: Subject Access Request Letter

[Diana M]

I know I have not done things the conventional way but I only found this site after I put my defence in,as I got some bad advice...

There is no such thing as a 'conventional way' since each court claim is unique to the Defendant's situation.

Template letters may get things started but things need to be done in a more bespoke way as proceedings continue in order to have a successful outcome.

yes I did say it was SB on my defence. I copied a template letter online.

I've not seen the Particulars of Claim or the Defence you filed based on an internet template so I'll give you my opinion when I have.

Di

[Diana M]

if you can prove on the balance of probabilities (what's most likely the truth) to a judge that you didn't make that £1 payment and the debt is SB then you win.

I doubt 'on the balance of probabilities' would be enough for a DJ to dismiss this claim.

We find judges favour the Claimant over the Defendant's version of events. They see Defendants as debt-avoiders looking for loopholes in the law.

Also there are more legal arguments when it comes to Statute Barred other than the last payment date. Too much emphasis is placed on the last payment.

Some current accounts can remain 'live' for years even if no funds are paid in.

The Final Demand and the remedy date may be one Cause of Action - there are many more potential legal arguments to battle in court.

Di

[The train]

Sorry Jaguar..who am I sending the SAR letter too?

Jay

[jaguarsuk]

Some current accounts can remain 'live' for years even if no funds are paid in.

I used to work for a bank, we're talking 15 or so years ago now and at the time I remember there being "dormant" accounts that had been open and unused for decades.

Once the bulk transfer of data was migrated to database as opposed to appearing on fiche or ledgers in the 70's & 80's the scrutiny of accounts was lost to act for prompt closure and in the early 2000's when I was briefly in banking the move to "Retail Banking" meant it just became a task seen as not profitable hence not required.

The banks essentially forgot that haemorrhaging money in unpaid debt was a false economy when replacing it with new debt or insurance products to earn income and just focused on that new income too much. It's a legacy still in the industry and will probably never change now it's become cultural.

[jaguarsuk]

Sorry Jaguar..who am I sending the SAR letter too?

Jay

Halifax

[Diana M]

I used to work for a bank, we're talking 15 or so years ago now and at the time I remember there being "dormant" accounts that had been open and unused for decades.

Hence the reason why I said the OP cannot rely solely on the last payment date for Statute Barred purposes.

Di

[The train]

Hi,

Guys I know it's the weekend, so I guess you will all be enjoying the weather, but I received a letter from Lowell's . It's a direct questionaire (small claims track)..can someone explain this next stage of the process? J

[warwick65]

Hi

So you fill in the DQ

Agree to small claims

Say which court you would like it hearing at and why- this is usually the closest but maybe the closest is not the easiest to get to

No expert witnesses

say yes to mediation

Number of witness =1 ( that's you)

Make sure you include dates you are unavailable - personal tip- if you are going on holiday add ay lest a day before and a day after. I didn't and landed at 11.30 at night and had a hearing scheduled for 10am the following morning- if my flight had been late I would have been stuffed. Luckily for me Joanna C sorted that out while I was away


Next will be hearing about mediation- might be a time to sort something out if it seems right for you