DISCONTINUED Received Court Claim Form from Lowell - T Mobile / EE

**Claireb5** · 27th January 2018, 10:39:AM

Received a claim? Yes
Issue Date: 24 Jan 2018
Amount approx: £590.38 (court fee £60, Legal rep costs £70) TOTAL £720.38
Claimant: Lowell Portfolio Ltd
Solicitor: Lowell Solicitors Ltd
Original Creditor: EE Limited (formerly T-Mobile UK Ltd)
Particulars of Claim:
1) The defendant entered into an agreement with EE Limited (formerly T-Mobile UK Ltd) under account reference XXXXXXXXX ('the agreement').
2) The defendant failed to maintain the required payments and the service was termintated.
3)The agreement was later assigned to the claimant on 30/06/2014 and notice given to the defendant.
4) Despite repeated requests for payment, the sum of £546.65 remains due and outstanding.
And the climate claims
a)The said sum of £546.65
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 £0.120, but limited to one year being $43.73
c)Costs
Is the debt Statute Barred? No
List any letters you have sent: None
Any Other Info: Above

I wonder if anyone can help me....since posting above I have been reading all night and think I understand the process a bit more now. I have today logged into moneyclaim.gov and defended the claim.

I realise now that I should really be entitled to information from Lowell about how this debt is made up (i.e., termination fees, charges, airtime, handset) as I really can't remember the details as it was around 5.5 years ago.

Can anyone confirm if I am correct that I should send a request for documents mentioned on their particulars of claim under CPR 31.14 to Lowell, so basically I need to ask for the agreement, the assignment to Lowell and how the sum is made up? Do I also ask if a handset was part of this and are mobile handsets under CCA? I realise I probably won't receive a reply from Lowell so is it worth asking? Also, is it 14 days from today that I have to write a defence? Anya advice on that if Lowell don't reply?

Thanks so much in advance any advice would be very appreciated

**R0b** · 27th January 2018, 11:21:AM

Hello,

Is this the only correspondence that you received from Lowell? You should have received a letter before claim prior to the court claim, or did you ignore it? To answer your questions in the same order:

1. Can you contact Lowell to make payment?
You can and ask them to withdraw the claim but they will probably want their application fees and costs.

2. Will you get a CCJ if you pay Lowell right now?
No, if you make the payment right now which is the sums being claimed, then you won't get a CCJ. If you fail to acknowledge the claim either by indicating your intention to defend or admit the claim then Lowell can apply for default judgment after 19 days from the date of the claim form.

3. Is there any defence?
The onus is on Lowell to prove their case and on many occasions claims have been discontinued usually due to lack of evidence and/or proper assignment of the debt. Your defence, in the absence of it being statute barred, might be to prove that the amount is owed, proof that the debt was assigned to Lowell, if you didn't receive notice of the assignment that would be another defence and finally, you might have a defence of the contract having been frustrated i.e. T-Mobile couldn't provide the service and so the contract was deemed terminated without further liability.

4. Should you borrow the money to pay this off?
This is something you need to decide yourself based on your current circumstances though you have already indicated you can't afford to borrow the money. Court claims from start to finish in the County Court can take up to 6 months or longer. if you were to save a little each month could you afford to make the fully payment by that time?

In my view, it is always prudent to acknowledge the claim and then tick the box that says you intend to defend the claim. This is not only to preserve your position (meaning you can still settle the claim whilst proceedings are ongoing and give you time to think of your options i.e. come to a settlement without a CCJ on your record and the claim is stayed providing you meet the repayments - this is known as a Tomlin Order).

The second point is to not give Lowell an easy ride, in that they will have to do some work to prove that the debt is correct, it is owed, and they are entitled to it. Bear in mind that debt purchasers and tend to try and do as little as possible whilst churning out bulk claims in order to keep costs down and profits up so it is entirely possible that they might discontinue at some stage if the work becomes too much or they don't have the information they need. It might also be wise to send a subject access request to EE to see what records they hold about you on the debt and anything else like your complaints and notes about the no signal as that can be used to your advantage and assist any defence you might have.

Just a quick overview of my thoughts and I am sure others will give their opinion and fill in any gaps i've missed.

**Claireb5** · 27th January 2018, 13:31:PM

Thank you so much for the reply your information is so helpful

I don't believe that I received letters from Lowell about this but I have moved around a bit over the past few years and aren't the most organised with mail and record keeping (until now - I certainly will be in future!).

I've acknowledged the claim online and ticked that I intend to defend the claim. I'd really just like to see how the debt is made up and what I actually owe them for, so maybe I can save some money each month and pay after 6 months or so of saving (hopefully it will take a while to progress through the process).

If Lowell don't reply or prove what I owe then maybe I can submit a defence saying that I accept a relationship existed with T-mobile however I do not recall or know what the debt relates to? I will try EE and see if they hold ay records to back up my initial dispute.

I've just finished my letters CCA (as I don't know if a handset was part of the agreement) and CPR request.

