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

[erudioed]

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

[pt2537]

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

[erudioed]

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

[erudioed]

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?

[erudioed]

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

[pt2537]

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

[Amethyst]

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?

[erudioed]

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?

[erudioed]

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.

[pt2537]

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

[Amethyst]

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.

[erudioed]

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

[pt2537]

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

[Amethyst]

'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")

[erudioed]

Ripe for a strike out per PRA Group v Doyle

ooh, glad I asked now! Thank you.