Lowell/Overdales Court Claim Form received 13/11/23

[debbie97531]

Received a claim? Yes
Issue Date: 13 Nov 23
Have you Acknowledged the Claim?: Yes
Total Amount Claimed : £1300
Claimant’s Name: Lowell Portfolio 1
Solicitors Firm: Overdales
Original Creditor: EE
Original Debt (eg. Credit card/Loan/Overdraft) : Mobile Phone (assumed from Lowell correspondence)
Particulars of Claim:
The claim is for the sum of £1200 due by the Defendant under a EE Limited account with an account reference of 1234567890
The Defendant failed to maintain contractual payments required under the terms of the account agreement.
The debt was legally assigned to the claimant on 01-09-19, notice of which has been given to the defendant.
The claim includes statutory interest under S.69 of the County Courts Act 1984 at a rate of 8% per annum from the date of assignment to the date of issue of these proceedings in the sum of £100
The claimant claims the sum of £1300

Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?):
Several back and forth correspondence a few years ago, denying any knowledge of any contract. Then nothing for a while, then recently more correspondence from Lowell and Overdales - again refusing to accept this has anything to do with me. I have never had a contract with EE.

List any letters you have sent (eg: CCA/ CPR ):
Have spoken to EE who cannot verify me on the account and therefore cannot provide any information. Issued a SAR a few years ago to EE with no response.
Asked Lowell several times for any contract information, ID verification process, how the account was opened, etc. Lowell provided one statement dated 2018 at an address which wasn't mine. Lowell stated the account was opened in 2014 for a mobile phone but provided no evidence. Lowell have not provided any notice of assignment, at least not to my address and they have not sent to me a copy even though they do have my correct address in which they provide the debt collection letters.
I have also asked to provide the detail of payments and who was paying the account as Lowell told me it was open from 2014 to 2018. I have received no detail of this or the linked phone number or linked email address - none are mine.
I have had nothing but debt collection letters and one statement from 2018 from Lowell.

Any Other Information or Background Details:
I was a victim of fraud and have previously had to issue an N244 to revoke a CCJ which I didn't know I had (again Lowell some kind of store cards). Jan 2020.
I believe this is all tied into the same fraud which was reported to action fraud.
At that time I also had to do a lot of work with credit agencies to remove addresses from my credit file that were not mine. The credit companies kept saying that they couldn't remove the addresses but could put a note against each of them (about 5 over 5 years).
Should I refer back to the previous case suggesting a position has already been determined or would that at least benefit this case, particularly both times are Lowell?

Many thanks in advance for assistance

[debbie97531]

21 Nov 23 - CPR 31.14 issued (again) to Overdales - via email. I hope this is acceptable but I have issued it to the email on their Letter of Claim which clearly says within the 'How to contact us' box help@overdales.com.

I also responded to their letter of claim (5th Nov) by email but I haven't received a response to my request for info in box D and box I of the reply form. Just the Claim Form from Northampton business centre.

The SAR issued to EE in Jan 2020 was never responded to. Should I issue another or assume they hold no data? The SAR was issued to the complaints team who had up until that point been corresponding via email with me. Therefore, I can evidence it is a working email address.

jaguarsuk MIKE770 echat11 apologies for tagging all, just wondering if I could get a steer.

[debbie97531]

My CPR 31.14

On XXXX2023 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 XXXX2023.

1. Agreement
2. Notice of Assignment

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.
I look forward to hearing from you.

[R0b]

Hello

It sounds like your defence is going to be a somewhat bespoke defence to the usual type of defence we direct users to. If you have a genuine belief that this account may be related to fraudulent activities then I think that would be a reasonable ground to put in your defence and the onus will be on Lowell to prove that it was not in fact a fraudulent account set up in your name. Given that they have refused to provide any documentation about the account other than when the account was opened, suggests to me that they either are (a) aware that the account may be a fraudulent one, but are trying to plead ignorance (b) have no documentation as regards the account information and therefore an abuse of process on their part by bringing proceedings.

