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defense filed late - Lowell offering Tomlin Order or to strike-out my defence

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  • defense filed late - Lowell offering Tomlin Order or to strike-out my defence

    Hello,

    I have been following your letters procedure with an old credit card debt, which Lowell Solicitors are chasing.

    They sent a Claim letter, which I acknowledged in time and sent off all letters etc.

    They (Lowell) provided everything except the actual agreement, which they intended to rely on in court, but I messed up on the dates to file my defence.
    So, the defence was filed about 2 weeks after the deadline.

    They didn't file anything with the court.

    Today Lowell Solicitors wrote to me saying that I was in breach of CPR 15.4 because my defence was more than 28 days after service of the claim. So they are suggesting a Tomlin order at an additional cost of £100. To me this admits my liability for the debt, which has yet to be proved.

    I still have not acknowledged the debt - truth is I still am unsure of how valid the claim is.

    Is there a way back from this or do they now hold all the cards?

    Thanks G
    Tags: None

  • #2
    Originally posted by erudioed View Post
    Hello,

    I have been following your letters procedure with an old credit card debt, which Lowell Solicitors are chasing.

    They sent a Claim letter, which I acknowledged in time and sent off all letters etc.

    They (Lowell) provided everything except the actual agreement, which they intended to rely on in court, but I messed up on the dates to file my defence.
    So, the defence was filed about 2 weeks after the deadline.

    They didn't file anything with the court.

    Today Lowell Solicitors wrote to me saying that I was in breach of CPR 15.4 because my defence was more than 28 days after service of the claim. So they are suggesting a Tomlin order at an additional cost of £100. To me this admits my liability for the debt, which has yet to be proved.

    I still have not acknowledged the debt - truth is I still am unsure of how valid the claim is.

    Is there a way back from this or do they now hold all the cards?

    Thanks G
    Have you spoken with the Court and seen if Judgment has been entered against you yet? If no Judgment has been entered then ask the Court what the status of the Claim is, then come back and let us know what they say.

    TIME IS OF THE ESSENCE SO DONT DELAY
    I work for Wannops LLP . 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.

    If you need to contact me please email me on Ptilley@wannops.com . My firms initial advice is always free.

    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.

    Comment


    • #3
      Originally posted by pt2537 View Post

      Have you spoken with the Court and seen if Judgment has been entered against you yet? If no Judgment has been entered then ask the Court what the status of the Claim is, then come back and let us know what they say.

      TIME IS OF THE ESSENCE SO DONT DELAY
      Thank you! I checked today and no activity has occurred other than my acknowledgment and defense.

      No judgment has been entered as per MCOL

      Is that the info you need? I can call the court tomorrow to ask about "status" if it isn't on the MCOL site

      I'd love to hear what the options are assuming it is still open..

      Appreciate your help

      Comment


      • #4
        Originally posted by pt2537 View Post

        Have you spoken with the Court and seen if Judgment has been entered against you yet? If no Judgment has been entered then ask the Court what the status of the Claim is, then come back and let us know what they say.

        TIME IS OF THE ESSENCE SO DONT DELAY
        Hi Again, just spoke to the court. They said:


        Nothing has been filed.
        They (Lowell) have 33days in which to respond.

        Where to next?

        Comment


        • #5
          UPDATE. Just about to post off the letter to Lowells explaining that any attempt to enter judgement will be met with application to relief from sanctions (set aside) as the litigant in person asked for docs which weren't provided (agreement).

          Then today a letter arrived from them saying that they've submitted the directions questionnaire to the court with a view to going into mediation. PT2537 could you confirm that this is still the right way forward? I think that I just send the letter anyway or perhaps edit it to include acknowledgement of the directions questionnaire.

          Do I need to respond to the questionnaire for the court's records?

          thanks again

          Comment


          • #6
            Originally posted by erudioed View Post
            UPDATE. Just about to post off the letter to Lowells explaining that any attempt to enter judgement will be met with application to relief from sanctions (set aside) as the litigant in person asked for docs which weren't provided (agreement).

