Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

[fishoutofwater]

Re: Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

Hi
Responding to your PM as per forum rules

In my opinion, if you did not have a credit card then say that however if you did and deny it at this stage which is later shown to be untrue , say by the production of a signed agreement, how would that look? If I were the Judge I might think, well they lied about that so what else have they lied about.

Clearly I have no idea if you did have a credit card with them

Of course if your credit card was with BOS and they have lumped the whole thing under HBOS then you could , maybe get away with acting slightly dippy and saying - I didn't have a card with Halifax , I didn't know Halifax and BOS were the same although that might be a bit tricky (playing the fool)

Just my thoughts @Diana M - yeah/nay?

The other thing is, in your defence, do you know what the legislation is saying, one problem is that the revised version of the The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.is not available online and is hidden behind a paywall of Westlaw. What is available online is grossly out of date

Hi Warwick. Thankyou for your response.

I havn't the foggiest idea what the legislation is saying. I've copied and pasted an example defence and am trying to work my defence on it. I know very little about consumer legalities and such. Just trying to make the best of a crap situation. And failing badly it seems. I'm almost out of time and I dunno. Maybe i should just give them a call and try and settle at a lower amount.

[warwick65]

Re: Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

I am really not an expert but was trying to warn you of potential pitfalls.
[MENTION=6]Amethyst[/MENTION] can you help as the forum is off tomorrow and [MENTION=87380]Diana M[/MENTION] doesn't appear to be online

You could cluck on Diana's name and pop her an email
I think it's di@joannaconnollysolicitors.co.uk but on my phone now so can tell check.

[warwick65]

Re: Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

Do not make an offer without exploring possibilities. Even the basic defence you have is worth it if time is pressing. We'll that's my thoughts

[fishoutofwater]

Re: Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

I am really not an expert but was trying to warn you of potential pitfalls.
@Amethyst can you help as the forum is off tomorrow and @Diana M doesn't appear to be online

You could cluck on Diana's name and pop her an email
I think it's di@joannaconnollysolicitors.co.uk but on my phone now so can tell check.

My last day for getting in my defence falls on the 20th [today]. Would that mean I have until Monday to get in a defence. Not sure if today counts as a working day? That gives me a little more time to look into it.

I really appreciate the potential pitfall warning, Warwick. It stops me from making a fool out of myself by sending off a ridiculous defence. I am grateful

[warwick65]

Re: Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

4pm on Monday I believe.

[warwick65]

Re: Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

I suggest you google s78 cca 1974

and S88 cca 1974.

In your defence which is OK I would alter where it says s884(a) to just a more generic S88. "That covers everything.

[fishoutofwater]

Re: Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

4pm on Monday I believe.

Good to know. Thanks.

[warwick65]

Re: Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

Do you by any chance have the original agreement or the original default notice?

Do you know when the account was defaulted

Did you send the s78 request and cpr31. 14 request.

[MIKE770]

Re: Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

4 p.m. Monday is the deadline if normal date falls on a weekend

[fishoutofwater]

Re: Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

Do you by any chance have the original agreement or the original default notice?

Do you know when the account was defaulted

Did you send the s78 request and cpr31. 14 request.

I have no original agreement and have never received a default notice by letter. I have checked my credit files and according to the info on it my a account defaulted in Febuary 2016. 3 months after being assigned to Lowells. According to the court claim form.

I sent the cca and cpr requests out on friday.

[warwick65]

Well
I would just use that template defence with the amendments I suggested

The date on your credit file is not related to the date the account was defaulted

I think you may need to send a Subject Access Request to Halifax which will tell you when and if a default notice was issued . It won't arrive in time for the defence but it will probably arrive in time for your Witness statement

It really is vital you get some defence in

Looks like you are working on three basic things
1) No response to the CCA request
2) No default notice- compliant or otherwise
3) No assignment


In case it helps I won my case on the fact they were unable to prove a default notice had been sent - the Judge believed me when I told him I had records of all communications and had never received anything

[fishoutofwater]

Well
I would just use that template defence with the amendments I suggested

The date on your credit file is not related to the date the account was defaulted

I think you may need to send a Subject Access Request to Halifax which will tell you when and if a default notice was issued . It won't arrive in time for the defence but it will probably arrive in time for your Witness statement

It really is vital you get some defence in

Looks like you are working on three basic things
1) No response to the CCA request
2) No default notice- compliant or otherwise
3) No assignment


In case it helps I won my case on the fact they were unable to prove a default notice had been sent - the Judge believed me when I told him I had records of all communications and had never received anything

Just read your thread of your own case. Chuffed to bits for you mate. It must have been very stressful.

