Lowell taking me to court

**R0b** · 26th September 2018, 15:15:PM

Hello

It might be helpful if you could clarify a few things:

1. When you sent the CPR 31.14 letter, what exactly did you say in there? Did you make any reference to credit agreement or credit generally, which triggered Lowell to respond by saying it is not a consumer credit agreement?

2. What are the contents of the letters November 2016 and May 2018? Could you possibly upload a copy of those letters with personal information redacted so we can see what Lowell are saying.

3. Can you also post up a copy of the Claim Form? You mention that you received it a few weeks ago but unless you acknowledge the claim, you only have 14 days to respond otherwise Lowell can apply for default judgment. If you acknowledged the claim you get yourself an additional 14 days to file a defence - did you do this?

It might also be helpful to submit a subject access request to Tesco Mobile as it could be that someone has taken a mobile account under your name fraudulently. If you need some help with that let us know.

In the meantime I have also tagged jaguarsuk Amethyst ostell to assist in case I'm not around

**Amethyst** · 26th September 2018, 16:14:PM

To just follow on from what Rob has said, I would also check on your credit file to see if this Tesco ''debt'' shows on there, and check if there is anything else odd linked to that old address that shows up - just in case of any potential ID fraud.

AND send a SAR to Tesco now -Subject Access Request Letter

Did you put in an acknowledgement of service through moneyclaim online?( Robs already asked that - so yes, just answer his questions

)

**BoltStar** · 27th September 2018, 10:59:AM

Originally posted by BoltStar View Post

I received a letter from Lowell in May 2018 stating that I owed Tesco mobile some Ł1,600+ which I was baffled about because I have never had a contract with Tesco, I wasn't even aware they did contract phones. I spoke to a friend about this who had a similar experience and she advised me to do some search here and read some advice given to others.

I sent Lowell a prove it letter the following week. They sent me a letter to acknowledge receipt and said they would get back to me soon. A few weeks later, they replied with basically just the same letter saying I owed this money and need to arrange how to pay it back. Another thing that then happened was, the same debt letter was delivered to my mum's address twice even though I haven't lived there for a good 13yrs.

Since their response just looked like they were trying to force me to acknowledge a debt that wasn't mine, I just ignored them.

A few weeks ago, I received a letter from Northampton Court stating Lowell had started proceedings against me. Upon a google search, I found other people who had been in similar situations and some steps they took. I acknowledged the letter online which gave me 28 days to prepare my defense. I sent Lowell another proof it letter and a CPR.31 dated 12th September and gave them 7days to response.

I received a response yesterday which basically stated "As this is a former telecommunications matter it is not regulated by the Consumer Credit Act 1974, the original creditor is therefore not required to retain a copy of the agreement and therefore unable to request a copy of the required documents". They then attached a letter they had apparently sent out to me in November 2016 (which I never received) & the letter from May 2018 which I received and responded to.

Problem now is that I have no idea what to do from here. They can't seriously use a demand letter of payment as proof that I owe this sum of amount that I have no clue about. I can't afford a solicitor, so I now feel stuck. Any advice would be appreciated.

Hello,

I have uploaded all their response to my CPR.31 . Yes, I went to the moneyclaim website and acknowledged the claim on the 12th September. They just basically attached a letter from November 2016 & May 2018 as their proof that the debt is mine. I checked my credit report and couldn't see anything there but when I checked under the closed section, I saw that Lowell had registered it against my credit file, I am not sure exactly how long it has been sitting there as I never check the closed section.

I'm guessing I have to enter my defence latest by 4th october since the claim was issued on 6th september

Attached Files

**Amethyst** · 27th September 2018, 11:18:AM

Okay, in their particulars of claim they have clearly stated the agreement was for airtime AND for the handset which was regulated under the CCA 1974... then in their response letter they say it is a telecommunications account not covered by the CCA 1974. So there is an issue there ( well on top of the fact that you've never had a tesco mobile account )

They don't seem to give a date that the agreement was entered in to, or the date it defaulted, just the date it was assigned to Lowell ( 2016 ). So it is likely the actual account was opened in 2014/2015... if it was a fraudulent account then it was likely taken out, the handset obtained, and then never paid so defaulting quite quickly. You have sent the Subject Access Request to Tesco so that should shine some light on things, but for now we should respond to Lowells letter.

What does the date of opening and default show as on your credit file ? Any payment history showing?

Have you tried calling Tesco mobile at all to try find out something about this ?

Does your mum still live at the address the letters were sent to ?

