Lowell: Tomlin Order Receipt

[Amethyst]

Sorry I messed the post up and lost it.

[Natur3]

Hello Amethyst

I this week received a letter from the Judge presiding over the case stating that he has decided that this case should be sent to meditation. I have been given the contact number for the mediation services and have been given 7 days to call.

Would you state that this looks good? I originally selected mediation before it was sent to a Judge for direction and Lloyd's called in sick at the time it was meant to take place so it got sent to a Judge for a court hearing.

How would you suggest I prepare for mediation?

In response to your questions above

1. Date of assignment: No date advised from Lowell's however I can see the date of assignment from Lloyd's as in 2015.
2. Alleged Payments - None of these are outlined on the bank statements
3. Amount - Yes is inclusive of court fees and statutory interest.

[Natur3]

Amethyst and MIKE770 I recently received direction for medication from the judge. I responded to the letter to request a date via telephone and email.

I also just received a court date for the hearing (it's in 2 weeks) and the courts are asking the claimant to fill the forms out properly and make the payment otherwise they are striking out the claim in the next few days.

what are your thoughts

[MIKE770]

it is up to them to follow court instruction or case will be struck out,, so ring the court say friday for any update??? Amethyst*

[Amethyst]

Are there directions for parties to exchange witness statements and/or documents before the hearing ?( see second /third page of hearing notice)
What date does the hearing fee need paying by ? (Is the paragraph about filling in forms correctly or being struck out about paying the hearing fee ?)
Seems rather short notice - when is the letter dated ?

[Natur3]

Hello Amethyst

Please see responses in red below

Are there directions for parties to exchange witness statements and/or documents before the hearing ?( see second /third page of hearing notice)
No. The 1st page is the notice of trial date, speaks about the claimant court fee, when it needs to be paid by, what happens when its struck out, that its non refundable and that is it.

The second and third pages are simply generic information about listing policy, accessibility, toilets, privacy notice, car parking etc. That is it

What date does the hearing fee need paying by ? (Is the paragraph about filling in forms correctly or being struck out about paying the hearing fee ?)
Fee must be paid by the 9th December. The paragraph is about filling in forms correctly, It says 'Unless the claimant does by 4pm on 9th December pay to the court the trial fee of £170 or file a properly completed application (i.e one which provides all the required information in the manner requested) then the claim will be struck out without further order and you will be liable for the court costs which the defendant has incurred,

Seems rather short notice - when is the letter dated ?
Very short notice. Letter is dated on 2nd December and was received in the post on the 4th December.

Mediation have today advised they are unable to give me a date as it has to be at least 10 days before the court date and they have nothing available. Will call daily to check for cancellations.Will also contact Loeell to provide me with further information on the default notice, and the two payments allegedly made.

Is this a good idea or should I just wait, say nothing and on 9th December after 4pm call the courts and check the stance?

[Natur3]

MIKE770 Okay will call on Friday after 4pm to check the stance.

[MIKE770]

MIKE770 Okay will call on Friday after 4pm to check the stance.

*

ring after the 9th

*

[Natur3]

Okay thank you Mike

[Natur3]

Good evening Amethyst*and MIKE770*

I'm not sure if you will see this in time, however, I have now received further correspondence from Lowells in the post*

- Another Tomlin Order request to be returned by end of this week (Tomlin Order is blank for me to enter figure)
- Witness Statement of a Paralegal at Lowells
- Reconstituted correspondence
- Bank Statements (same bank statements sent from my SAR

Statement essentially states that:

1. A copy of the original agreement cant be produced but they ask that the court considers other evidence of overwhelming probabilities
2. A last payment to credit the account was made of £100 on 6*July 2015 to the account* before the facility was closed and terminated
3. The last spending on the account was 1 March 2013
4. Account was subject to legal assignment on 24 November 2015
5. Reconstituted letters were sent and none received back as undelivered
6. Defendant failed to respond to any correspondence
7. The defence is merely a denial and not a comprehensive response and it is without merit and untenable
8. Order request: Claimed amount, fixed costs and cost of attendance.

What are your thoughts in the above? Do I complete and return tomlin order with a small amount (I cannot afford much but will insert the smallest figure as advised) Or shall I attend the court on 23rd October with another form of defence? From reading the forums im not sure what else to do

Please advise if you can, I only have a few days to decide. Thank you both

[Amethyst]

paras 5 and 6 are a bit daft, letters returned as undelivered aren't going to have been replied to are they....

anyway there's still no evidence of this 100 payment in July 2015 at all then ? ( there was nothing from the SAR to Lloyds and nothing shows on your bank statements)

The Lloyds info in the SAR show closure/termination of the account in 2013? I think you said their info only went up to 2013 and shows the account closure? Lowell haven't given a date for termination/closure in the WS at all?

Did they pay the hearing fee? and have they filed this witness statement with the court ? ( worth a check before deciding what to do).

You definitely weren't ordered to exchange witness statements? (usually they'd be exchanged on the same day, unless Lowell have just done it as a last ditch intimidation along side their Tomlin offer)

I think call court, check if hearing fee has been paid and WS been filed - check with them if you were meant to do a WS. and then its a case of thinking if you want to defend on the statute barred grounds.

Whats the 23rd October date? 23rd December?

