Negotiating with Lowell

[KRIS17]

stick to one thread only otherwise certain aspects can be missed

Thanks Mike, my mistake. I'll enter it here and delete the other thread.

[KRIS17]

Hi all

I've been posting on here for some time now regarding an alleged debt which had been passed over to Lowell (details in this thread).

I've now received a claim form, and really not sure what to do for the best. I'll add the info you need below.

Received a claim? Yes/No: Yes
Issue Date: 05/09/19
Have you Acknowledged the Claim?: No
Total Amount Claimed: approx £1200
Claimant’s Name: Lowell Portfolio I LTD
Solicitors Firm: Lowell Solicitors Limited
Original Creditor: Halifax
Original Debt (eg. Credit card/Loan/Overdraft) : Overdraft

Particulars of Claim: ( Please type out in full excluding names/account numbers/exact amounts ):
1) The defendant entered into an agreement for a Halifax (Current Account) under reference **** ('the agreement)
2) The defendant failed to maintain the required payments and the service was terminated
3) The agreement was later assigned to the claim and on **/**/2015 by bank of Scotland PLC and notice given to the defendant
4) Despite repeated requests for payment, the sum of **** remains due and outstanding.
And the claimant claims
a) The said sum of ****
b) Interest pursuant to s69 County Courts Act 1984 at the rate of 8% per annum from the date of assignment to the date of issue, accruing at a daily rate of £0.***, but limited to one year, being £**.**
c) Costs

Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): No
List any letters you have sent (eg: CCA/ CPR ): This has been going on for quite some time so I am not sure but I dont think CCA or CPR... my previous post will have details.
Any Other Information or Background Details: I had recently requested a number of documents from Lowell, they had sent me notice of assignment but from Lowell and not from the original bank. I had been advised to request this, so I sent them a letter requesting it however the claim form has arrived in the post in the meantime.

Looking to obviously formulate my response to this ASAP. Thanks in advance for any advice.

[MIKE770]

duplicated

[jaguarsuk]

First you need to Acknowledge service stating you'll defend in full, but nothing else and then send Lowell Solicitors Limited a CPR 31.14 Request for copies of:

1. agreement for a Halifax (Current Account) under reference **** ('the agreement)
2. notice given to the defendant the agreement was later assigned to the claimant on **/**/2015 by bank of Scotland PLC

[KRIS17]

jaguarsuk Thanks, when you say I'll defend in full but nothing else, I just want to confirm that means I am not intending to contest jurisdiction?

[jaguarsuk]

jaguarsuk Thanks, when you say I'll defend in full but nothing else, I just want to confirm that means I am not intending to contest jurisdiction?

If you live in England or Wales and the claim is from CCBC Northampton, CCMCC Salford or an English/Welsh County Court no do not contest jurisdiction.

[KRIS17]

jaguarsuk Thanks.

In the meantime, I have received a response to my last letter to Lowell, regarding the notice of assignments they had provided being from the assignee and not the assignors.

They state:

"We can confirm that the Notice of Assignment we have previously provided is satisfactory with our obligations to confirm that we are able to manage this account."

And then goes on to state the County Court Claim was issued to me which requires my response.

Is what they are saying correct or do they in fact need the Notice of Assignment from the bank as well?

[jaguarsuk]

No, there needs to be NoA from the original creditor, s136 of the Law of Property Act 1925 talks about the assignor not assignee.

It's fine, they can't provide it then they can't prove they are the legal owner of the debt. They will say that they are and continue because they think they can scare you into paying up. Just double check that the NoA is definitely just from them.

[KRIS17]

So does this mean either a) they won't actually take me to court because they can't prove they are the legal owner of the debt, or b) they may still take me however as they have not provided the NoA from the original creditor, it is unlikely they will succeed?

I have acknowledged service and am just finalising the CPR 31.14 request. The date in which I am to write I am filing my defence for - would this be the date 28 days from the date of service?