( for future ref btw, when copying template letters, remove the instructions bit

)

**Amethyst** · 27th September 2018, 11:42:AM

For ease of reference - Particulars of CLaim

2018-09-27 12_40_40-Start.png

and their letter responding to a request under CCA and CPR.

2018-09-27 12_41_40-Start.png

Also.... from Tesco's site regarding the 'Anytime Upgrade' account

How Anytime Upgrade Flex works

You have two contracts – one for your phone and one for your usage. Your monthly payments depend on how long your contract is – 12, 18, 24, 30 or 36 months (the maximum contract length for usage is 24 months)
Realised you don’t need all that data? Simple. You can move your tariff down
You can upgrade whenever you want – just pay off your current phone
Plus, you’ll pay less each month once you’ve paid off your phone as you just pay for your usage

Great for you, great for your pocket.

Little things can make a big difference.

The small print

Requires a monthly credit agreement at 0% APR and monthly service contract both with Tesco Mobile Limited. Subject to availability and your status. If your service contract period is longer than 24 months, your Early Termination Charges are limited to the first 24 months.

I have very similar with Virgin, I have one contract (regulated credit agreement) for buying my phone... and a separate agreement for airtime/data which I can switch up/down etc as needed.

**Amethyst** · 27th September 2018, 12:10:PM

Okay, I'm going to guess some bits, just as I'm in the mood for writing a letter back to Lowell... so we'll amend once we know the answers to the Q's above if needed.

Dear Lowell

CLaim No: xxxxxxx
Reference: xxxxxxxx

Thank you for your letter dated 21st September which, although it is not stated, I believe is in response to my formal request for a copy of the original credit agreement made pursuant to s.77 of the Consumer Credit Act 1974.

The entire debt is in dispute, and the claim will be defended in full, as I have never held any agreement or contract with Tesco Mobile Limited and I believe that the account was opened fraudulently. I have thus asked for further details regarding your claim from both yourselves as assignees and from Tesco Mobile Limited directly as the original party to the Agreements.

You have enclosed a copy of a letter of assignment sent from yourselves in November 2016. This letter was addressed to an address where I have not resided for over 13 years and thus, was not received by myself.

However, dealing with the immediate issue where you refuse to provide any documents relating to the original account, in your letter you state;
"As this is a former telecommunications matter it is not regulated by the Consumer Credit Act 1974"

However, as you will no doubt be aware, in your Statement of Case you state;
"This Agreement provided both a service agreement for the provision of airtime, and a Consumer Credit Act 1974 regulated agreement for the provision of hardware"

Further your particulars of claim state that the type of account entered into with Tesco Mobile Limited was a "Tesco Mobile Anytime Upgrade account".

On researching this type of account online, Tesco's states that in this kind of account "You have two contracts – one for your phone and one for your usage." and "Requires a monthly credit agreement at 0% APR"

Therefore, you should ensure your compliance with my formal request made pursuant to the Consumer Credit Act 1974. You are currently in breach of that request and as such cannot enforce the agreement.

Additionally, your particulars of claim state "The service Agreement was terminated", there is no mention of the hardware agreement being terminated or defaulted. You also fail to give any date that the alleged agreement was entered into or defaulted/terminated, or of the amounts due to each individual agreement that have given rise to the claim. I'm sure you can understand this lack of detail makes it incredibly difficult to investigate where/how this agreement was entered into or by whom.

Your claim was issued on the 6th September and I intend to file my defence in good time to avoid any risk of your obtaining a default judgment against me. Therefore your response is required within 7 days from the date of this letter.

Kind Regards

xxxxxxxxxxxxxxxxxx

**R0b** · 27th September 2018, 12:16:PM

Well, having looked at those documents and the Particulars of Claim, I would think this is a relatively straightforward defence.

Their POC are pretty useless and it is even more embarrassing for them to send a letter suggesting that the agreement is not regulated. That just goes to show that someone is sending out a template letter without actually looking at the case file. No doubt Lowell will try to spin that as saying something like "human error" or that "we didn't mean to say that the agreement was regulated" but ultimately, its their job to to prove these claims as they are the party who has commenced legal proceedings.

Amethyst is right in that their lack of knowledge about this agreement is a bonus for you because if they wanted to amend their Particulars of Claim, they would have to shell out Ł255 to do so, which I highly doubt they would want to do that.

Anyway, you have 33 days from the date of issue to file a defence (service of the form is deemed 5 days after date of issue + 14 to reply + 14 days if acknowledged) and by my calculations, you should file a defence by 4pm on 9 October.

