Court claim from Lowells

**MIKE770** · 27th February 2020, 16:01:PM

Acknowledge Claim just state (tick) defend all do it on MCOL site using the reference on claim form and keep copies of all!

**Glockenspiel** · 27th February 2020, 17:39:PM

Thanks Mike, I've now acknowledged and ticked defend all on the MCOL site. I've already sent the CCA request. I'll send the CPR 31.14 tomorrow.

**Glockenspiel** · 18th March 2020, 16:51:PM

Hi everyone. Time has gone by and I now have to enter my defence by Friday, which is not far away. Could anyone please look over my defence and let me know any pointers?

I've pasted it below and also uploaded the documents Lowell have sent me in response to my CPR 31.14 and CCA requests. I have requested a default notice from Halifax by SAR but do not yet have it. I don't expect to receive it before my defence is due.

1. The Defendant received the claim XXXXXX from the Northampton County Court on XXXXXX

2. Each and every allegation in the Claimant’s statement of case is denied unless specifically admitted in this Defence.

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

4. It is admitted that the Defendant has previously entered into an agreement with Halifax for the provision of credit.

5. The Claimant's statement of case fails to give adequate information to enable the Defendant to properly assess his position with regards the claim.

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

7. The Claimant’s statement of the case states that the account was assigned from Halifax to Lowell on XXXXXX and a notice given to the Defendant. The Defendant does not recall receiving notice of this assignment.

8. It is denied that Halifax 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 and that 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. The claimant’s Particulars of Claim fail to mention the service of and expiry of a default notice. A default notice is necessary under Section 87(1) Consumer Credit Act 1974 before the creditor can become entitled by reason of the debtor’s breach of contract to terminate the regulated agreement. In the PRA Group UK Ltd v Christopher Doyle, the court of appeal concluded that the default notice was not only a procedural requirement but also formed part of the creditor’s cause of action. The court of appeal noted that absent service and expiry of a default notice the creditor would have no entitlement to terminate a regulated consumer credit agreement. Taking this into account it follows that the creditor must also plead the service and expiry of a default notice as part of their case.

10. Due to the Claimant’s failure to state in their particulars of claim that a default notice was served, the Defendant is prejudiced by not being entitled to request a copy of the default notice under Civil Procedure Rule 31.14.

11. Accordingly the Defendant reserves his position to amend this Defence with the costs of the same paid by the Claimant if the Claimant provides a copy of the Default Notice.

12. The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.

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

Intro letter from Lowell - anon.pdf

Letter of assignment from Lowell - anon.pdf

Halifax credit card CCA page 1 - anon - resized.jpg Halifax credit card CCA page 2 - anon - resized.jpg

Attached Files

**Glockenspiel** · 19th March 2020, 07:37:AM

Can anyone help with this please? Amethyst MIKE770 I need to submit my defence tomorrow!

**MIKE770** · 19th March 2020, 08:45:AM

Item 7:- states no assignment BUT below show letters of assignment>?* * *see what others state!

**Glockenspiel** · 23rd March 2020, 12:08:PM

Thanks for your reply Mike. I was incredibly fortunate that another member of the forum generously redrafted my defence (for which I can't thank him enough!) so I believe I was able to submit something very strong. Now I will wait and see what they come back with. I'll post any updates here.

**Glockenspiel** · 25th June 2020, 13:30:PM

Hi all. I now have a mediation call booked for Monday 6 July.

Does anyone have any advice on what I should say, or what I should focus on? I believe I'm supposed to outline my position first and focus on the key points of my defence. I've posted my defence below.

I know the absence of a default notice is something to focus on. Lowell did not mention a default notice in their claim so I haven't been able to request it from them.

Halifax have responded to my SAR request with a sheaf of documents, which does not include a default notice.

Does anyone have any suggestions or questions? I would very much appreciate the help! Thank you!

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1. The Claimant is put to proof of its claim.

2. The Defendant is embarrassed by the lack of particularity in the pleadings put forward by the Claimant.

3. No particulars are offered as to the date of the contract, the term of the contract alleged to have been breached, the degree of breach, the date of any demand for payment relied upon, the date of last payment, the date and method of termination.

4. The Defendant is embarrassed by the Claimants pleading “And the service was terminated”. The Claimant is required to clarify the meaning of this pleading as it is unclear and incoherent. a. Is this supposed to mean that a default was served under s87 (1) Consumer Credit Act? b. Is this supposed to mean a Default was recorded on the Defendants credit file? If so, who by?

5. The Claimants pleaded case as it stands cannot succeed, this is clear from the Court of Appeal authority in Doyle v PRA Group. The Defendant reserves his position to amend this Defence and plead further if the Claimant provides further disclosures and clarifies its pleadings. The Defendant shall seek the costs of such amendments from the Claimant in such circumstances.