            Then today a letter arrived from them saying that they've submitted the directions questionnaire to the court with a view to going into mediation. PT2537 could you confirm that this is still the right way forward? I think that I just send the letter anyway or perhaps edit it to include acknowledgement of the directions questionnaire.

            Do I need to respond to the questionnaire for the court's records?

            thanks again
            If theyve offered mediation then why not look at that, afterall, sometimes doping a deal with the claimant for a reduced amount thus avoiding costs, and a CCJ can be a beneficial option. Theres no pressure in mediation, if you cant do a deal then the case proceeds to trial, the fact they have gone for this point suggests their previous letter was all hot air and they are treating the claim as if the Defence was filed in time
            I work for Wannops LLP . 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.

            If you need to contact me please email me on Ptilley@wannops.com . My firms initial advice is always free.

            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.

            Comment


            • #7
              You should receive an order form the court asking you to file and serve a directions questionnaire yourself - Lowell tend to send theirs out in advance, before they've submitted it to the court, so there's no huge rush - if you haven't had anything from court in a week then give them a call to see if Lowell have filed theirs. You can opt for mediation on the DQ.

              As Paul says, they are treating the claim as normal, just a defended claim, so I wouldn't be overly concerned about writing to them about it, unless you particularly want to negotiate their tomlin order offer.

              YOu mention that Lowell have provided documents apart from the agreement .... it's for a credit card debt....How much is the claim, how old is the debt etc ? who was the original creditor?
              They've provided what, default notice? assignment notices? statements of account?
              “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

              Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

              Received a Court Claim? Read >>>>> First Steps

              If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

              Find Solicitors offering fixed fees on our sister site - JustBeagle.com

              Comment


              • #8
                Originally posted by pt2537 View Post

                If theyve offered mediation then why not look at that, afterall, sometimes doping a deal with the claimant for a reduced amount thus avoiding costs, and a CCJ can be a beneficial option. Theres no pressure in mediation, if you cant do a deal then the case proceeds to trial, the fact they have gone for this point suggests their previous letter was all hot air and they are treating the claim as if the Defence was filed in time
                Thanks Paul, yes that makes sense. Assuming that they had provided all requested docs then mediation would be the outcome I'd be seeking. My hesitation is that since they still haven't provided the agreement is there any need to admit liability and go down this road atall?

                Comment


                • #9
                  Originally posted by Amethyst View Post
                  You should receive an order form the court asking you to file and serve a directions questionnaire yourself - Lowell tend to send theirs out in advance, before they've submitted it to the court, so there's no huge rush - if you haven't had anything from court in a week then give them a call to see if Lowell have filed theirs. You can opt for mediation on the DQ.

                  As Paul says, they are treating the claim as normal, just a defended claim, so I wouldn't be overly concerned about writing to them about it, unless you particularly want to negotiate their tomlin order offer.

                  YOu mention that Lowell have provided documents apart from the agreement .... it's for a credit card debt....How much is the claim, how old is the debt etc ? who was the original creditor?
                  They've provided what, default notice? assignment notices? statements of account?
                  Thank you.
                  Yes it's a credit card debt with Vanquis for £3600 around 3 yrs old. They've provided everything you mentioned above although I don't have the knowledge or expertise to assess the compliance of the default notices etc.

                  The lack of 'agreement' is the only real bargaining chip I have as far as I can see.

                  Comment


                  • #10
                    Originally posted by erudioed View Post

                    Thank you.
                    Yes it's a credit card debt with Vanquis for £3600 around 3 yrs old. They've provided everything you mentioned above although I don't have the knowledge or expertise to assess the compliance of the default notices etc.

                    The lack of 'agreement' is the only real bargaining chip I have as far as I can see.
                    What about the Default notice? they were shyte from Vanquis if i recall correctly
                    I work for Wannops LLP . 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.

                    If you need to contact me please email me on Ptilley@wannops.com . My firms initial advice is always free.

                    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.