[Natur3]

Amethystplease see my initial responses below in red and elaboration in blue.

paras 5 and 6 are a bit daft, letters returned as undelivered aren't going to have been replied to are they....
Indeed

anyway there's still no evidence of this £100 payment in July 2015 at all then ? ( there was nothing from the SAR to Lloyds and nothing shows on your bank statements)

-There are no statements for 2015 from my Lloyds SAR or contained in Lowells Witness Statement Pack, statements from both stop at account closure in 2013.The witness statement states that last payment to credit the account before the assignor closed it and terminated the facility was £100 on 6 July 2015. There are no statements to this effect, the account was closed in 2013 and is clearly outlined in the statements that they provided as part of their witness pack.
- The witness statement also says the last debit on the account was on 1 March 2013 of £16.50. They state that this is evidence of usage . I can see on the bank statement a bounced direct debit of £16.50 on this date. A returned direct debit on the same day is clearly outlined in the next line.

Lloyds info in the SAR show closure/termination of the account in 2013? I think you said their info only went up to 2013 and shows the account closure? Yes - Both Lowell and Lloyds information only goes up to 2013.Lowell haven't given a date for termination/closure in the WS at all?
- Lowell in the witness statement confirm that the 'agreement was formally terminated by the Assignor on 15 April 2013'. They then state that the account was subject to legal assignment on 24th November 2015. They refer to Section 5 of the 1980 Act regarding 6 years expiration and the initial course of action. They then state that I acknowledged the agreement by way of payment on 6th July 2015 in the sum of £100, this date and phantom payment is clearly when they attempting to start the clock from - There are no statements or provision of evidence to this effect, they simply state in their letter 'Lloyds have informed us that this £100 was made'.I also note that in the witness statement they do not make any reference to having evidence for this sum of £100, but they do make reference to evidence for the sum 'paid' in 2013 (which upon closer inspection of this evidence it was in fact a returneddirect debit clearly outlined on the bank statements). They then state that their legal proceedings were issued on 5th June 2019 and therefore it is not statue barred.
Did they pay the hearing fee? and have they filed this witness statement with the court ? ( worth a check before deciding what to do). I will check this tomorrow

You definitely weren't ordered to exchange witness statements? (usually they'd be exchanged on the same day, unless Lowell have just done it as a last ditch intimidation along side their Tomlin offer) I definitely have had no request to exchange witness statements

I think call court, check if hearing fee has been paid and WS been filed - check with them if you were meant to do a WS. and then its a case of thinking if you want to defend on the statute barred grounds. Judging by the lack of evidence for the phantom payment in 2015 (not sure how one makes payment into a closed account from 2013)I think I will defend based on statue barred.

Whats the 23rd October date? 23rd December? - Apologies, reference was to court date:23rd December

[Amethyst]

Okay. Does the WS and Lloyds SAR back up that the account was closed in April 2013 ?

The DD of £16.50 - that was a third party company trying to call on a DD on an already closed account. Therefore it can't be used as 'last payment or acknowledgment' as it is a third party trying to take money from you and failing because the account was closed - how does it show on the Lloyds statements if account was closed btw?

I think you should do a WS regardless of not having any order to do one, basically a reply to their WS and evidence. If nothing else it will cement the arguments you have for the hearing and encourage Lowell to discontinue before costs of the hearing.

So account closed April 2013 - Claim issued June 19.
DD wasn't you and can't be deemed as a payment or acknowledgement.
No default or termination notice ( exhibit lowell letter saying not applicable to overdraft so they can't turn around and try rely on default date)

No evidence at all of payments in Jan or Jun 2015. Balance being claimed doesn't reflect such payments. Nothing in SAR. No evidence on your own bank account of any payments to Lloyds on those dates.
Claim statute barred.

Examples to get started on Witness Statements
Be same layout as Lowells WS really.

[Natur3]

Amethyst thank you.

I checked with the courts and Lowell paid the fee and sent a copy of the witness statement (again no instructions for years to exchange)

How do I write a witness statement? Is there a template for this and simply add in your above mention defence?

im definitely getting a little overwhelmed in anticipation for next week but I know I need to be in attendance to stand a chance.

There is definitely no mention of evidence in their witness statement or bank accounts they supplied nor Halifax's.

[Natur3]

Amethyst
MIKE770*

Hello

Unfortunately I lost the case. I argued my points but the judge went on 'probability' based on the typed up statement of account and the fact that it was referenced in the witness statement and signed.

Absolute rookie mistake on my part but I didn't bring the SAR documentation with me as it echoed what was in the witness statement so didn't think I needed to. I let the judge know that no such evidence was provided in the SAR and that the 'evidence 'provided' was not from Lloyds itself but a typed up document and that they were able to provide proof from 2013 yet couldn't from 2015. I then stated that the onus is on the Claimaint to provide actual evidence and not myself as the defendant.

He then entered judgement. I said I wanted to appeal and he stated I could ask him and if he rejected it I would need to appeal to a circuit judge and request for stay of judgement but this would have to be done within 21 days. The defendant asked about payment the judge said it is within 14 days but if I ask the circuit judge to stay then I am able to do that. The judge asked me what the basis was of my appeal and I stated false evidence relating to 2015 and the fact that it is does not appear in the SAR. He stated that he is rejecting my request on the basis that the SAR should have been provided on the day and that I had the opportunity however I can appeal to a circuit judge.

They also tried to request 8% but this was denied, they also tried to request money for 'unreasonable behaviour' this was also denied.

How do I appeal to the circuit judge or do you think I'm just better off leaving as is as the new judge may reject my appeal on the same basis? I would still like to give it a go as it is clearly statute barred and no such evidence was provided by Lloyds.
H