** Discontinued ** Lowell solicitors ltd Vs ME!

[Fey92]

Hi everyone, been browsing these forums for a while now. But only just made an account as I'm seeking advice and help writing a suitable defence for my case.

Basically I had a phone contract with T-MOBILE/EE which I cancelled about 4-5 years ago due to them repeatedly overcharging me. The argument was they were breaching my rights or terms of service by charging me for things I hadn't accumulated.

Fast forward 5 years and now Lowell solicitors are chasing me on behalf of Lowell portfolio, and I have sent a pre action protocol to them a few months ago, they sent back a dubious looking letter that was supposed to be from t mobile however had no company markings on it etc, it was supposed to be an original deed of assignment.

Additionally they sent a default notice from t mobile with my last payment date and also early termination in fees of £500, I argued the credibility with Lowell by email as I wasn't satisfied these were original documents. They have sent a claims form through and obviously added charges which now surmount to around £750 in total.

I have already acknowledged service on the claim form as intended to defend in full. The date of service is 26/03/18 so I believe I have about 28 days from now to submit a defence, the only issue is I'm not sure how to word my defence and I've never dealt with courts before.

I realise that phone contracts aren't governed by the CCA but they have never onced provided proof that I signed any kind of agreement or contract. They are literally sending me template letters and they keep demanding the money and I refuse to contract with them until they show without reasonable doubt that I owe this alleged debt.

I realize the onus lies with them to prove that I owe alleged debt however I'm struggling to think how to word my defence so that it could put them between a rock and a hard place to come up with some tangible evidence that a debt even exists that I'm liable for.

Here is what the particulars of claim say:

1) the defendant entered into an agreement with T-MOBILE (UK) limited under the account reference xxxxxxxxx ('the agreement')

2) the defendant failed to maintain the required payments and the service was terminated.

3) the agreement was later assigned to the claimant on XX/XX/2016 and notice given to the defendant.

4) despite repeated requests for payment the sum of £565.70 remains due and outstanding.
And the claimant claims
A) the said sum of £565.70
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 £0.124, but limited to one year, being £45.26
c) costs


I know it's a long read and hopefully I can submit a worthwhile defence, I'm just struggling on how to word it and fight my corner.

When I cancelled the contract I actually cut up the sim card and threw it away, so that I would not accumulate extra charges on it since I'd cancelled.

Thanks in advance

[Fey92]

Anyone? Not sure of next steps to take after acknowledging service

[GBExile]

If you have written proof of them overcharging you will not lose in court. BUT what evidence do you have?

[jaguarsuk]

The date of service is 26/03/18.

When you say date of service, is this the date you got the claim form or the date on the clam form? The latter is the important one.

If it is the date on the form you have 33 days to file your defence (you get an extra 5 days for service and this makes your deadline 28th April 2018. As that's a Saturday you have until 4pm the next working day being Monday 30th April 2018. If it's the date you received it, then just add 33 days to the date on the claim form on this tool to determine your deadline: https://www.timeanddate.com/date/dateadd.html

I realise that phone contracts aren't governed by the CCA but they have never onced provided proof that I signed any kind of agreement or contract.

I'm struggling to think how to word my defence so that it could put them between a rock and a hard place to come up with some tangible evidence that a debt even exists that I'm liable for.

I'm just struggling on how to word it and fight my corner.

CPR part 31.14 allows you to obtain all documents mentioned in the Claimants statement of case:

1. "agreement with T-MOBILE (UK) limited under the account reference xxxxxxxxx ('the agreement')"
2. "notice given to the defendant" of assignment

Here's a guide: https://legalbeagles.info/library/gu...-of-documents/

The wording of your defence comes after figuring out what the other side has or doesn't have as that will dictate what actually goes into it and how it's presented.

When I cancelled the contract I actually cut up the sim card and threw it away, so that I would not accumulate extra charges on it since I'd cancelled.

Cutting up and disposing of the SIM Card doesn't prove anything. You need to get the terms to show what they breached, statements to prove they added the charges to cause the breach and a copy of the call log if you called to cancel as a result and/or a copy of the letter you sent to cancel it if they received it.

A Subject Access to Information Request under the Data Protection Act 1998 to EE as T-Mobile no longer exists is how you get this information, you can be vague with what you want and they are obliged to send everything. I personally prefer to state the things I'm specifically looking for as in response if they can't provide them they have will have to tell you and that means when you dig through what they send you won't be unsure if they have just missed it out.

You want:

1. agreement with T-MOBILE (UK) limited under the account reference xxxxxxxxx with me.
2. statements of the account in entirety inclusive of all payments and charges
3. notice given to the defendant of assignment of the account from EE to <<Claimants Name>> dated XX/XX/2016
4. A copy of the log of calls made to EE and the updates to the system used to log the details of the calls for each and every occasion I called
5. Copies of any and all written correspondence by me to EE.
6. Any and all other information held by them.

They have 40 calendar days to comply with the letter, so probably not going to be useful in the filing of the defence and more useful when providing witness statements at which stage you would need them to evidence them breaching the terms and applying the unfair charges. Additionally it'll allow you to compare what Lowell have sent you already with what EE holds.

You'll need to enclose the statutory fee of £10 by cheque or postal order and it's good practice to mark it on the front clearly "DPA 1998 Statutory fee ONLY"

Here's a guide: https://legalbeagles.info/library/gu...ccess-request/

[jaguarsuk]

slainte caragh is good with mobile companies.

