Help Carter \ Lowell old Cap1 debt - claim form issued on 28 Aug

[Yorik]

POC

This claim is for xxxx the amount due under an agreement between the original creditor and the defendant to provide finance and / or services and / or goods.

This debt was assigned to / purchased by Lowell portfolio Ltd on xxxxx and notice served pursuant to the law of property act 1925

Particulars

RE cap one AC XXXXXXXXXXXXX

And the claimant claims xxxxx

The claimant also claims interest pursuant to S69 county court Act 1984 from xx/12/12 to date at 8% per annum amounting to xxx


What have we done so far:

A claim was issued on 28/08/2013 by Bryan Carter on behalf of Lowell

AOS was submitted on 31/08/2013 We intend to defend all of this claim

AOS received on 02/09/2013 on MCOL

CPR 31request sent to B Carter 3 Sept (recorded delivery)

CCA requestsent to B Carter, Lowells & Cap one3 Sep (recorded delivery)

Letter received from BC dated 5 Sep ref CPR request – normal response he confirms he has nevertheless requested this information from Lowells but it will not be within 7 days

Letter received from BC dated 9 Sep ref CCA request – Enclosed is our postal order and telling us to contact Lowell for this info (already done above) He has placed account on hold for fourteen days after which debt collection may resume.

Brief info on account (alleged debt)

OH had CapOne card which defaulted Oct 2010. Entered in to agreement and paid a sum of over £50 per month to settle account over a period of time. (Do not want to elaborate on actual payment amount made monthly because of prying eyes). Never received any statement of accounts and on my say contacted CapOne (verbally) to ask for account summary – to find that hardly anything had come of balance. We strongly believe unlawful charges interest and PPI were still on this account and put it in dispute (verbally). Nothing was heard for a while then Jan 2013 received letter from Lowell Portfolio I Ltd stating they had written and told us that they had bought the outstanding balance owing to CapOne (we have never received any letter stating they had bought this account!)

We are positive that PPI, charges and interest are the bulk of this claim. But to prove this we require the information requested.

Questions and what is our course of action if you please:

1.We never received a letter before action

2.We are not aware of the debt being bought by Lowell or served assignment etc

3.Cannot remember receiving any default at the time from CapOne or anyone else

4.This agreement was taken out in 2002 online and OH never received any TCs etc – possibly unenforceable to start with

5.Can he charge interest on unlawful charges and interest

6.Is he supposed to file a claim in Court without the important documents to hand ie the agreement etc

7.If there were no charges to this account or interest how is it that the amount originally defaulted on was higher than the agreed credit limit (said liberally in the absence of said agreement)

8.The CRA file originally showing this default has now been moved from my OH file after I sent an email to Lowell asking if they had the right person and reminding them of their obligations ref their handling of sensitive information following 2 x unsolicited emails sent to us. Would this suggest they are probably not sure in the first instance

Reference the CCAs sent above I requested

I requested only the assignment mentioned in the POC and the agreement. I am assuming my CCA request where I ask for accounts and charges etc will provide the information required. These should be with me before I need to file my defence if I am right in thinking 12 days + 2 for posting.
CCA request to all involved requests the following:

1. A true signed copy of all original credit agreements.
2. A full statement of account / including PPI payments / unlawful fees added to this account
3. A copy of any other documents referred to in the agreement
4. Fair Processing Notice.
5. The assignment

The CPR 31 request received by Bryan Carter on 4 Sept has resulted in the letter above stating he will nevertheless contact his clients. The time is now up and I am wondering what would be the next step to take as he has not complied with my request. Is there a template or what action would I now take?

A CPR part 18 was sent recorded delivery on the 11 Sep and received by Bryan Carter.
Letter received from Bryan Carter ref Part 18 request:

We consider your request to be inappropriate in light of it being disproportionate in scope and disproportionate given the amount of the potential claim which will no doubt be allocated to the small claims track. Furthermore the claim is vague and the claimant cannot be expected to properly respond.

You have previously been provided with documentation and the re-production of these documents does not warrant a Part 18 request.
The original creditor Capitol One supplied a copy of the agreement at the point of contract and statements throughout the terms of the agreement.

Nevertheless, we have requested copies of certain documentation and we refer you to our response to your Part 31 request in this regard.

Prior to this on 10 Sept I sent another letter recorded delivery reminding him of his obligations with reference to my CPR 31 request and reiterated that if he needed more time he must contact me and request further time within the 7 days allowed. To date nothing has been heard and 7 days has well and truly passed.

Phoned Carters this morning Sat 14 Sep. Told them I was going to request more time CPR Part 15.5 and was told that they would not allow it.
I was initally told that they had placed the account on hold for 60 days but when I informed the polite gent that I had not received anything in writing and that I was working to the courts clock not his he was a little taken back.
Ref the alleged agreement mentioned on the POC I asked if it was their normal practice to issue a claim against someone through the courts with out checking the validity and existance of the paperwork that they would be relying on in court to which he stated they were in order! I then replied well if they are in order you must have seen them, and if so, why have they not been forwarded to me under my Part 31.14 CPR request? He then answered "Ah well my client assures us that they are in order" Personally I think its bull s@@t.