In the CPR request I am asking Lowell for details of:

1. Agreement
2. Assignment
3. Statement of sum

I hope that's correct?

Thanks again for the advice

**Diana M** · 27th January 2018, 16:05:PM

Once you've filed a Defence (deadline 33 days after the claim Issue Date) the court will send it to the Claimant advising them that they have 28 days to inform the court if they intend to continue with the proceedings.

If the Claimant doesn't inform the court of their intention then the claim automatically becomes stayed (a pause button on the proceedings).

If the Claimant informs the court that they wish to continue with the proceedings you will be sent a Directions Questionnaire by the court to complete. On that form you will be given the opportunity to tick the box for free telephone Mediation where you can attempt to negotiate a settlement of the claim which is not a CCJ but will be legally binding on both parties.

Di

**Claireb5** · 29th January 2018, 10:57:AM

Diana M

Hi Di

Oh thank you so much for that information - I've been struggling to understand the next steps (such as what you explained above), so that is really helpful and reassuring. Would there be more court fees associated (added on to my debt) at that stage of the proceedings, or do extra fees come later on in the process?

Thanks again

Claire

**Claireb5** · 6th February 2018, 21:19:PM

Hi guys

I'm preparing my defence, so far in anticipation that Lowell won't bother to reply to the CPR 31.14 and any potential CCA (as I don't know what the debt relates to or if a handset was included etc). It's a week since they received my requests and nothing so far. I wonder if anyone can have a look over my defence to see if this all makes sense? I undertand *most* of what I've said as I've been reading none stop on here for days now, thanks to all the great advice and information from members - it's just some of the Acts that I don't fully understand and hope are all correct? Any help would be appreciated.

1.The Defendant contends that the particulars of claim (xxxxxxx) are vague and generic in nature.

2.The Defendant accordingly sets out its case below and relies on CPR 16.5(3) in relation to any particular allegation to which a specific response has not been made.

3.Paragraph 1 is accepted insofar that a relationship did exist between the Defendant and T-Mobile UK LTD however, I cannot recall this agreement and I am unaware of what debt the Claimant refers to.

4.Paragraph 3 is denied. The defendant is unaware of any legal notice of assignment or Notice of Assignment pursuant to Law and property Act 1925 Section 136(1).

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

6.I have requested information pertaining to the Claimants claim by a request for inspection of documents mentioned in the claimant’s particulars of case under Civil Procedure Rule 31.14 sent to LOWELL SOLICITORS LIMITED on 30.01.2018 and received on 31.01.2018.

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

8.I have requested a copy of any Consumer Credit Agreement from the Claimant as is my entitlement under sections 77-79 of the Consumer Credit Act 1974, request sent on 30.01.2018 along with the statutory £1 fee, the claimant received on xxxxxxx?. The Claimant has failed to respond.

9.The Claimant has to date failed to provide any such documentation as detailed on the particulars of claim.

10.I have asked the Claimant to notify me in writing if they require more time in which to comply with this request to provide required documents for inspection, to enable me to properly assess my position with regards the claim. I requested the Claimant to notify me before the time for compliance with this request has expired.

11.The Claimant has failed to respond.

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

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

14.Therefore the defendant denies owing any money to the Claimant and the Claimant is put to strict proof to,

a) Show how the Defendant has entered into an Agreement;
and
b) Show how the Defendant has reached the amount claimed for;
and
c) Show how the Claimant has legal right, either under statue or equity to issue a claim.

15.As per Civil Procedure Rule 16.5(4) it is expected that the Claimant prove the allegation that the money is owed.

16.Notwithstanding the above should the alleged amount claimed include an early termination charge(s) amounting to the entire balance of the remaining contract. OFCOM guidance states that any Early Termination Charge that is made up of the entire balance if the remaining contract is unlikely to be fair as it fails to take into account the fact that the provider no longer has to provide and pay for their service.

17.On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act 1925.

18.By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Statement of Truth
The Defendant believes that the facts stated in this Defence are true.
Signed ________________________________
Dated ________________________________

**Claireb5** · 6th February 2018, 22:18:PM

rob Diana M Amethyst

Any advice - Thank you in advance

**R0b** · 7th February 2018, 08:31:AM

I will try to take a look today and give some feedback when I can if no one else does before hand.

**Claireb5** · 7th February 2018, 20:45:PM

Originally posted by R0b View Post

I will try to take a look today and give some feedback when I can if no one else does before hand.

Thank you, would be really appreciated

**R0b** · 9th February 2018, 09:03:AM

Hi ClaireB5,

I've finally had a look at your defence (though a quick skim) and there's a few points I would feed back to you.

1. Whenever you draft a defence, you always write in the third person e.g. 'The Defendant / The Claimant' unless you define within the defence the parties and their names. For example, you could say 'The Claimant ("Lowell")' and then refer to The Claimant as Lowell throughout the defence.