I will send the SAR tomorrow.

So here's my amended defence. Can't think of anything else to add to it really.


1. I received the claim xxxxxxxxxx from the Northampton County Court on 21^st December 2017.

2. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3. This claim appears to be for a Credit agreement regulated under the Consumer Credit Act 1974.

4. The defendant has no recollection of ever having entered into an agreement with HALIFAX for provision of Credit and until such time the claimant can disclose the necessary documents that this claim relies upon the claimants claim is denied.

5. The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

6. The Claimants statement of case states that the account was assigned from HALIFAX to LOWELL PORTFOLIO I LTD on 2/11/2015. The Defendant does not recall receiving notice of this assignment.

7. It is denied that HALIFAX served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88 Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

8. On the 19/1/2018 I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to LOWELL SOLICITORS. I requested the Claimant provide copies of the Agreement, Assignment, Proof of written notice.

9. LOWELL SOLICITORS has not sent any of these documents to me.

10. On the 19/1/2018 I sent a formal request for a copy of the original agreement to LOWELL PORTFOLIO I LTD pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

11. The Claimant has failed to comply with s 78(1) Consumer Credit Act 1974 and by virtue of s78(6) Consumer Credit Act 1974 cannot enforce the agreement.

12. 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.

13. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

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

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



I appreciate and am very grateful for your help and advice Warwick and to everyone that has helped me in this thread. I'm going to send it later this evening just in case anyone else wants to add anything or point anything out.

Cheers.

[R0b]

Hello

This might be a bit late (hopefully not) but a few drafting points and some other suggestions to include in the defence.

* Don't use the word 'I' but instead say the Defendant
* Don't use capital letters so where you references Lowell Solicitors and Lowell Portfolio and Halifax I would put them in lower case, not all capitals e.g. Lowell Solicitors and Halifax and Lowell Portfolio etc.

Additions to include as part of your defence

1. I received the claim xxxxxxxxxx from the Northampton County Court on 21^st December 2017.

I don't think this has any particular relevance, do you?

2. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

You may wish to cover this off in slightly more detail. For example, you could say:

1. In this Defence:

(a) any allegation which is not admitted by the Defendant, the Claimant is required to prove;

(b) all allegations that are not specifically pleaded to by the Defendant are denied; and

(c) entirely without prejudice to the foregoing, the Defendant denies each and every allegation in the Particulars of Claim.

4. The defendant has no recollection of ever having entered into an agreement with HALIFAX for provision of Credit and until such time the claimant can disclose the necessary documents that this claim relies upon the claimants claim is denied.

You could expand this by saying something like:

"The Defendant denies that he was in breach of the agreement. The Defendant does not recall of ever entering into an agreement with Halifax for the provision of credit or otherwise on the date alleged or at all and the Defendant requires the Claimant to prove that such an agreement was entered into."

7. It is denied that HALIFAX served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88 Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

They have not actually alleged in the Particulars of Claim that a default notice was served. You could, for example, use the alternative argument to the point about never entering into the agreement you made in point 4 such as the following:

"If (which is denied), contrary to paragraph X, the Defendant did enter into an agreement with Halifax and was in breach of the same, then the Defendant will say that the breach is not enforceable.

PARTICULARS

(a) Contrary to s.87(1) of the Consumer Credit Act 1974 (the "CCA") the Claimant failed to serve on the Defendant any default notice;

(b) Contrary to s.88 of the CCA and Regulation 2(2)(a) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ("the Regulations"), the default notice served on the Defendant did not state that it was served under s.87(1) of the Act;

(c) Contrary to s.88 of the CCA and Regulation 2(2)(b) of the Regulations, the default notice did not contain the information set out in paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 of Schedule 2 to the Regulations;

(d) Contrary to s.88 of the Act and Regulation 2(6) of the Regulations, the wording of the default notice failed to reproduce the wording of the Schedule to the Regulations without alteration or addition;

(e) Contrary to s.88(2) of the CCA , the default notice specified a date for remedying the breach which was less than 14 days after the date of service of the default notice; and

(f) Contrary to section 136 of the Law of Property Act 1925, no notice of assignment was served on the Defendant. The assignment was therefore an equitable assignment not a legal one. Accordingly, the Claimant has no legal right to enforce the agreement in its own name.