                    Comment


                    • #11
                      Yip have a look at the default notice if you have it - you can post it up ( leave dates and amounts on it, just remove name, address, reference numbers before posting )

                      When you say 3 years old, is that when it defaulted ? any idea when you first opened the account ? If it was an online application, then they are likely to be able to provide the agreement at some point, ( although they do have a penchant for providing some pointless digital application details page rather than an actual agreement....) but it's a good idea to look at things to see if there are any other defence/negotiation issues you can use rather than pinning everything on the section 78 request.
                      “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

                      Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

                      Received a Court Claim? Read >>>>> First Steps

                      If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

                      Find Solicitors offering fixed fees on our sister site - JustBeagle.com

                      Comment


                      • #12
                        Originally posted by Amethyst View Post
                        Yip have a look at the default notice if you have it - you can post it up ( leave dates and amounts on it, just remove name, address, reference numbers before posting )

                        When you say 3 years old, is that when it defaulted ? any idea when you first opened the account ? If it was an online application, then they are likely to be able to provide the agreement at some point, ( although they do have a penchant for providing some pointless digital application details page rather than an actual agreement....) but it's a good idea to look at things to see if there are any other defence/negotiation issues you can use rather than pinning everything on the section 78 request.
                        apologies, I've just checked the paperwork and looked through the documents sent by Lowell. They aren't relying on default notice - only agreement and assignment, which is why I didn't ask for default notices in the request. Sorry for the confusion.

                        Not sure if this changes anything. Here's the text from the claim form:


                        1) The defendant entered into a Consumer
                        Credit Act 1974 regulated agreement with
                        Vanquis under account reference XXXXXX
                        ('the Agreement').
                        2) The defendant failed to maintain the
                        required payments and arrears began to
                        accrue.
                        3) The Agreement was later assigned to the
                        Claimant on 31/10/2017 and notice given to
                        the defendant.
                        4) despite repeated requests for payment,
                        the sum of £3,092.30 remains due and
                        outstanding.
                        And the claimant claims
                        a) The said sum of £3,092.30
                        b) interest pursuant to s69 County Courts
                        Act 1984 at the rate of 8% per annum from
                        the date of assignment tot he date of issue,
                        accruing at a daily rate of £678, but
                        limited to one year, being £247.38
                        c) costs

                        Comment


                        • #13
                          Originally posted by erudioed View Post

                          apologies, I've just checked the paperwork and looked through the documents sent by Lowell. They aren't relying on default notice - only agreement and assignment, which is why I didn't ask for default notices in the request. Sorry for the confusion.

                          Not sure if this changes anything. Here's the text from the claim form:


                          1) The defendant entered into a Consumer
                          Credit Act 1974 regulated agreement with
                          Vanquis under account reference XXXXXX
                          ('the Agreement').
                          2) The defendant failed to maintain the
                          required payments and arrears began to
                          accrue.
                          3) The Agreement was later assigned to the
                          Claimant on 31/10/2017 and notice given to
                          the defendant.
                          4) despite repeated requests for payment,
                          the sum of £3,092.30 remains due and
                          outstanding.
                          And the claimant claims
                          a) The said sum of £3,092.30
                          b) interest pursuant to s69 County Courts
                          Act 1984 at the rate of 8% per annum from
                          the date of assignment tot he date of issue,
                          accruing at a daily rate of £678, but
                          limited to one year, being £247.38
                          c) costs
                          Ripe for a strike out per PRA Group v Doyle
                          I work for Wannops LLP . 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.

                          If you need to contact me please email me on Ptilley@wannops.com . My firms initial advice is always free.

                          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.

                          Comment


                          • #14
                            'Arrears began to accrue' ..... and then ??? .... they seem to have missed a cause of action off the particulars - the account needs to have defaulted ( s87 consumer credit act )

                            PRA v Doyle - http://www.bailii.org/ew/cases/EWCA/Civ/2019/12.html

                            Para 21 ( and rest of the judgment for that matter but 21 says lack of default gives an "unanswerable right to strike out the claim")
                            “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

                            Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

                            Received a Court Claim? Read >>>>> First Steps

                            If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

                            Find Solicitors offering fixed fees on our sister site - JustBeagle.com

                            Comment


                            • #15
                              Originally posted by pt2537 View Post

                              Ripe for a strike out per PRA Group v Doyle
                              ooh, glad I asked now! Thank you.

                              Comment

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