Provident Loans / Lowell / Tomlin Order

**jaguarsuk** · 25th November 2019, 11:59:AM

Originally posted by fredbestboy View Post

well here we are again.

Background: last payment made in early March 2013 on 2 Provident Loans. Lowell Portfolio purchased debt in August 2014. Default Notice was supposedly sent to me on 3rd June 2013 by Provident (not received) and was posted on my Credit File on 16th September 2013 - dropped off now. LP sent account to LS in Oct 2018 and they sent me a Letter before Action in November 2018. Then ping ponged back and forward about the paperwork – Credit Agreement etc / Default Notices / Debt being Statute Barred etc but was served with Court Papers on 30^th July 2019 by LS. NB. Never accepted the debt always referred to as Alleged Debt in all/any communications.

I acknowledge service of papers/subsequently sent in Defence as follows:

1. the date of Last payment was over 6 years ago;
2. Creditor had Cause of Action over 6 years ago;
3. The Default Notice was sent 3rd June 2013 and this is the Default Date that should be reflected on my credit file (not several months later on 16th September 2013)

Amethysts confirmed at one point that date the Default is served and not the date it is on my credit file that is important although LS tried to argue otherwise and said the Cause for Action was 6 years from the date the "Default was Serve" on my credit file! Amethysts also said that in previous cases where a default notice had been served by Provident they gave you 14 or 21 days to resolve matter so when that expired they should taken action then.

Then entered mediation offered by Court with LS but they wanted an offer to settle this debt in full but in installments - I reiterated the above defence and that was the end of the Mediation. Next step received papers from Court regarding assigning to local Court. Then yesterday 23rd November 2019 received an "offer" of a Tomlin order from LS, however LS have changed their argument - saying that as the 2 loans were Fixed Term Loans, they did not require a Default Notice to be served and that LS had 6 years from the date the Fixed Term Loan expired to commence proceedings! See attached letter. [ATTACH]n1498898[/ATTACH]

Can someone advise me - Is this just a last ditch attempted by LS to try and force me to pay up - when they know the debt is SB on or do they have an case per latest letter?

Basically yes, most loans are fixed term, being that the repayments are over a number of months/years. It is still a requirement under CCA 1974 to serve a default notice and they have basically admitted none was served, so either their claim is stat barred or the lender failed to act in accordance with CCA 1974 either of which is fatal to their claim.

Originally posted by fredbestboy View Post

I am at breaking point with all of this especially as my husband has been ill on and off work for 1/2 years and now his mental health seems to be going off kilter too. However, I just don't want to give into these unprofessional bunch of bullies - who seem to think they can change their case/argument/dates to suit their agenda. Should I Ignore the offer of the Tomlin Order and see if the proceed to Court? I cannot imagine that the Court would be impressed by their tactics. Also I am thinking of writing to their CEO complaining about the way LS keep reinventing the wheel to suit themselves and how I feel I am being harassed by them over what should be consider a SB debt to see how he reacts - would this be wise? Would also copy complaint to relevant regulatory authority. Help please - what would be my best course of action now?. Thank you.

I wouldn't write to their CEO, they know how their solicitors act and he won't care.

I would respond to their letter though stating that a fixed term loan regulated by the Consumer Credit Act 1974 does require a default notices to be served pursuant to section 87 and compliant with section 88. That their admission none was served means that the original lender did not comply with the Consumer Credit Act 1974 therefore the alleged debt is unenforceable.

I would go on to state that in light of this revelation by them that should they proceed to a hearing it will require you amending your defence for which you will seek costs from them and in successfully defending the claim you will seek recovery of all costs of and occasioned in dealing with this whole matter.

I usually offer them that if they file a Notice of discontinuance that I will not pursue them for costs, which you don't have to, but the chances of you successfully claiming costs are slim to none anyway and if it ends up on the desk of a less experienced solicitor might scare them a little.

**fredbestboy** · 2nd December 2019, 07:19:AM

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**fredbestboy** · 2nd December 2019, 07:20:AM

Thanks for your helpful response Jaguarsuk, which I have used to draft my response to Lowell vis a vis the Default Notice not being served whilst also reiterating*the point that the alleged debts*are Statute Barred.* I am now more hopeful, that*Lowell*will accept that to successfully win the*case*they will have the 2*the points of law*to get round and will, therefore,*now back off.* However you never now with this bunch.*
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**fredbestboy** · 12th December 2019, 17:56:PM

So update on this sorry story - which I think some might find useful â€“ plus I think it means I am nearly at the point of winning. Please, please, please let me right!

