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

[erudioed]

'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")

Amazing, thank you. OK, I'll be proactive and look into this. If it's ok with you both I'll check back before taking the next step once I'm a little better read on the subject

[Amethyst]

In your defence, did you include anything about the Default Notice lack of ?

[pt2537]

In your defence, did you include anything about the Default Notice lack of ?

im not sure its a material point, one may wish to ask the creditor if his claim is based upon the debtors breach of contract, if it is, and the creditor confirms this is the case in writing, then the debtor would have a darn good exhibit to a witness statement thats for sure.

[Amethyst]

But... they can remedy by evidencing a DN was sent ( and we know they don't seem to need particularly sturdy evidence) so an application seems quite a big risk ... and if it's the particulars struck for not pleading a breach they can rectify by filing new parts ? ( not being awkward just want to be sure we do things best way possible as it's relevant in a shed load of cases with these particulars atm )

[erudioed]

Amazing, thank you. OK, I'll be proactive and look into this. If it's ok with you both I'll check back before taking the next step once I'm a little better read on the subject

Hi Amethyst, no I didn't mention it as per your template here in the forum. I only mentioned the agreement and assignment since they did in the claim

[erudioed]

But... they can remedy by evidencing a DN was sent ( and we know they don't seem to need particularly sturdy evidence) so an application seems quite a big risk ... and if it's the particulars struck for not pleading a breach they can rectify by filing new parts ? ( not being awkward just want to be sure we do things best way possible as it's relevant in a shed load of cases with these particulars atm )

Thank you both for exploring this - reading and following closely. Let me know if you need any further info

[ukc331]

Ripe for a strike out per PRA Group v Doyle

I've received today the exact same claim (obviously different account number and amount) but I dont have any recollection of any account with Vanquis? I have had a quick read through the forums and sent off a CPR 31.14 and a formal request for a copy of the CCA agreement to Lowells. I have also acknowledged the claim and ticked that I intend to defend it all.

Please can you elaborate on asking for a strike out?

Thank you.

[ukc331]

Sorry, I failed to paste the main text I was referring to in my other post. This is the exact wording on the claim I've received.


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 12/12/2017 and notice given to
the defendant.
4) despite repeated requests for payment,
the sum of £537.79 remains due and
outstanding.
And the claimant claims
a) The said sum of £537.79
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 £0.118, but
limited to one year, being £43.02
c) costs

[erudioed]

But... they can remedy by evidencing a DN was sent ( and we know they don't seem to need particularly sturdy evidence) so an application seems quite a big risk ... and if it's the particulars struck for not pleading a breach they can rectify by filing new parts ? ( not being awkward just want to be sure we do things best way possible as it's relevant in a shed load of cases with these particulars atm )

Hello! The court have now sent the questionnaire, so I need to take action. Considering your previous comments about them being able to amend the particulars would you suggest that I just go into mediation? My hesitation is that they haven't yet proved that I took out the credit card by producing the agreement (or as mentioned the default notice).

[pt2537]

Hello! The court have now sent the questionnaire, so I need to take action. Considering your previous comments about them being able to amend the particulars would you suggest that I just go into mediation? My hesitation is that they haven't yet proved that I took out the credit card by producing the agreement (or as mentioned the default notice).

Mediation wont be able to proceed with out you having all the documents first. id say go to mediation but be clear with them if you dont have the documents you need

[erudioed]

Mediation wont be able to proceed with out you having all the documents first. id say go to mediation but be clear with them if you dont have the documents you need

OK brilliant Paul thank you. Do I need to communicate that to the court or to Lowells before the actual mediation somewhere or just wait till it happens then mention it?

[Amethyst]

The court will email you before setting up the mediation appt and ask if you are in a position to mediateso you can say then if you still have no documents.

[erudioed]

The court will email you before setting up the mediation appt and ask if you are in a position to mediateso you can say then if you still have no documents.

thank you Amethyst! OK that's the perfect solution... if they can provide the evidence then I'm happy to proceed with mediation. Great outcome

[erudioed]

Update on this one folks... mediation seemed to be happening but no appointment was offered. Now I've a letter saying:

The small claims mediation team has arranged for your case to be transferred........ has been transferred to the county court hearing centre listed below for allocation...... file will be referred to a procedural judge who will allocate the claim to track and give case management directions. Details of the judge's directions will be sent to you in a notice of allocation.

Any thoughts on what happens next? Still no further evidence presented to me. tia

[erudioed]

THE JUDGE INTERVENED! - now I've had a new 'offer';

We were set for mediation, but the documents still didn't appear then I guess the timeline expired. The judge reviewed the case and ordered that (abbreviated):

- the claimant shall by 4pm 9th may file and serve a copy of the deed of assignment (redacted if necessary) in default of which claim shall be struck out. (this deed of assignment was sent to me the day before the deadline)
- claimant will provide the defendant with the same
- if the claimant complies with 1&2 case shall be allocated to small claims track (ref part 27 cpr)
- the rest of the points refer to the logistics of the hearing in Milton Keynes.

THEN... I received a letter from Lowell saying that they had complied with the directions and are keen to agree a tomlin order with an extra £100 added for court processing fees.

so, the mediation didn't happen, the agreement still has not materialised (unless I've missed it somehow). How come the Judge didn't request the agreement be provided for the case to proceed? Is this normal?

I'd appreciate any guidance on this as the time to act seems to be now.

Many thanks