Negotiating with Lowell

[KRIS17]

jaguarsuk thank you.


Below is my draft defence. It took me a while to get my head around it hence the delay. I appreciate the tight timescale but I am looking to post this by Monday afternoon so would be very grateful for some advice/critique beforehand.


In the Northampton County Court Business Centre

Claim No: ***


DEFENCE

1.The Defendant received the claim *** from the Northampton County Court on ****.

2.The Claimants statement of case states that the account was assigned from *** to Lowell Portfolio I LTD on **/**/2015. The Defendant does not recall receiving notice of this assignment.

(The following points 3-5 have been highlighted as I am unsure whether I need all or just part of this?)

3.On **/**/2019 the Defendant sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors LTD. The Defendant requested the Claimant provide copies of: 1. The agreement for a ***(Current Account) under reference *** ('the Agreement’) 2. Notice given to the defendant by *** that the agreement was later assigned to the claimant on **/**/2015.

4.Lowell Solicitors LTD has not sent the required documents to the Defendant.

5.On the [Date] The Defendant sent a formal request for a copy of the original agreement to Lowell Solicitors LTD pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.

6.Under Civil Procedure Rule 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.

7.Lowell Solicitors LTD have refused to provide the Defendant with a copy of the agreement in response to the CPR 31.14 request filed on **.**.2019.

8.In the absence of an agreement Lowell Solicitors LTD is unable to demonstrate offer, acceptance and therefore formation of a simple contract between the Defendant and ***.

9.Pursuant to The Law of Property Act 1925 s.136 Lowell Solicitors LTD are yet to demonstrate the bank fulfilled their obligations as assignor of the alleged debt by issuing a Notice of Assignment, therefore the claimant has yet to demonstrate their legal right to bring the claim.

10.By providing only copies of their Notices of Assignment as assignee, Lowell Solicitors LTD have not fulfilled their obligations of CPR 31.14 regards to the Defendant’s request.

11.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.

12.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.

13.Should the relevant documents not be provided by the Claimant, the Defendant respectfully inquires as to how the Court can rule on the terms of any agreement without being able to see what those terms were, and whether any terms of any alleged contract have been breached.

14.It is denied that the Claimant is entitled to the relief as claimed or at all.

You'll need to file a defence, use the Example Defence to draft one, but where it talks about a credit agreement you need to talk about just the application and terms entered into that form an agreement between you and the bank. You need to include that the claimant have refused to avail you of a copy of the agreement in response to your CPR 31.14 request.

Regarding the above - do I need to add any further information in or is what I've written sufficient?


Thanks in advance for any and all advice provided.

[KRIS17]

Additionally, do the court accept letters sent by Special Delivery? I was told they may not.

And may be a silly question but do I need to add my address and the courts address to the top of the defence? Or do I just post as is given the document contains the reference numbers etc?

[jaguarsuk]

jaguarsuk thank you.


Below is my draft defence. It took me a while to get my head around it hence the delay. I appreciate the tight timescale but I am looking to post this by Monday afternoon so would be very grateful for some advice/critique beforehand.


In the Northampton County Court Business Centre

Claim No: ***


DEFENCE

1.The Defendant received the claim *** from the Northampton County Court on ****.

2.The Claimants statement of case states that the account was assigned from *** to Lowell Portfolio I LTD on **/**/2015. The Defendant does not recall receiving notice of this assignment.

(The following points 3-5 have been highlighted as I am unsure whether I need all or just part of this?)

3.On **/**/2019 the Defendant sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors LTD. The Defendant requested the Claimant provide copies of: 1. The agreement for a ***(Current Account) under reference *** ('the Agreement’) 2. Notice given to the defendant by *** that the agreement was later assigned to the claimant on **/**/2015.

4.Lowell Solicitors LTD has not sent the required documents to the Defendant.

5.On the [Date] The Defendant sent a formal request for a copy of the original agreement to Lowell Solicitors LTD pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.

6.Under Civil Procedure Rule 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.

7.Lowell Solicitors LTD have refused to provide the Defendant with a copy of the agreement in response to the CPR 31.14 request filed on **.**.2019.

8.In the absence of an agreement Lowell Solicitors LTD is unable to demonstrate offer, acceptance and therefore formation of a simple contract between the Defendant and ***.