I received a letter form Lowell in response to my letter about Default not being served and my continued assertion that the debt is Statute Barred - see extract for letter:

â€œOur clients position remains the same pursuant to our previous letter. If this matter is not settled it will proceed to a Small Claim's Hearing. At this point we will seek to inform the Judge of our client's willingness to settle the matter prior to the hearing and request any costs resulting from our attendance at the hearing should be borne by you.â€

I am really not sure whether, at this point, I should laugh or cry as their response seems nothing short of thuggish â€“ agree to our demands to settle or it will cost you more. Really not sure why I would agree to settle an alleged debt via mediation or a Tomlin Order when my stance has always been that it is Statute Barred and also that their client failed to serve a Default Notice?

Then I received a General Form of Judgment or Order dated 8^th December â€“ wherein Lowell/Claimant are told to provide more information (not a judgement against me):

Before District Judge XXXXXX sitting at the County Court at XXXXXX

Upon CONSDIERING THE Particulars of Claim and Defence:

ITS IS ORDRED THAT

The Claimant shall file at court and serve upon the Defendant by 4pm on 24^th December 2019 a Reply to Defence annexing a copy of the relevant agreement, notice of assignment, statement of account and statutory notices.
This order was made without a hearing. Any party affected by it may apply within 7 days of service for it to be set aside, varied or stayed.

Surely this helps me somewhat as the reference to â€œstatutory noticesâ€ seems to imply that Lowell need to provide the Default Notice & the Notice of Assignment â€“before 24^th December â€“ if they can't â€“ don't they have to apply for a stay or give up? Although I have to say I am a bit confused that the Court has proceed without a hearing but guess that is because I am just a layman!

**jaguarsuk** · 13th December 2019, 15:24:PM

Originally posted by fredbestboy View Post

So update on this sorry story - which I think some might find useful â€“ plus I think it means I am nearly at the point of winning. Please, please, please let me right!

I received a letter form Lowell in response to my letter about Default not being served and my continued assertion that the debt is Statute Barred - see extract for letter:

â€œOur clients position remains the same pursuant to our previous letter. If this matter is not settled it will proceed to a Small Claim's Hearing. At this point we will seek to inform the Judge of our client's willingness to settle the matter prior to the hearing and request any costs resulting from our attendance at the hearing should be borne by you.â€

I am really not sure whether, at this point, I should laugh or cry as their response seems nothing short of thuggish â€“ agree to our demands to settle or it will cost you more. Really not sure why I would agree to settle an alleged debt via mediation or a Tomlin Order when my stance has always been that it is Statute Barred and also that their client failed to serve a Default Notice?

Then I received a General Form of Judgment or Order dated 8^th December â€“ wherein Lowell/Claimant are told to provide more information (not a judgement against me):

Before District Judge XXXXXX sitting at the County Court at XXXXXX

Upon CONSDIERING THE Particulars of Claim and Defence:

ITS IS ORDRED THAT

The Claimant shall file at court and serve upon the Defendant by 4pm on 24^th December 2019 a Reply to Defence annexing a copy of the relevant agreement, notice of assignment, statement of account and statutory notices.
This order was made without a hearing. Any party affected by it may apply within 7 days of service for it to be set aside, varied or stayed.

Surely this helps me somewhat as the reference to â€œstatutory noticesâ€ seems to imply that Lowell need to provide the Default Notice & the Notice of Assignment â€“before 24^th December â€“ if they can't â€“ don't they have to apply for a stay or give up? Although I have to say I am a bit confused that the Court has proceed without a hearing but guess that is because I am just a layman!

If it were me I would send a letter to the court acknowledging the order and advising the court that they have informed you no default notice was served, then enclose a copy of them doing that.

I would then serve a copy of it all on the Claimant with a covering letter inviting them to discontinue the claim.

As I said, they have managed to move themselves into a quite unique position that if they produce a true default notice the claim is stat barred or they have to admit no default notice was ever served in which case they can't enforce the alleged debt, both of which are fatal to the claim.

**fredbestboy** · 17th December 2019, 15:22:PM

Hi Jaguarsuk - thanks again for your help. LS have in fact sent the paperwork required by the Judge to the Court/copy to me - I got in on Thursday 12th - will scan it in tomorrow and will follow up as suggested above. They are still claiming - not Statute Barred / no Default Notice is required but I am really scared now as they do seem hell bent on pursuing me to Court and scared that there is something they know/believe and which they expect the judge to understand which I don't - meaning they win / screw my credit for another 6 years.

They have never admitted, as a matter of fact, that nobody ever served a Default Notice. but that they could not provide a copy and subsequently that they don't need to etc - repeat & bend facts, repeat & bend facts..... However I guess I have to keep pushing back and will just send the letter where they admit they cannot provide the Default stating if you cannot provide - where is the proof that DN ever existed/was sent and yes you do need to do this for any / all types of loan - even thoughts that are SB too!

**Debt Camel** · 24th December 2019, 13:53:PM

Can I go off at a tangent?