As a side note about the default on your credit file, if the account is indeed fraudulent then Lowell should have to remove that default otherwise it would be a breach of data protection and/or negligent misstatement for giving a false reference to credit reference agencies. If you wanted to pursue this to court and force Lowell's hand to properly respond, you could slap in a counterclaim for compensation of something fairly nominal like Ł100-Ł200 at a cost of Ł25 on the basis that the account (we are assuming) is fraudulent and they should have carried out sufficient checks to satisfy themselves that the debt belonged to you. Nonetheless, if the debt is found not to be belonging to you, then they would have an obligation anyway to remove it or in the meantime, mark it as in dispute until conclusion of the this claim.

Something worth considering, is to write to Lowell and invite them to withdraw their claim otherwise you will defend and/or counterclaim for reasons above. There's no guarantee your claim would be successful, but it could be used as a tool to make Lowell consider whether it is worth pursuing, though you might have to sacrifice that Ł25 if they agree to drop the claim and walk away provided they don't pay you a penny.

Just thinking out loud here, but first and foremost, you will need to draft a defence. One of those defence points will be to argue that the account was fraudulently entered into unbeknown to you, and that you require Lowell to prove that you did in fact enter into that agreement yourself.

**BoltStar** · 27th September 2018, 12:19:PM

Originally posted by Amethyst View Post

Okay, in their particulars of claim they have clearly stated the agreement was for airtime AND for the handset which was regulated under the CCA 1974... then in their response letter they say it is a telecommunications account not covered by the CCA 1974. So there is an issue there ( well on top of the fact that you've never had a tesco mobile account )

They don't seem to give a date that the agreement was entered in to, or the date it defaulted, just the date it was assigned to Lowell ( 2016 ). So it is likely the actual account was opened in 2014/2015... if it was a fraudulent account then it was likely taken out, the handset obtained, and then never paid so defaulting quite quickly. You have sent the Subject Access Request to Tesco so that should shine some light on things, but for now we should respond to Lowells letter.

What does the date of opening and default show as on your credit file ? Any payment history showing?

Have you tried calling Tesco mobile at all to try find out something about this ?

Does your mum still live at the address the letters were sent to ?

( for future ref btw, when copying template letters, remove the instructions bit

)

Hello and thank you so much for responding.

I am sending out the SAR to Tesco today including the template of response you just helped me with. The attachments are what is visible on my credit report. There aren't any other payment information before or after 2014.

Attached Files

**BoltStar** · 27th September 2018, 12:47:PM

Originally posted by R0b View Post

Well, having looked at those documents and the Particulars of Claim, I would think this is a relatively straightforward defence.

Their POC are pretty useless and it is even more embarrassing for them to send a letter suggesting that the agreement is not regulated. That just goes to show that someone is sending out a template letter without actually looking at the case file. No doubt Lowell will try to spin that as saying something like "human error" or that "we didn't mean to say that the agreement was regulated" but ultimately, its their job to to prove these claims as they are the party who has commenced legal proceedings.

Amethyst is right in that their lack of knowledge about this agreement is a bonus for you because if they wanted to amend their Particulars of Claim, they would have to shell out Ł255 to do so, which I highly doubt they would want to do that.

Anyway, you have 33 days from the date of issue to file a defence (service of the form is deemed 5 days after date of issue + 14 to reply + 14 days if acknowledged) and by my calculations, you should file a defence by 4pm on 9 October.

As a side note about the default on your credit file, if the account is indeed fraudulent then Lowell should have to remove that default otherwise it would be a breach of data protection and/or negligent misstatement for giving a false reference to credit reference agencies. If you wanted to pursue this to court and force Lowell's hand to properly respond, you could slap in a counterclaim for compensation of something fairly nominal like Ł100-Ł200 at a cost of Ł25 on the basis that the account (we are assuming) is fraudulent and they should have carried out sufficient checks to satisfy themselves that the debt belonged to you. Nonetheless, if the debt is found not to be belonging to you, then they would have an obligation anyway to remove it or in the meantime, mark it as in dispute until conclusion of the this claim.

Something worth considering, is to write to Lowell and invite them to withdraw their claim otherwise you will defend and/or counterclaim for reasons above. There's no guarantee your claim would be successful, but it could be used as a tool to make Lowell consider whether it is worth pursuing, though you might have to sacrifice that Ł25 if they agree to drop the claim and walk away provided they don't pay you a penny.

Just thinking out loud here, but first and foremost, you will need to draft a defence. One of those defence points will be to argue that the account was fraudulently entered into unbeknown to you, and that you require Lowell to prove that you did in fact enter into that agreement yourself.

Hello and thank you for your response.