How can I move forward now?
Do I send a Part 15.5 request - although they have said they will not agree to more time?
Do I plead an embarrassed defence?
Is there another action that I can take

How can I defend what I know nothing of, and the other party will not disclose

Your thoughts appreciated please as we go on holiday 22 Sep to 6 Oct and do not want to return to a default judgement

[pt2537]

Re: Help Carter \ Lowell old Cap1 debt - claim form issued on 28 Aug

Hi,

If the agreement was executed online, then in 2002 it would have been improperly executed and may well be unenforceable.

The failure to serve a letter of claim is an abuse of the CPR Pre Action Protocol Practice Direction, and has some pretty severe consequences for a claimant if they are taken.

Their refusal to grant you an extension is a big problem for them too. Here is a letter that i used before to good effect.

Pursuant to CPR Rule 15.5 I hereby request that you agree an extension of time for my Defence to be filed. An extension is necessary to obtain disclosures from you and for me to seek legal advice once disclosures have been provided. Should you refuse i will apply for an order of the Court allowing such an extension and shall cite your refusal as being unreasonable conduct and shall seek the costs of the application from you. I trust this will not be necessary. I require that you confirm your agreement to an extension of time for the defence by 4pm on ............... 2013 at which point I will have no choice but to apply to protect my position. I am happy to receive correspondence by email for speed on this occasion.

I also require copies of documents mentioned in your statement of case.

Your claim refers to the following documents

1. A regulated agreement regulated by the Consumer Credit Act 1974.
2. An assignment
3. Notice of assignment

In addition, since the assignment and notice are both mentioned in the Claim, I am entitled per CPR rule 31.14 to request copies of the documents mentioned in the claim, therefore i ask for copies of items numbered 1-3 above to be provided to me.

CPR Rule 31.15 sets down clear time frames for providing documents mentioned in a Claimants statement of case, and we would point out that you have 7 days per rule 31.15 to provide the requested documentation starting from the day after service of this letter.

I undertake to pay your reasonable copying costs of providing these documents; however we are prepared to accept electronic copies to keep costs down to a minimum.

If they do refuse to allow an extension of time your only hope is to apply to the Court. The problem you have, is courts dont stop for holidays, if you havent sorted this out before you go then you will end up with a default judgment against you.

[Yorik]

Re: Help Carter \ Lowell old Cap1 debt - claim form issued on 28 Aug

pt2537 Many thanks for your reply. I will action this straight away

[Yorik]

Re: Help Carter \ Lowell old Cap1 debt - claim form issued on 28 Aug

Ok. Update so far.

I have received a reply from cap one today (18 Sep) dated 11 Sep ref CCArequest. They have provided a reconstituted copy of the (alleged) originalagreement.
I will be quite happy to put these for you to view once scanned in and covered anysensitive information.
The signature page provided is a scanned copy of the top of an Application formshowing just name and address, the signature page of the agreement only at thebottom. (In fact this is headed Application) Included on the reverse was anextract of the terms of your original agreement (including the prescribedterms) or the full terms of your agreement, which can be referred to in thereconstituted agreement enclosed. (There is nothing on the back!)

Personally I think it stinks for want of better words and would appreciatesomeone in the know scanning through on my behalf. There appears to be a lot ofconflicting information - and no statement of account! All it says is that thisdebt has been sold to Lowell and we must contact them for this information.
Ref the page that shows our terms ofcredit agreement with Capital One:
1. Shows the Credit limit as £2000 (which isuntrue when first taken out it started at £ 400 \ £500) It is not dated.
2. On the back pagethe info is wrong as the figures detailing the default charges are completelydifferent to those included in the reconstituted copy of “original agreement”
3. The sectionsreferred to in the Credit Card Agreement do not match the sections on our “originalagreement” (as forwarded by themselves Cap One) how can this possibly be a truecopy or even reconstituted if the information contained conflicts?
4. On the Terms andConditions page, overleaf, the "Theft, loss or misuse of card" - refPPI is not ticked or signed by my OH! If that is the case how could they possiblycollect PPI payments, which they were before we cancelled?

[Yorik]

Re: Help Carter \ Lowell old Cap1 debt - claim form issued on 28 Aug

Totally confused

[Yorik]

Re: Help Carter \ Lowell old Cap1 debt - claim form issued on 28 Aug

Question:

It states "The signature page provided is a scanned copy of the signature page of the original agreement only? Included on the reverse was an extract of the terms of your original agreement (including the prescribed terms) or the full terms of your agreement, which can be referred to in the reconstituted agreement enclosed.

If they have the original agreement with signature - why can they not provide a copy of the reverse? Including the prescribed terms?

Is this an Application or an Agreement?
http://www.staffsacf.org/LOW/Agreement%20blanked.pdf