Did you have other loans from Provident before these two? If you did, you may have a good case for getting a refund of all interest you paid. For many Provident customers that can be a huge amount of money... See https://debtcamel.co.uk/refund-doorstep-loans/. And read the comments below that article - these affordability complaints had been going VERY slowly at the Ombudsman but from November Provident has suddenly started settling hundreds of them.

This isn't a reason to not defend the court case. But if you lose and get a CCJ, then if you win an affordability complaint, provident will have to sort out getting the CCJ removed...

**fredbestboy** · 15th January 2020, 10:32:AM

Hi Debt Camel - sorry for delayed response - yes I had previous loans with Provident.* I will take a look at the link - thank you very much this may help me in the long run.*
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**fredbestboy** · 15th January 2020, 11:38:AM

Update - I did as Jaguarsuk suggested but now have a Small Claims Court date set @ 13th Feb.*

Lowell have been ordered to pay the Court Fees by 30th January otherwise the case will be struck - is this a positive or is it standard procedure?* I am hoping it is a positive and I am also hoping they won’t pay because they expect not to win but I am also so, so worried that the Judge has let it proceed to Court even though Lowell have not produced a Default Notice.
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In any event I have to prepare a Witness Statement and get to Court / Lowell by 6th February – any advice on this part of the process?*
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I intend to continue to defend based on the fact that alleged debt is Statute Barred and that a Default Notice has never shown up.* Plus I want to show that LS communications are inconsistent on a number of points ie their letters show a manipulation/twisting of the law to support their case as opposed to what the law actually states.* I want underline their apparent misuse of the legal system which has obviously been done to put pressure on/confuse me.* In other words they have used the law to hound, harass and bully me - no surprise there I guess!.
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As a point of interest is it also worth stating that they would have purchased the alleged debt for around only 12% of its value and they are also using the legal system to extort the whole amount from me? **
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Please help as I cannot tell you how worried I am by all this, my husband’s health continues to worsen and we want to get rid of mortgage - albeit small by doing Equity Release not ideal I know but we have our reasons and I am concerned that a CCJ on my credit file will make the interest payable higher than needed.
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Thank you!
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**jaguarsuk** · 15th January 2020, 12:18:PM

Originally posted by fredbestboy View Post

Update - I did as Jaguarsuk suggested but now have a Small Claims Court date set @ 13th Feb.

Lowell have been ordered to pay the Court Fees by 30th January otherwise the case will be struck - is this a positive or is it standard procedure? I am hoping it is a positive and I am also hoping they won’t pay because they expect not to win but I am also so, so worried that the Judge has let it proceed to Court even though Lowell have not produced a Default Notice.

This is standard and it's unlikely it's been seen by a judge yet, so don't be too disheartened.

Originally posted by fredbestboy View Post

In any event I have to prepare a Witness Statement and get to Court / Lowell by 6th February – any advice on this part of the process?

Witness Statements

Originally posted by fredbestboy View Post

I intend to continue to defend based on the fact that alleged debt is Statute Barred and that a Default Notice has never shown up. Plus I want to show that LS communications are inconsistent on a number of points ie their letters show a manipulation/twisting of the law to support their case as opposed to what the law actually states. I want underline their apparent misuse of the legal system which has obviously been done to put pressure on/confuse me. In other words they have used the law to hound, harass and bully me - no surprise there I guess!.

As a point of interest is it also worth stating that they would have purchased the alleged debt for around only 12% of its value and they are also using the legal system to extort the whole amount from me? *

No, it's legal and the court don't care about what they paid for it.

**fredbestboy** · 26th January 2020, 09:55:AM

Once again thank you so very much Jaguarsuk - I decided on Friday that I must get down to looking at the links you had sent me*and prepare my defence for the Court Case.* At that I time I though funny nothing from Loathsome Lowell - wonder why not?* Took my rubbish out and checked post - brown envelope - I though hum* seems to small for their Claim Papers.* Open it up and first word I see is the one word I have been praying for DISCONTINUE.*

Here is the letter in full:- fairly standard I am guessing:

"Our client has instructed us to discontinue this claim and therefore we enclose a copy of the Notice of Discontinuance by way of service upon you.

We have filed the same at Court and have requested that any hearing that may have been listed is vacated.

We confirm that this brings the legal proceedings to an end"

I cannot tell how happy I am that right at the eleventh hour this vile people backed off and I am free of any further legal action.*

Thanks again all - I will post a separate note so that people can see that listening to the advice given on LB and not giving into LS can bring success!* A post of hope!

**ostell** · 26th January 2020, 10:06:AM

Check with the court that it gas in fact been discontinued*

**jaguarsuk** · 27th January 2020, 08:42:AM

You will receive a copy back from the court sealed, but that should just be a formality.

Provident Loans / Lowell / Tomlin Order