(g) Contrary to s.78(1) of the CCA, the Claimant failed to provide a copy of the agreement."

12. 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.

If you use the wording in the second point I made, then you won't need the above.

That's just a quick starting point, there's probably other things that could be removed/amended but including some or all of the above beefs up your defence somewhat and quantifies exactly why they can't enforce their claim.

[fishoutofwater]

Hello

This might be a bit late (hopefully not) but a few drafting points and some other suggestions to include in the defence.

* Don't use the word 'I' but instead say the Defendant
* Don't use capital letters so where you references Lowell Solicitors and Lowell Portfolio and Halifax I would put them in lower case, not all capitals e.g. Lowell Solicitors and Halifax and Lowell Portfolio etc.

Additions to include as part of your defence


I don't think this has any particular relevance, do you?



You may wish to cover this off in slightly more detail. For example, you could say:

1. In this Defence:

(a) any allegation which is not admitted by the Defendant, the Claimant is required to prove;

(b) all allegations that are not specifically pleaded to by the Defendant are denied; and

(c) entirely without prejudice to the foregoing, the Defendant denies each and every allegation in the Particulars of Claim.



You could expand this by saying something like:

"The Defendant denies that he was in breach of the agreement. The Defendant does not recall of ever entering into an agreement with Halifax for the provision of credit or otherwise on the date alleged or at all and the Defendant requires the Claimant to prove that such an agreement was entered into."



They have not actually alleged in the Particulars of Claim that a default notice was served. You could, for example, use the alternative argument to the point about never entering into the agreement you made in point 4 such as the following:

"If (which is denied), contrary to paragraph X, the Defendant did enter into an agreement with Halifax and was in breach of the same, then the Defendant will say that the breach is not enforceable.

PARTICULARS

(a) Contrary to s.87(1) of the Consumer Credit Act 1974 (the "CCA") the Claimant failed to serve on the Defendant any default notice;

(b) Contrary to s.88 of the CCA and Regulation 2(2)(a) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ("the Regulations"), the default notice served on the Defendant did not state that it was served under s.87(1) of the Act;

(c) Contrary to s.88 of the CCA and Regulation 2(2)(b) of the Regulations, the default notice did not contain the information set out in paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 of Schedule 2 to the Regulations;

(d) Contrary to s.88 of the Act and Regulation 2(6) of the Regulations, the wording of the default notice failed to reproduce the wording of the Schedule to the Regulations without alteration or addition;

(e) Contrary to s.88(2) of the CCA , the default notice specified a date for remedying the breach which was less than 14 days after the date of service of the default notice; and

(f) Contrary to section 136 of the Law of Property Act 1925, no notice of assignment was served on the Defendant. The assignment was therefore an equitable assignment not a legal one. Accordingly, the Claimant has no legal right to enforce the agreement in its own name.

(g) Contrary to s.78(1) of the CCA, the Claimant failed to provide a copy of the agreement."




If you use the wording in the second point I made, then you won't need the above.

That's just a quick starting point, there's probably other things that could be removed/amended but including some or all of the above beefs up your defence somewhat and quantifies exactly why they can't enforce their claim.

Hello Rob. Thankyou very much for your help.

To say I am gutted is an understatement. If only I had a time machine. Unfortunately I sent my defence off last night through MCOL. As I wasn't sure if i would have made the 4pm deadline today due to various outdoor activities.

I guess I'll just have to see what I get back from the cca and cpr requests, If anything.

Hmm.

[warwick65]

I wouldn't beat yourself up as you could use some of the points raised when you get to your witness statement

R0b However, surely if you are saying there was no DN then how can you argue it did not say it was served under S87(1) so to speak

No DN= no DN end of story

If they produce one and it doesn't comply then surely that would be the time to say- I didn't receive one but the one that they produced is wrong because xyz

Be careful when looking at the regulations as what is listed online is the original without the amendments, you need to check the amendments page to see what changed - for example in 2005 ( I think) there was a new SI that added the need for the S87(1) DN to be a paper copy - so one by email will not cut the mustard