2. Your defence needs to flow like a story so the judge is able to better understand what reasons you have for not paying the debt, plus persuading him/her to find in your favour. I am a fan of having headings and sub-headings in the defence as it makes it easy to navigate and alerts the reader as to what the following paragraphs relate to.

3. Because Lowell have numbered their paragraphs, you have to respond to each of them as to whether you admit, deny, or make no admissions (that is putting Lowell to proof). Your defence does not do that but in some circumstances, the particulars of claim are not always adequate to respond in the correct manner. In which case you could set out the background fully in your defence and gives you an opportunity to get your side across.

4. Consistency is key. I can see you refer to LOWELLS SOLICITORS LIMITED in capitals and then T Mobile UK LTD in other areas. You need to keep it consistent and you should never really refer to someone in full capitals. First letter as a capital will suffice, for example Lowell Solicitors Limited or T Mobile UK Limited.

5. I can see from your original post that the problem that you stopped paying because of signal issues but then you chosen to put Lowell to proof that the contract was entered into. If they can show payments were made to T Mobile at the time then that argument would fall apart. You might want to consider admitting to entering into the agreement but denying liability on the basis of frustration of contract / non-performance by T-Mobile due to signal issues.

I've attached an example defence so you can see how it should be set out. The reason why it is set out like this is because the MCOL service has a restricted number of characters you can use as your defence and more often than not, defences exceed the character limit. So you have to set it out like the attached and then email it over to ccbcaq@hmcts.gsi.gov.uk and you will usually get an automatic response (make sure to put the parties names and the claim reference numeber).

However, I would say that the defence is not a complete one and if you wish to use it as a starting point then you will need to adapt it to suit your situation as I have only produced it on the limited information you've provided so far. So you should check it for accuracy reasons as you don't want to trip yourself up if it does get to court.

I think you would also be wise to send a Subject Access Request to EE Limited and see if they still have anything from the T-Mobile days, particularly the contract terms you would have signed as that might be helpful point when arguing about non-performance or frustration as well as any other points you want to raise.

Any questions, feel free to ask.

Attached Files

Defence Example - ClaireB5.doc (67.0 KB, 1 view)

**Claireb5** · 9th February 2018, 14:33:PM

Hi Rob

This is absolutely amazing advice thank you so much - I'm going to go through each step you've advised here (all brilliant points) and get to work on amending my defence using the example defence you've so kindly attached. I really can't thank you enough! This is beyond helpful and I'll keep updated.

I have sent the subject access request to EE, I felt (from reading about other peoples experiences) that because it's been around 5.5 years that they wouldn't hold any information still and therefore I feel really unconfident about arguing that line of defence as I can't recall all the details of what happened with my dispute with Tmobile. I will see if they come back with any information from that dispute as that would be great. Fingers crossed!

Thanks again

Claire

**R0b** · 9th February 2018, 16:46:PM

No problem,

Feel free to combine the example defence with what you've already drafted yourself and see how it flows. For example, when you talk about the notice of assignment you could include the part about Lowell having the legal right to bring a claim in its own right as opposed to being an equitable assignee which requires the legal owner to issue a claim and add the equitable assignee as a party to the claim.

If there's anything you can't remember about the agreement or what is being alleged by Lowell, then all you need to put in your defence is something like "The Defendant is unable to recall / The Defendant makes no admissions as to [insert details] ... The Defendant requires Lowell to provide evidence of the matters alleged."

I've already spotted a few errors in the defence so be careful and proof read it and if you need any further feedback post up your revised defence for critique.

Assuming you have acknowledged the claim on MCOL, you have 33 days from the 24 January so your defence is not due until 26 February which is plenty of time to get it right.

As for the SAR request, EE aren't great as I've had a couple of run-ins with them and they apparently don't keep their paper contract after 3 months which is crazy but nevermind. The point of the SAR is to enable you to get as much information as possible about the background and what was actually put on your account. The notes might be of crucial importance which you could potentially use as evidence. Most companies these days have a policy of retaining records for at least 6 years after the end of the contract (because the limitation for bringing contract claims is 6 years from the date of breach occurring).

**Claireb5** · 9th February 2018, 21:09:PM

Thanks again, more brilliant suggestions - also, helpful to know about your experience with EE too! Again thanks so much, my defence is already starting to take shape and is looking so much more professional and logical in order.

Claire

**Claireb5** · 9th February 2018, 21:55:PM

rob

Sorry, would I remove part (c) from the paragraph below, if under the agreement section later in my defence I'm saying that "It is accepted that a relationship did exist between the Defendant and T Mobile UK Limited however, the Defendant cannot recall details of this agreement and is unaware of what debt the Claimant refers to. The Defendant requires the Claimant to provide evidence of the matters alleged" as I'm not denying every point in the particulars of claim? Many thanks

1. In this Defence:
(a)any allegation which is not admitted by the Defendant, the Claimant (“Lowell”) 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.

DISCONTINUED Received Court Claim Form from Lowell - T Mobile / EE