I think your defence needs to be set up in two parts. The first part, is your primary argument that you are a victim of fraud and the account was opened fraudulently in your name. It will likely support your case if you have evidence that this account was opened during that period where fraudulent accounts were being opened in your name. The second part is your alternative defence that, if it is found the account was not fraudulent and the court finds you did in fact open it in your name (based on the evidence supplied by Lowell), then you have several lines of defence such as no notice of assignment being given, nor was there a default notice, the claim could be statute barred depending on when the default notice was submitted - which Lowell have failed to indicate the date of that default notice, again suggesting they have no information in their possession which is quite common of debt purchases as they typically have a name, account number and debt balance.

If you are using a laptop and not a mobile phone, there is a template on the right hand side of this website for a defence (called 'Example Defence') which contains some of the above elements you will need to prepare for. I would suggest you have a stab at drafting your defence by explaining why you are not liable for the debt, references to fraudulent activities, no information provided by Lowell, refusal by EE to give information before they are unable to verify you etc.

If you then want to upload a draft version of that defence we can provide feedback and tidy it up so it looks as robust as it can be. Note that the date of the claim is 13 November and since you have acknowledged it, you have 33 days from that date to file a defence with the court. Under no circumstances should you use the MCOL defence box online as it has a limited word count so you need to file your defence separately by email to the court. If you choose to ignore this point then there is a very good chance you will not win your case, but that will be on you.

Any questions, let us know.

[jaguarsuk]

Hello, don't apologise for tagging and I'm happy to help.

If EE Can't identify you then I would send an SAR to them again and ask them that if they cannot grant you access to the account due to being unable to verify your identity that they confirm it in writing.

I'd be surprised if they send a copy of the agreement in reponse to your 31.14 request, you'll most likely get a letter back saying this is not a Consumer Credit claim and they don't have to provide a Consumer Credit Agreement, despite the fact you haven't asked for a Consumer Credit Agreement and in a contract dispute they absolutely do have to evidence the terms of any contract.

The problem with that is you can't find out what date the account was opened to be able to confirm it was linked to categorically to the fraud and show evidence as such.

I would send them part 18 questions (template attached) with a cover letter stating that due to them not providing full information on the claim form or serving detailed particulars of claim that you require answers to the part 18 questions:

My questions would be:

1. How was the account opened?
2. If opened online what was the IP Address logged of the application?
3. If on the telephone what was the telephone number used in the call?
4. Please provide a copy of the recording?
5. If it was opened in a store please provide a copy of the ID documents used?
6. What is the date of the account being opened?
7. What was the address for correspondence of the account?
8. Were payments made to the account?
9. What bank account did EE set up the direct debit on when opening the account?
10. When was the account closed?

Add any other questions you might think are pertinent.

Within the cover letter it is up to you if you wish to include the action fraud details, previous case reference and copy of the judgement, but I think it would be worth it.

End the cover letter with the following paragraphs:

I do not believe you hold all of this information on the date of sending these questions, however you should obtain the information you do not currently hold from EE as soon as possible and you should accept this letter as my consent to answer some questions after the CPR Part 18 deadline of 14 days.

However, I'd be obliged if you could confirm receipt of these Part 18 questions as well as answer any questions you can at this time 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.

While the rule obliges them to answer within 14 days it is very unlikely they would be able to comply with it and once you get a letter back with the extension agreed you should send a copy to the court, ideally scan and email it.

Chances are they will know when the account opened and closed, so answer only those questions in the initial response, however that will probably be enough to confirm the link to the fraud.

Once you have enough information to link this to the fraud write to explain as well provide the previous strike out information along with action fraud details (even if you did in the part 18 cover letter) and offer them the opportunity to discontinue. Give a seven calendar day deadline to respond with their intentions.

If they refuse or fail to respond by your deadline then you will file a Defence because you always want to have a defence filed to ensure you do not miss the deadline and them obtain a default judgement in the time it takes to transfer the claim to a county court for a hearing of an application.

