Lowell Portfolio v Tinpot

**Amethyst** · 12th February 2019, 12:40:PM

Afternoon

xx

Okay all sounds quite straightforward to start off

POC ( relevant bit )

the defendant opened a Capital One regulated consumer credit account under reference xxxx on 11/09/2015 (“the Agreement”)
in breach of the agreement, the defendant failed to maintain the required payments and the agreement was terminated.
The agreement was later assigned to the claimant on 23/03/2018 and written notice given to the defendant.
Despite repeated requests for payment, the sum of £2200 remains due and outstanding. And the claimant claims

So the CPR request to Lowell Solicitors should ask for the Agreement, notice of assignment .... hmmm - add on Termination/Default Notice even though it's not specifically mentioned... they haven't even plead a default there have they ? do you ever recall receiving any default notice?

CCA request - s.78 as it's a credit card and would go to Lowell Portfolio. The standard letter should be fine

SAR to Capital One as well please - Subject Access Request Letter

Have you managed to do the Acknowledgment on MCOL ? Some help here - Acknowledge Claim - main thing is to remember to STOP after doing the acknowledgment with intent to defend and don't be tempted to write anything in the defence box.

As it's from 2015, and likely defaulted 2017? then no you're nowhere near time barred, it's likely to have been an online application and agreement and, if located it is likely to be valid... so there is only the default notice issue - do you have any recollection of what happened when you stopped using the account ? was it a case of not being able to make the minimum payments, or did Cap One write and say they were withdrawing use of the card and request proposals for repayments despite your not having defaulted on payments ?

What's your overall situation - will a CCJ have a huge effect ? Can you afford reasonable monthly installments or a F&F settlement to keep it from going to a CCJ ? Any major disputes over the account at all ?

Happy to check over any letters if you want to post up what you've done - just keep your personal details private ( so remove name/address/reference numbers etc before posting )

**tinpot1234** · 12th February 2019, 12:42:PM

I think i have completed the below correctly ready to be sent off

this one to Lowell portfolio as they claim to be the creditor, do i still need to send the £1 PO as i thought this was discontinued last year?

Dear Sir/Madam

Re:− Account Number xxxxxxxxxxxxxxxxx

Please treat this letter as a formal request for you to supply a copy of my Consumer Credit Agreement as is my entitlement under sections 77-79 of the Consumer Credit Act 1974.

I require you to provide me with a true copy, or reconstituted copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit.

Your obligation also extends to providing me with a statement of account. I enclose a £1 postal order, which represents payment of the statutory fee payable under the Consumer Credit Act. I understand that a copy of my credit agreement should be supplied within 12 working days from the date of this letter.

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189.

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

Yours faithfully,

And this one to Lowell Solicitors with a copy to the court? or just keep a copy of what is sent to Lowell on file?

Dear Sirs,

Claim Number: XXXXXXX

Request for documents mentioned in a statement of case under CPR 31.14

On XX/XX/XX I received a County Court claim from yourselves of which I have acknowledged receipt indicating my intention to defend in full.

To enable me to file my defence and/or counterclaim, I require inspection of documents you mention in your statement of case ahead of filing my defence on XX/XX/XX. ( i think its 22 days after the date on the claim form)

1. Agreement / Contract

2. Assignment

3. Formal Demand

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

You should note that this claim has not yet been allocated to a specific track and the provisions of CPR 27(2) are of no effect. Had your claim not been issued through CCBC the Claimant would have been obliged to attach copies of the documentation upon which it relies to the Particulars of Claim.

I, as Defendant, am entitled to see the documents on which the Claimant relies and which you must produce at trial. Disclosure at this stage will enable me to fully plead my case and further the Overriding Objective.

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter.

If you require more time in which to comply with this request you must tell me in writing and confirm your agreement to an extension of the time allowed for me to file my defence as allowed under CPR 15.5 so I may notify the court.

For your information and records I enclose a copy of the formal request for a copy of the credit agreement relating to this claim, pursuant to the Consumer Credit Act 1974, which has been posted to your client with the statutory fee of £1 today, 09/02/2019.

I look forward to hearing from you.

**Amethyst** · 12th February 2019, 12:46:PM

Nigh on, read my previous post ( think we crossed posted

)

Yes the £1 is still needed ( it's the Subject Access Request £10 that was discontinued )

No copies to the court at this stage - but make sure you keep a copy, and get a post receipt if you can.

**tinpot1234** · 12th February 2019, 13:22:PM

Hi Amethyst, thank you for the pointers

1. Once i told capital that i had lost my job there was very little help from them and they went very quiet after shutting the card down.

2. a ccj although not fantastic would damage my ability to remortgage etc

3. payment plans etc would be an avenue that i could look at once i am earning more than i am currently, would it be worthwhile asking how much they obtained the debt for to strengthen any negotiation or would this come a little further down the current pathway.