6. The Claimants disclosure is wholly inadequate for these proceedings. The credit agreement provided in reply to the Defendants request appears to be incomplete. There is clear reference to further terms being at clause 12.2 for example but there is no such clause within the document. The Defendant is unable to reply to a claim when the Claimant has insufficient pleadings and documentation.

7. The Defendant denies that the document which he signed on applying for a credit card complied with the requirements of s61(1)(a) or s61(1)(b) or s61(1)(c) Consumer Credit Act 1974.

8. Section 61(1) Consumer Credit Act 1974 states (1) A regulated agreement is not properly executed unless - (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60 (1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and (b) the document embodies all the terms of the agreement, other than implied terms, and (c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible. Thus the signing of a document containing the prescribed terms is essential if the agreement is to be regarded as properly executed.

9. Section 65(1) Consumer Credit Act 1974 states 65 Consequences of improper execution. (1) An improperly executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

10. The credit agreement disclosed by the Claimant is not signed by the creditor. Accordingly the agreement is improperly executed and pursuant to the Judgment of HHJ Platts in HFO v Patel the Claimant must apply to the Court for an enforcement order.

11. The document disclosed by the claimant is also incomplete, there is clear reference to further terms within the agreement, terms which have not been provided.

12. The Claimant has failed to serve any statements of account between the alleged date of assignment and the present date and is accordingly in breach of s78 (4) Consumer Credit Act 1974.

13. Furthermore, the Claimant is in breach of s86C Consumer Credit Act 1974 as the Claimant has failed to serve notice of sums in arrears during the period of the alleged assignment to date. And has failed to plead service of such notices as well.

14. By virtue of the Claimants breach of s86C Consumer Credit Act 1974 the Claimant may not charge any interest during the breach and furthermore may not enforce the agreement while the breach continues per s86D (3) Consumer Credit Act 1974.

15. The Defendant avers that the sums claimed by the Claimant include sums that are not recoverable. These sums referred to relate to late payment penalty charges and the Defendant will seek G6HK430P to exercise his right of set off against any sum found due and payable by the Court. The Defendant is unable to plead the quantum of such charges at this stage and shall require full disclosure of the statements over the term of the agreement. From the statements the Defendant does have, there are a number of the aforesaid charges which leads the Defendant to believe there are more charges yet to be disclosed within the outstanding statements.

16. In respect of the said late payment charges and interest, the Defendant denies the Claimant’s entitlement to recover the same.

17. The Claimant is not entitled to recover the said charges and interest because: (a) The said charges are irrecoverable as they amount to penalties in law (b) Insofar as the charges and interest levied are argued to be charges for services rendered by HALIFAX, the Defendant avers that the said charges and interest were not levied for any service of contractual or other benefit to the Defendant; and (c) In relation to the account, the Defendant deals with HALIFAX as a consumer and, therefore, the contractual terms under which the Claimant may seek to justify the imposition of the said charges and interest are contractual terms which are subject to the Unfair Terms in Consumer Contracts Regulations 1999 (the 1999 Regulations) and the Defendant claims that the said terms are unfair within the meaning of Regulation 5(1)

18. In the premises, the Defendant avers that the terms under which the charges were levied were unfair and thus not binding upon the Defendant by virtue of Regulation 8 of the 1999 Regulations

19. Without prejudice to the foregoing, and in light of the difficulty that the Defendant suffers in knowing the Claimant’s case due to the Claimant’s failure to properly plead the same, the Defendant avers that: (a) Insofar as the said charges and interest form any part of the sum claimed, the Defendant denies that the Claimant is entitled to recover the same; and (b) Insofar as the said charges and interest do not form part of the sum claimed in the Claim, the Defendant shall aver that the said sum should be set off against the sum found to be due to the Claimant in respect of the Claimants Claim.

20. The Claimant is required to prove the assignment and prove service of a valid notice of assignment pursuant to s136 & s196 Law of Property Act 1925

21. Notwithstanding the above the Claimant is put to strict proof that a compliant default notice was served on the Defendant. The Defendant notes that for a default notice to be compliant it must comply with the requirements of, amongst others, s87 (1), s88 Consumer Credit Act 1974 and the requirements of the Consumer Credit (Default Enforcement & Termination Notices) Regulations 1983. For the avoidance of doubt the Defendant denies that a Default notice was received.

22. The Claimant has failed to: (a) Plead a coherent case and G6HK430P plead facts which are capable of proof. (b) Show title in this matter (c) Comply with s78(1) Consumer Credit Act (d) Comply with s78 (4) & s86 Consumer Credit Act (e) Comply with s61 Consumer Credit Act (f) Ensure that the terms of the contract are not unfair under UTCCR 1999 (g) Serve a Default notice as required by s87 Consumer Credit Act per Harrison v Link financial limited (h) Plead a case which is supported by documents and evidence

23. Accordingly the Defendant seeks an order dismissing this claim with costs paid to the Defendant by the Claimant.

Court claim from Lowells