After filing a Defence you will file an application for summary judgement via Form N244 with the appropriate fee paid. Make sure to ask for costs of the application to be paid to you by the Claimant if the application succeeds.

With the application I would file a Form N180 as well to ensure the court transfers the file to a court that is convenient to you, there's a guide on filling that in within my signature strip and the form is here: https://assets.publishing.service.go.../N180_1023.pdf

No matter what they say ALWAYS ADHERE TO THE COURT DEADLINES even if they say something like the 'case will be put on hold.'

The claim is not over until you get a sealed notice of discontinuance or a judgement that the claim has been dismissed.

[jaguarsuk]

Hello

It sounds like your defence is going to be a somewhat bespoke defence to the usual type of defence we direct users to. If you have a genuine belief that this account may be related to fraudulent activities then I think that would be a reasonable ground to put in your defence and the onus will be on Lowell to prove that it was not in fact a fraudulent account set up in your name. Given that they have refused to provide any documentation about the account other than when the account was opened, suggests to me that they either are (a) aware that the account may be a fraudulent one, but are trying to plead ignorance (b) have no documentation as regards the account information and therefore an abuse of process on their part by bringing proceedings.

I think your defence needs to be set up in two parts. The first part, is your primary argument that you are a victim of fraud and the account was opened fraudulently in your name. It will likely support your case if you have evidence that this account was opened during that period where fraudulent accounts were being opened in your name. The second part is your alternative defence that, if it is found the account was not fraudulent and the court finds you did in fact open it in your name (based on the evidence supplied by Lowell), then you have several lines of defence such as no notice of assignment being given, nor was there a default notice, the claim could be statute barred depending on when the default notice was submitted - which Lowell have failed to indicate the date of that default notice, again suggesting they have no information in their possession which is quite common of debt purchases as they typically have a name, account number and debt balance.

If you are using a laptop and not a mobile phone, there is a template on the right hand side of this website for a defence (called 'Example Defence') which contains some of the above elements you will need to prepare for. I would suggest you have a stab at drafting your defence by explaining why you are not liable for the debt, references to fraudulent activities, no information provided by Lowell, refusal by EE to give information before they are unable to verify you etc.

If you then want to upload a draft version of that defence we can provide feedback and tidy it up so it looks as robust as it can be. Note that the date of the claim is 13 November and since you have acknowledged it, you have 33 days from that date to file a defence with the court. Under no circumstances should you use the MCOL defence box online as it has a limited word count so you need to file your defence separately by email to the court. If you choose to ignore this point then there is a very good chance you will not win your case, but that will be on you.

Any questions, let us know.

To clarify there will not be a default notice as this is not a Consumer Credit Agreement, it's a telephony services contract, but the rest of the info Rob provides is sound.

That said, they should know the date the account was opened and terminated.

[R0b]

To clarify there will not be a default notice as this is not a Consumer Credit Agreement, it's a telephony services contract, but the rest of the info Rob provides is sound.

Strictly not correct unless we have more information on the contract itself. Telephony providers offer fixed sum credit agreements for the phone element of the contract and that part of the contract will be subject to the Consumer Credit Act. I included default notice as an example because the original information referred to the contract of a mobile phone suggesting the contract may or may not be limited to airtime services.

[jaguarsuk]

Strictly not correct unless we have more information on the contract itself. Telephony providers offer fixed sum credit agreements for the phone element of the contract and that part of the contract will be subject to the Consumer Credit Act. I included default notice as an example because the original information referred to the contract of a mobile phone suggesting the contract may or may not be limited to airtime services.

Having been with EE for over a decade they do not provide a consumer credit element they send you the phone and you agree to a price for the services on a fixed term, while part of that is obviously repaying the cost of the phone they do not state that in the terms.

If it had been Sky Mobile that would be different as my daughter is on there and they have separate services agreement and handset credit agreements.

Regardless the claimant should know the opening and termination dates of the account, plus be able to get them if not.