4. i have checked the details on noodle and the account start date is right but i do dispute lowell as a creditor as i have never signed anything with them, as i have not held anything with them or signed anything for them.

I will also send to capital one

**Amethyst** · 12th February 2019, 13:32:PM

Negotiations would come after you have got your letters in, had a response and filed a defence ( if appropriate at that stage)

On a F&F settlement, as this is relatively recent they may have paid up to 30% for it so that would be a starting point for negotiations, IF a full & final settlement was appropriate/affordable etc.

Otherwise you could negotiate monthly installments to keep it out of court...under what's known as a Tomlin ( consent ) order. This keeps the case on hold in court while you make payments until it has been paid off - but there is the risk that if you fail to keep up the payments they could go back for judgment.

The SAR to capital one should help - you informed them of your change in circumstances - so it will be whether they defaulted it after you missed payments or terminated due to your change in circumstances.

Cap One have the right to assign the debt to Lowell and Lowell thus become the creditor for the CCA purposes regardless of your input / lack thereof... sorry xxx It is likely they will come up with the docs at some point so be preparing while you wait and go through the court process to enter negotiations if your defence falls away.

First thing though is to get the letters sent off and the claim acknowledged so get those done, CPR to Lowell Sols, CCA to Lowell Portfolio and SAR to Cap One.

**tinpot1234** · 14th February 2019, 10:12:AM

Just to keep everyone updated, i have sent the SAR,CCA and CPR off and acknowledged on the moneyclaim portal.

Do i submit my defence right away or wait for the SAR and CCA? as i am looking at the paper claim form and thinking i need to do it sooner rather than waiting?

**tinpot1234** · 26th February 2019, 09:24:AM

Hi everyone

i hope everyone is enjoying the mini summer that we are having.

Just an update that i need help with, just a confirmation really...

I received the claim form dated the 6th Feb, which i have acknowledged online using mcol, sent the letters including SAR and CPA. To date nothing from Lowell at all.

So what i am trying to work out, is do i submit my defence today which is day 20 or do i wait for a little while?

a little pointer in the right direction would be awesome.

Thank you all

Tinpot

**charitynjw** · 26th February 2019, 13:34:PM

Hi Tinpot

Your defence will be due 33 days (max) from the court claim issue date. (28 days + 5 days allowed for post, per Civil Procedure Rules)
This is still the case even if you are filing the defence electronically.
If that date falls on a weekend/Bank Hol, then the next working day is ok.

**tinpot1234** · 27th February 2019, 09:47:AM

Awesome thank you charitynjw

i was beginning to panic a little bit, still nothing from Lowell, so i will submit the defence next week.

Thank you again everyone for being so helpful

**tinpot1234** · 14th March 2019, 11:21:AM

Hi all,

Just a follow up, so i submitted my defence on the 5th March, i still have not received any cpr details from Lowell...

After checking mcol it states that my defence and acknowledgement are accepted so i guess its just a waiting game?

**Amethyst** · 14th March 2019, 12:27:PM

Indeed. If you don't hear anything by the end of March may be worth giving the court a call to see if its being stayed. It is likely though you'll next receive a completed directions questionnaire from Lowell. You needn't do anything with that, the court will send you your own one to fill in a week or so later.

**tinpot1234** · 18th April 2019, 08:40:AM

Good Morning All,

just a brief update on Lowell v Tinpot.

I have yet to receive any details to the cpr request from lowell prior to or after filing my defence. I have now received an N180 to complete and send back/serve to third party.

I have to send it back by the 26th April and i will duly complete and send.

Quick questions

I intend to complete and say yes to mediation with a brief note stating non compliance of pre action protocol for an effective defence, thoughts on worth while or not?

Once it goes to mediation is it worth while finding out if they own the debt and also purchase price to allow a stronger negotiation?

**MasterCoder** · 18th April 2019, 08:52:AM

It would seem Lowell have a distinct lack of regard for providing documentation or even acknowledging requests made under CCR and CPR. I can't believe that there is no punitive action handed to Lowell for their conduct; it seems to be a common theme.

I will be following this one, you are a little further ahead in the process than I am.

**charitynjw** · 18th April 2019, 09:37:AM

Originally posted by tinpot1234 View Post

Good Morning All,

just a brief update on Lowell v Tinpot.

I have yet to receive any details to the cpr request from lowell prior to or after filing my defence. I have now received an N180 to complete and send back/serve to third party.

I have to send it back by the 26th April and i will duly complete and send.

Quick questions

I intend to complete and say yes to mediation with a brief note stating non compliance of pre action protocol for an effective defence, thoughts on worth while or not?

Once it goes to mediation is it worth while finding out if they own the debt and also purchase price to allow a stronger negotiation?

Mediation Service usually ask if you have received all disclosure evidence.
If not, it is then usually sent back to court for allocation to court venue & track.

Lowell Portfolio v Tinpot