9.Pursuant to The Law of Property Act 1925 s.136 Lowell Solicitors LTD are yet to demonstrate the bank fulfilled their obligations as assignor of the alleged debt by issuing a Notice of Assignment, therefore the claimant has yet to demonstrate their legal right to bring the claim.

10.By providing only copies of their Notices of Assignment as assignee, Lowell Solicitors LTD have not fulfilled their obligations of CPR 31.14 regards to the Defendant’s request.

11.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.

12.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.

13.Should the relevant documents not be provided by the Claimant, the Defendant respectfully inquires as to how the Court can rule on the terms of any agreement without being able to see what those terms were, and whether any terms of any alleged contract have been breached.

14.It is denied that the Claimant is entitled to the relief as claimed or at all.

Delete Para 5 because this isn't relevant to a bank account. The rest is fine.

Additionally, do the court accept letters sent by Special Delivery? I was told they may not.

And may be a silly question but do I need to add my address and the courts address to the top of the defence? Or do I just post as is given the document contains the reference numbers etc?

You can post it with a cover letter if you like, but the reference number is sufficient. The court accept all types of delivery.

[KRIS17]

jaguarsuk Great, thanks.

Should I include the "Defence and Counterclaim" form sent to me with the Claim Form as well as my defence?

What should I expect to happen next?

[jaguarsuk]

jaguarsuk Great, thanks.

Should I include the "Defence and Counterclaim" form sent to me with the Claim Form as well as my defence?

What should I expect to happen next?

Yes, complete that form and in the box simply mark it "See Separate Defence Document Enclosed."

The court will send a copy of the defence to the claimant and ask them if they wish to proceed and they will, they'll probably send you a load of waffle about the consumer credit agreement again and an offer to settle. You'll both be sent N180 forms (a guide to completing that is linked in my signature) and then you'll have mediation booked.

At the start of the mediation session you will inform the mediator that the claimant has yet to provide the documents requested in your CPR 31.14 request and that'll be the end of mediation.

The court will then send the claimant and you directions for a hearing, theirs will include when they have to pay a hearing fee. Expect a letter telling you they don't have to provide you with a credit agreement again and offering you another chance to settle.

At this point they'll have to decide whether to discontinue or pay the fee, if they pay the fee they're going to have to show you entered into a contract with the original bank and that the original bank met their obligations in assigning the debt at a hearing.

If by some miracle they come up with this information, if they had it you would have it and they wouldn't be trying to confuse things with talk of consumer credit agreements, then you can asses your position right up to walking into court and potentially settle to avoid a CCJ.

There's a lot can happen between now and a hearing, so the main thing is to update here in a timely manner as things progress and seek advice as you go.

[KRIS17]

Here's the latest from Lowell:

"Please find enclosed a copy of the Directions Questionnaire which we have now sent to the Court.

We have agreed to mediation in our Directions Questionnaire which may result in a settlement. If you agree to mediation, please ensure you tick the "yes" box in part A1 of your own Directions Questionnaire.

If you would like to settle this matter directly, our client invites you to put forward an affordable settlement to us either as a single payment or by instalments. An agreed settlement would avoid a hearing or judgement and also the associated costs being added to your debt.

We recommend that you obtain independent legal advice in order to fully understand your rights in relation to this claim. You can instruct a solicitor of your choice or obtain free legal advice from a Citizens' Advice Bureau or other legal advice centre.

Please call ...... if you have any queries or any proposals for settlement".

jaguarsuk I guess I'm just waiting for the N180 now then? There's one completed by Lowell with the letter, do I need one too?

[jaguarsuk]

It is incumbent on each party to serve the other with their documents as well as file with the court, they are simply doing that and you should just file theirs.

In my signature there's a guide to completing yours when the court send it and should provide all you need to return it by the date ordered. Any help you need to fill it in just ask.

[KRIS17]

Hi, quick update, I've received a mediation request letter and I just need to contact them to arrange the date.

However, the letter has unfortunately been misplaced (either put somewhere too "safe" or thrown out in error by my partner!) and I'm not sure of the number to call...... can anyone help??

[jaguarsuk]

Hi, quick update, I've received a mediation request letter and I just need to contact them to arrange the date.

However, the letter has unfortunately been misplaced (either put somewhere too "safe" or thrown out in error by my partner!) and I'm not sure of the number to call...... can anyone help??

Google is your friend...