I have drafted the template Amethyst put up for me along with a bit of what you said about a counterclaim. Honestly, I still want to counterclaim regardless of them dropping this because this has now given me sleepless nights but I don't believe it is worth the hassle.

**BoltStar** · 5th October 2018, 18:11:PM

I opened a Noodle account because someone told me i can possibly see more info on there than the creditscore account i have. I found Lowell on there with indeed some more details on it which includes the date the account was opened and the date it defaulted BUT most importantly the address on it isn't my current address but an address i hadn't lived in for 13yrs! This is solid proof that i didn't take out the contract, if the address on the file they're saying defaulted is a place i have't lived at since college. I haven't heard back from them regarding the last letter i posted out and as i need to submit a defense by the 9th, i was hoping to do so by sunday instead. Could i please get some help with my defense.

Attached Files

Screenshot_8.jpg (49.8 KB, 1 view)

**BoltStar** · 6th October 2018, 08:53:AM

Originally posted by R0b View Post

Well, having looked at those documents and the Particulars of Claim, I would think this is a relatively straightforward defence.

Their POC are pretty useless and it is even more embarrassing for them to send a letter suggesting that the agreement is not regulated. That just goes to show that someone is sending out a template letter without actually looking at the case file. No doubt Lowell will try to spin that as saying something like "human error" or that "we didn't mean to say that the agreement was regulated" but ultimately, its their job to to prove these claims as they are the party who has commenced legal proceedings.

Amethyst is right in that their lack of knowledge about this agreement is a bonus for you because if they wanted to amend their Particulars of Claim, they would have to shell out Ł255 to do so, which I highly doubt they would want to do that.

Anyway, you have 33 days from the date of issue to file a defence (service of the form is deemed 5 days after date of issue + 14 to reply + 14 days if acknowledged) and by my calculations, you should file a defence by 4pm on 9 October.

As a side note about the default on your credit file, if the account is indeed fraudulent then Lowell should have to remove that default otherwise it would be a breach of data protection and/or negligent misstatement for giving a false reference to credit reference agencies. If you wanted to pursue this to court and force Lowell's hand to properly respond, you could slap in a counterclaim for compensation of something fairly nominal like Ł100-Ł200 at a cost of Ł25 on the basis that the account (we are assuming) is fraudulent and they should have carried out sufficient checks to satisfy themselves that the debt belonged to you. Nonetheless, if the debt is found not to be belonging to you, then they would have an obligation anyway to remove it or in the meantime, mark it as in dispute until conclusion of the this claim.

Something worth considering, is to write to Lowell and invite them to withdraw their claim otherwise you will defend and/or counterclaim for reasons above. There's no guarantee your claim would be successful, but it could be used as a tool to make Lowell consider whether it is worth pursuing, though you might have to sacrifice that Ł25 if they agree to drop the claim and walk away provided they don't pay you a penny.

Just thinking out loud here, but first and foremost, you will need to draft a defence. One of those defence points will be to argue that the account was fraudulently entered into unbeknown to you, and that you require Lowell to prove that you did in fact enter into that agreement yourself.

Hello, could you help with my defense please

**BoltStar** · 6th October 2018, 08:53:AM

Originally posted by Amethyst View Post

Okay, I'm going to guess some bits, just as I'm in the mood for writing a letter back to Lowell... so we'll amend once we know the answers to the Q's above if needed.

Dear Lowell

CLaim No: xxxxxxx
Reference: xxxxxxxx

Thank you for your letter dated 21st September which, although it is not stated, I believe is in response to my formal request for a copy of the original credit agreement made pursuant to s.77 of the Consumer Credit Act 1974.

The entire debt is in dispute, and the claim will be defended in full, as I have never held any agreement or contract with Tesco Mobile Limited and I believe that the account was opened fraudulently. I have thus asked for further details regarding your claim from both yourselves as assignees and from Tesco Mobile Limited directly as the original party to the Agreements.

You have enclosed a copy of a letter of assignment sent from yourselves in November 2016. This letter was addressed to an address where I have not resided for over 13 years and thus, was not received by myself.

However, dealing with the immediate issue where you refuse to provide any documents relating to the original account, in your letter you state;
"As this is a former telecommunications matter it is not regulated by the Consumer Credit Act 1974"

However, as you will no doubt be aware, in your Statement of Case you state;
"This Agreement provided both a service agreement for the provision of airtime, and a Consumer Credit Act 1974 regulated agreement for the provision of hardware"

Further your particulars of claim state that the type of account entered into with Tesco Mobile Limited was a "Tesco Mobile Anytime Upgrade account".