[slainte caragh]

Hiya, Thanks for tagging me Jag! In order for me to help out, I need to confirm a few things... You say you have evidence that the contract was cancelled without termination charges 5 years ago? What evidence is it please? I would firstly hit EE with a SAR for the notes on your account to prove that you were indeed out of contract with them. If you simply cut the SIM card up and stopped paying, you were in contract and liable- even if they had overcharged you! Was there any correspondence from EE saying you owed the money or is this the first notification you have had? Did you make a formal complaint about the overcharging and what was the outcome?

[Fey92]

Hi everyone thanks for the responses, I sent the CPR 31.14, I sent it via email to Lowell solicitors and cc'ed Lowell portfolio into it.
Not sure if it matters that I've done it by email or not, if that's no good then I'll have to send one via post tomorrow.

I don't actually have any proof that I cancelled the contract. So nothing solid I can use in my defence. I guess I should also mail T-MOBILE the SAIR too. Also I can't remember receiving anything from EE but that doesn't necessarily mean I didn't, I have a memory like a sieve, and tend to open letters and throw them to one side. Not helpful i know

I never made a formal complaints if I remember correctly but to be honest a lot has happened in the last 5 years and I can't remember much of anything about it to be honest.

jaguarsuk thanks for the links and guides they are very helpful

[slainte caragh]

Definately SAR EE for proof they have followed their own debt collection guidelines!

If you just stopped paying, regardless of wether you have cut the SIM card up or not, you will be liable for line rental until the end of the contract. I have checked if the Supply of Goods and Services Act can be applied retrospectively, to the best of my knowledge it can't but I am wondering if Diana M will?

[Fey92]

This is what Lowell sent me when I sent a pre action protocol a few months ago when they first threatened me with court

[Fey92]

I think it's strange how it says early termination fee and not line rental, I've never been given a proper breakdown of what I allegedly owe and why.

How can an early termination fee amount to that? It doesn't specify line rental

[slainte caragh]

A termination fee is the line rental for the whole course of the contract. For example, a £20 per month contract with 4 months left will be a termination cost of £80.

[Fey92]

So the CPR 31.14 went the other day. What's my next step?
start drafting a defence? Sorry to ask so many questions I've just never dealt with anything like this before

[jaguarsuk]

So the CPR 31.14 went the other day. What's my next step?
start drafting a defence? Sorry to ask so many questions I've just never dealt with anything like this before

Yes, that way you'll have something you only need to edit when you receive a response.

Here's a guide: http://legalbeagles.info/library/gui...-court-claims/

[Fey92]

Hi all received a response to my CPR 31.14

Client Name: Lowell Portfolio I Ltd
Our Reference:
Balance: £470.96

Thank you for your recent email.

Please note we have already contacted you in regards to the below comments. As previously advised in response to your request for the Default Notice and a copy of the agreement, the original creditor has confirmed that as this account is a telecommunications account it is not regulated by the Consumer Credit Act 1974 and is seen to as a Service Agreement rather than a Consumer Credit Agreement. A Default Notice and a copy of the agreement is not required to be filed on a Service Agreement prior to the termination of the account therefore this has not been provided.

As a County Court Claim was issued against you on 26 March 2018 you are now required to complete and return this.

We ask that you respond within the timeframe specified by the Court. Failure to do so may result in a County Court Judgment in Default being entered against you, with further costs incurred.

If you wish to speak with a member of our team, please telephone us between 8:00am and 8:00pm Monday to Friday or between 8:00am and 2:00pm Saturday on 0113 335 3334.

Yours sincerely,

[jaguarsuk]

Hi all received a response to my CPR 31.14

Client Name: Lowell Portfolio I Ltd
Our Reference:
Balance: £470.96

Thank you for your recent email.

Please note we have already contacted you in regards to the below comments. As previously advised in response to your request for the Default Notice and a copy of the agreement, the original creditor has confirmed that as this account is a telecommunications account it is not regulated by the Consumer Credit Act 1974 and is seen to as a Service Agreement rather than a Consumer Credit Agreement. A Default Notice and a copy of the agreement is not required to be filed on a Service Agreement prior to the termination of the account therefore this has not been provided.

As a County Court Claim was issued against you on 26 March 2018 you are now required to complete and return this.

We ask that you respond within the timeframe specified by the Court. Failure to do so may result in a County Court Judgment in Default being entered against you, with further costs incurred.

If you wish to speak with a member of our team, please telephone us between 8:00am and 8:00pm Monday to Friday or between 8:00am and 2:00pm Saturday on 0113 335 3334.

Yours sincerely,

Did you asked for

1. "agreement with T-MOBILE (UK) limited under the account reference xxxxxxxxx ('the agreement')"
2. "notice given to the defendant" of assignment

?

If you asked for those things and didn't ask for a CCA it sounds as though someone at the other end is getting a little muddled.

The agreement will show that you entered into the service with the provider, what the terms were and will be the foundation for if an amount became owing. Assignment will determine whether the Claimant has actually got the legal right to claim and if the account was defaulted on your credit file they must have served a default notice along with prove they have.

If the service provider did not send a default notice they haven't given you the opportunity to remedy before placing a default on your credit file and therefore should not have placed a default on your credit file.

Draft a defence from the guide I linked to yesterday, then post it here with identifying information removed.