Court Claim - Credit Card

[ForumLurker]

Good evening to you all!

Last time I had issues, I posted in here and the amazing people came to help resulting in a really good result, so I’m really hoping I could bend your ear once again.

To summarise briefly, Court Claim has come through for a credit card debt allegedly defaulted 4 years ago. I submitted my defence and followed the guides here with regards to CPR, CCA and SAR - and filed the standard defence as per the template.

I received nothing from the SAR (Creation Financial Services), nothing from the CCA request (Lowell) - and have finally received a response to my defence from Overdales.

They state they are unable to obtain a copy of the Notice of assignment and don’t reference any other docs, but sent copies of statements from the disputed account. They have also proposed a settlement offer for more than the outstanding balance at the date of default, but less than the claimed balance.

I would appreciate any guidance on what steps to take from here?

If I counter offer (which they have invited), I suspect this will form an admission of guilt and would therefore be detrimental.

Do I need to do anything? If so, what would you suggest?

I’m happy to DM copies of anything, but would rather not post publicly (even redacted - just in case)

As always, any guidance would be sincerely appreciated. One thing I don’t want is a CCJ having spent 4 years starting to piece life back together after a financially catastrophic separation.

[R0b]

Hello

As it stands, you look to be in a fair strong position here:

- The lack of CCA request means you can argue that Lowell are unable to enforce the agreement, and so claim should be dismissed.

- As there is no notice of assignment, it can't be a legal assignment because it doesn't comply with s.136 of the Law of Property Act 1925 which means that Lowell only obtains the beneficial interest in the alleged debt. The general rule is that where the debt assigned is an equitable assignment, the beneficial owner should join the legal owner (Creation Financial Services) as party to proceedings. The reason is to allow finality and also to ensure that the debt is not assigned to another creditor who tries to take action and recover the same debt.

- Also, you should not take just the notice of assignment as evidence the alleged debt has actually been assigned, you should be arguing at court that any notice is insufficient and it is up to Lowell to provide evidence that the debt allegedly belonging to you, has i fact been assigned to them. That means they would have to provide the agreement that shows the debt has been assigned to you. Without that, there's no evidence they have a right to sue.

It's up to you whether you want to admit the debt or not, but if I were in your shoes, I would respond back to Overdales and keep it short by refusing their offer of settlement, and point out (without explaining in any detail) that their client lacks the evidence to show that their entitled to the alleged debt. You are confident that the claim will be dismissed and invite them to discontinue to avoid costs (albeit limited).

Feel free to post something up if you want any comments on it before you send it off.

On a side note, can you pay the amount if it goes to court and the decision is found in favour of Lowells? You would have one month from the date of judgment to pay but if you saved a little between now and that court date, and you can afford it then it might be worth taking a punt anyway.

[ForumLurker]

Hi Rob,

That's fantastic info and it gives me a lot to work with. And yes, I will post my response prior to sending for your appraisal if you are willing to do so!

One question: Given the 30 days have lapsed for the Plaintiff to respond to the defence, do I need do anything with respect to the Court Claim? Or will they be in touch with me?

Thanks again!

[R0b]

I'm not sure what you mean that the claimant has been given 30 days to reply to your defence. If the claim has been submitted via Money Claims Online, then the claimant doesn't get an extra 30 days to respond. It can file a reply but must do so at the same time the directions questionnaire must be submitted.


Can you explain what you mean?

[ForumLurker]

Hi Rob,

Apologies for the delay in replying - I wanted to retrieve the letter to be certain of what I was saying.

so the letter from the court to acknowledge my defence stipulated the claimant had 28 days from the date of defence to proceed, or the case would be stayed.

Do I need do anything more than wait (think the 28 days is up tomorrow)? The offer letter from Overdales gave me until 26th to respond, so I am I right in assuming the case will be stated by default? And can I just let the 28 day period lapse without further action in my part?

Thanks as always!