On researching this type of account online, Tesco's states that in this kind of account "You have two contracts – one for your phone and one for your usage." and "Requires a monthly credit agreement at 0% APR"

Therefore, you should ensure your compliance with my formal request made pursuant to the Consumer Credit Act 1974. You are currently in breach of that request and as such cannot enforce the agreement.

Additionally, your particulars of claim state "The service Agreement was terminated", there is no mention of the hardware agreement being terminated or defaulted. You also fail to give any date that the alleged agreement was entered into or defaulted/terminated, or of the amounts due to each individual agreement that have given rise to the claim. I'm sure you can understand this lack of detail makes it incredibly difficult to investigate where/how this agreement was entered into or by whom.

Your claim was issued on the 6th September and I intend to file my defence in good time to avoid any risk of your obtaining a default judgment against me. Therefore your response is required within 7 days from the date of this letter.

Kind Regards

xxxxxxxxxxxxxxxxxx

Hello, could you help with my defense please

**BoltStar** · 7th October 2018, 12:22:PM

In the Northampton County Court Business Centre

Claim No:

Lowell Portfolio I Ltd

Claimant

And

Defendant

DEFENCE

1.I received the claim from the Northampton County Court
on 8th of September 2018.

2.Each and every allegation in the Claimants statement of case is
denied.

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

4.It is denied that the Defendant has previously entered into an
agreement with Tesco Mobile Limited for provision of Anytime
Upgrade account.

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 Claimant’s Particulars of Claim fail to state when the
agreement was entered into.

7.The Claimants statement of case states that the account was
assigned from Tesco Mobile Limited to Lowell Solicitors Limited on
11th of October 2016. The Defendant does not recall receiving
notice of this assignment.

8.It is denied that Tesco Mobile Limited 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(4A) 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.

9.On the 12th of September 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 Limited. I
requested the Claimant provide copies of the [Agreement, Default
Notice and Notice of Assignment].

10.Lowell Solicitors Limited has not sent any of these documents
to me and it their response to my request, Lowell Solicitors
Limitde stated; As this is a former telecommunications matter it
is not regulated by the Consumer Credit Act 1974.

However, in Lowell Solicitors Limited’s statement of Case, they
state;

This Agreement provided both a service agreement for the provision
of airtime, and a Consumer Credit Act 1974 regulated agreement for
the provision of hardware.

Furthermore, the particulars of claim state that the type of
account entered into with Tesco Mobile Limited was a Tesco Mobile
Anytime Upgrade account.

On researching this type of account online, Tesco's states that in
this kind of account, You have two contracts – one for your phone
and one for your usage and Requires a monthly credit agreement at
0% APR.

11.On the 12th of September 2018, I sent a formal request for a
copy of the original agreement to Lowell Solicitors Limited
pursuant to section [77 or 78] of the Consumer Credit Act 1974
along with the statutory Ł1 fee.

12.The Claimant has failed to comply with [s77 (1) / s 78 (1)]
Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)]
Consumer Credit Act 1974 cannot enforce the agreement.

13.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.

14.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.

15.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.

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

Statement of Truth

The Defendant believes that the facts stated in this Defence are
true.

Signed:

Dated: 07th October 2018

This was the defense i entered after following the defense template on the website

**R0b** · 7th October 2018, 16:13:PM

Well there's not much you can do if you have filed that defence but it is quite clear that you have done a cut and paste job. There's a number of square brackets which you failed to remove and anyone seeing that will know you've just put something in there without actually knowing what you are doing.

Although the template covers a basic defence of the common issues raised, each case turns on their own facts and yours is not any different. If it were me I would have removed a couple of points as you are merely repeating what the Particulars of Claim is stating so it doesn't really add anything. There is also the point that the Particulars of Claim says that the debt is for hardware and airtime, but fails to mention how the debt is apportioned between the two. You failed to mention that in your defence which would have put the onus on Lowell to prove at court - If the majority of the debt was hardware related and only a small proportion of the debt was for airtime, that would dramatically reduce what they can claim if they are unable to produce the consumer credit agreement.

You had until 9 October to submit your defence so you could have posted up a draft for us to comment on before filing it with the court. This is a typical situation of those who come on here, looked at the template defence and then submitted it without out any real thought or help. The template is not a one size fits all and is only there to give you an idea of how you might set out your defence.

You might very well get away with it and either Lowell could discontinue the case or it might go all the way to court and a judge might find in your favour, but I wouldn't be surprised if you were challenged on some of your defence points.

Anyway, I wish you good luck but next time I would suggest you don't rush ahead and instead seek some help or assistance from us, which is probably why you posted in the first place.

Lowell taking me to court