[MIKE770]

They can take you to court but evidence may be later

[jaguarsuk]

So does this mean either a) they won't actually take me to court because they can't prove they are the legal owner of the debt, or b) they may still take me however as they have not provided the NoA from the original creditor, it is unlikely they will succeed?

I have acknowledged service and am just finalising the CPR 31.14 request. The date in which I am to write I am filing my defence for - would this be the date 28 days from the date of service?

33 days from the date on the claim form.

There are too many permutations of what can happen between now and a hearing to list them. Make no mistake they'll be digging like anything now to try to find them.

[KRIS17]

Can anyone advise, I'm unsure what the last paragraph (highlighted in red) in the CPR 31.14 request means. What exactly do I need to enclose a copy of? The page where the guidance for this is states to remove paragraphs in red but it looks as though it needs to stay in?

Sorry if its a silly question. I'm just really quite confused about it and conscious about the fact I haven't sent the letter yet. It's still within the timeframe, however I'd really like to get it posted tomorrow.

TIA

[jaguarsuk]

Can anyone advise, I'm unsure what the last paragraph (highlighted in red) in the CPR 31.14 request means. What exactly do I need to enclose a copy of? The page where the guidance for this is states to remove paragraphs in red but it looks as though it needs to stay in?

Sorry if its a silly question. I'm just really quite confused about it and conscious about the fact I haven't sent the letter yet. It's still within the timeframe, however I'd really like to get it posted tomorrow.

TIA

You need to delete that para because this is a bank account.

[KRIS17]

Hi, I sent the CPR31.14 and have had the following response from Lowell Solicitors:

"Upon review of your account, we can see that you have previously been provided with a statement and a copy of the notice of assignment, further copies of which are enclosed for your reference.

This debt does not arise under and agreement for credit. Therefore, it is not regulated by the Consumer Credit Act 1974. This means that the original creditor is not required to retain a copy of the Agreement, if it was in writing, and therefore we are unable to obtain a copy. If the matter proceeds we may ask the Court to accept there was a contract based on other evidence that may be available.

You should read the Claim pack in full and respond how you deem appropriate. Failure to respond to the Claim within the timescales provided by the court may result in us applying for a CCJ in Default to be entered against you. This means that the CCJ will be entered for payment of an amount stipulated by our client which may not be affordable to you.

Please be aware that you are entitled to seek independent legal advice."

Any thoughts?

[jaguarsuk]

Hi, I sent the CPR31.14 and have had the following response from Lowell Solicitors:

"Upon review of your account, we can see that you have previously been provided with a statement and a copy of the notice of assignment, further copies of which are enclosed for your reference.

This debt does not arise under and agreement for credit. Therefore, it is not regulated by the Consumer Credit Act 1974. This means that the original creditor is not required to retain a copy of the Agreement, if it was in writing, and therefore we are unable to obtain a copy. If the matter proceeds we may ask the Court to accept there was a contract based on other evidence that may be available.

You should read the Claim pack in full and respond how you deem appropriate. Failure to respond to the Claim within the timescales provided by the court may result in us applying for a CCJ in Default to be entered against you. This means that the CCJ will be entered for payment of an amount stipulated by our client which may not be affordable to you.

Please be aware that you are entitled to seek independent legal advice."

Any thoughts?

You have asked them to substantiate their claim and they are not, they have had the chance.

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.

Include a paragraph that in the absence of an agreement the claimant is unable to demonstrate offer, acceptance and therefore formation of a simple contract between you and the bank.

Pose the question how can the court rule on the terms of any agreement without being able to see what the terms were and whether any terms of any alleged contract have been breached.

You also need to state that pursuant to The Law of Property Act 1925 s.136 the claimant is 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. That in providing only copies of their Notices of Assignment as assignee they have not fulfilled their obligations of CPR 31 regards your request.

Once drafted post here for critique with personal information removed.