The current contact details for the service are:

Telephone: 0300 123 4593

Email: scmreferrals@hmcts.gsi.gov.uk

Small Claims Mediation, HMCTS, PO Box 8793, Leicester, LE1 8BN

[KRIS17]

Hi there

Bit of an update. I was unfortunately a day or two late in contacting the mediation service so I couldn't arrange that. Completely my error. Subsequently, I received notice of allocation to the small claims track (hearing), to take place towards the end of next month.*
I have also received communication from Lowell Solicitors, stating the below:


*

" We refer to the above matter and the hearing listed for xxxx.

The xxx account "The Assignor" was opened in your name on or around *xxx 2010. The account relates to a current account. This was a service agreement and not an agreement for credit. It was therefore not regulated by the Consumer Credit Act 1974, a copy of the agreement would have been provided at inception but the Assignor has confirmed a copy is no longer available. Our client will rely on the other evidence available to satisfy the Court as to the existence of the agreement.

Copies of your statement of account have been provided by the assignor and are enclosed for your benefit. These statements cover the period of xxx 2010 until xxx 2014 and evidence the transaction history of the account. For example a payment out in the sum of xxx was made to xxx on xxx 2013. The statements also evidence the payments made towards the overdraft on the current account. The last valid payment of xxx was received on xxx 2014.

The unpaid balance resulted in the assignor terminating the service on xxx 2014. notices of assignment dated xxx 2015 were sent on the assignors behalf and by our client to the address of xxxxxxx. The notices of assignment confirm that the outstanding debt of xxxx had been assigned to our client on xxx 2015, for which you remain liable.

Please note that our client remains keen to resolve this matter amicably and to avoid further legal action which would incur further costs and fees. Our client has therefore instructed us to offer you a Tomlin Order agreement to facilitate an affordable payment arrangement. A Tomlin Order allows both parties to agree to a monthly instalment amount which will put the case proceedings on hold.

.... (further info on Tomlin Order's).....

Please find enclosed the draft Tomlin Order. If you agree to the terms of the draft order please sign in the area above your contact details and insert a reasonable offer of repayment into the schedule.

If you are agreeable to reaching a potential settlement please contact our office to discuss our clients offer further or with your own counteroffer or proposal for settlement."

Advice on this please??

TIA














*

[jaguarsuk]

This absolutely stinks of desperation to me, why would they go to such lengths to explain this to you if they are so confident they will win.

I would write back:



Dear Sirs

RE: Claimant v You - Claim No. XXXXXXXX

I write in response to your letter date XX/XX/2020 regarding the above matter and the hearing listed for xxxx in the X County Court.

At no point has any agreement regulated by the Consumer Credit Act 1974 been requested, this is why a request was made pursuant to CPR 31.14 not the Consumer Credit Act 1974 (CCA 1974) s.77-79 and no statutory fee offered.

It is and continues to be you who has suggested incorrectly at each request that a regulated agreement under the CCA 1974 has been requested when in fact each request has been for a copy of the agreement as listed in your own Particulars of Claim.

As you are aware for two parties to enter into a simple contract (including for services) one party must offer terms and another must accept those terms, consequently for any court to rule on the validity of a contract and/or any breach of it's terms they must be provided to the court.

As you have confirmed 'the Assignor has confirmed a copy is no longer available' then you are unable to demonstrate any of the terms of the alleged contract including any rights to cancel, any penalties for breaches or anything that shall become owing upon termination.

Pursuant to CPR 36 I would like to offer you the opportunity to Discontinue the claim and both parties to bear their own costs.

I'd be obliged if you could confirm within 21 calendar days your acceptance or refusal of this offer.

Your sincerely


You

[KRIS17]

jaguarsuk*Thank you... do I still need to add "Without Prejudice" to the letter?

[jaguarsuk]

I don't think you need to because there's nothing in that letter if they choose to show it the court that helps their cause.

[KRIS17]

Great thanks. What happens if they don't confirm within the 21 calendar days whether they accept or refuse the offer to discontinue the claim? And how likely is it that they could accept this offer?

[jaguarsuk]

Great thanks. What happens if they don't confirm within the 21 calendar days whether they accept or refuse the offer to discontinue the claim? And how likely is it that they could accept this offer?

Nothing, the claim continues and you will argue the points raised in it at a hearing.

They might push on until the hearing fee is due to be paid before discontinuing or even to the close to the hearing, it's hard to say really.