[R0b]

Afraid I have to disagree Jags. I've been with EE (and Orange before that) for circa 16 years and I can tell you EE definitely offered both historically and currently, a finance agreement for the phone and potentially other equipment whether it's through themselves or a third party. It used to be the case that EE retained ownership of the device for the first 3 months of the agreement which would have fell within the exemption rules on credit agreements so that wouldn't have counted, but I'm sure if you take a peek at their website and their T&Cs, you'll find in there references to credit agreements or credit offerings.

Open to being corrected however.

Ultimately, its on Lowell to prove the contract did not form part of a credit agreement by providing a copy of the original agreement. Per the original post, the OP has no information and suspects it could be fraud related so it's not automatic that the OP should know the account opening and termination date.

[jaguarsuk]

Afraid I have to disagree Jags. I've been with EE (and Orange before that) for circa 16 years and I can tell you EE definitely offered both historically and currently, a finance agreement for the phone and potentially other equipment whether it's through themselves or a third party. It used to be the case that EE retained ownership of the device for the first 3 months of the agreement which would have fell within the exemption rules on credit agreements so that wouldn't have counted, but I'm sure if you take a peek at their website and their T&Cs, you'll find in there references to credit agreements or credit offerings.

Open to being corrected however.

Ultimately, its on Lowell to prove the contract did not form part of a credit agreement by providing a copy of the original agreement. Per the original post, the OP has no information and suspects it could be fraud related so it's not automatic that the OP should know the account opening and termination date.

I suppose EE may offer different terms based on circumstances.

I don't mean that the OP should know, I mean that Lowell should know or be able to find out, so suggested to ask those questions as part of a part 18 request.

When all this is said and done it might be worth the OP sending an SAR to Lowell to see if there are any other accounts they hold because if they have defeated one already and this one has come up, there could well be more.

[echat11]

You have 28 days from the date on the claim form, work out when your defence is due, make a note of it, post on this thread 4 days before it's due and we can run through it with you. Hopefully you'll get more information in the next few weeks.

You could send your bank / banks a SAR request to show that no payments to EE has been taken out between 2014 - 2018, but be minded that they may not have information going back that far.

If the account was opened by you, as advised you should ask for Terms and Condition, which they should provide, their normal response to that is to state, 'they were in the box when the phone was purchased'.

[debbie97531]

Thank you so much everyone. A lot to digest and action here. I have previously asked a lot of the part 18 questions to Lowell and EE without realising/referencing the part 18 element.

I will read the advice a few times then set out a plan of action.

[jaguarsuk]

Thank you so much everyone. A lot to digest and action here. I have previously asked a lot of the part 18 questions to Lowell and EE without realising/referencing the part 18 element.

I will read the advice a few times then set out a plan of action.

CPR Part 18 wouldn't have done anything prior to the claim, it's just a more formal way of asking the questions now a claim is filed and if you have to showing that the Claimant hasn't provided information you need to properly assess your case if they do not answer all the questions.

[debbie97531]

CPR Part 18 wouldn't have done anything prior to the claim, it's just a more formal way of asking the questions now a claim is filed and if you have to showing that the Claimant hasn't provided information you need to properly assess your case if they do not answer all the questions.

Here are my questions for CPR Part 18. I've asked about alterations as the address on the 2018 statement is different to that which is associated with the earlier Fraud. Let me know if you think this is relevant or not. If not I'll remove the questions.

1. How was the account opened?
2. If opened online what was the IP Address logged of the application?
3. If on the telephone what was the telephone number used in the call?
4. Please provide a copy of the recording?
5. If it was opened in a store please provide a copy of the ID documents used?
6. Please provide a copy of the ID verification?
7. What is the date of the account being opened?
8. What was the address for correspondence of the account?
9. Were payments made to the account?
10. Did EE set up a direct debit?
11. What bank account did payments come from?
12. Who owns the bank account?
13. Were any alterations made to the account?
14. When was the account closed?

[jaguarsuk]

Those questions all look fine, just wait to see what the response is and in the meantime perhaps work on a draft of a defence to ensure you don't have to do it all last minute