Defence advice.

[Andrew Martin]

Hello everyone.

I have received a County Court Claim form from Lowell/BW Legal for a Capital One credit card. I am confused about having a Capital One card (I have had mental health problems for some time). I made an AOS on the MCOL site, saying I would be defending in full. I have made a CCA1974 and 31.14 request to no avail – 12 days have passed. I now have to write a defence but have been unable to find any advice about this. My defence has to be in by Friday this week.



Any pointers would be very much appreciated.


A.

[CleverClogs]

Re: Defence advice.

I believe that I'd use their customary failure to comply with a s78(1) request, which should mean (unless the judge is on crack) that they may not obtain judgement in their favour as long as they continue to default on that request.

You did send them the statutory £1 fee, didn't you?

[Andrew Martin]

Re: Defence advice.

Many thanks for your reply.

So I would just state that they have failed to comply with my request? I didn't know if it had to be worded in any particular way.

Yes, I enclosed the fee and sent the letter next day delivery to be sure.

A.

[CleverClogs]

Re: Defence advice.

It should indeed be worded in a clear and concise way.

I'll ask someone to pop in to help.

[Andrew Martin]

Re: Defence advice.

Thanks very much, CleverClogs.

[Amethyst]

Re: Defence advice.

What date is your defence due in ?

How much is the claim for?

What date did you send the CCA request to Lowell ?

Have you followed up on your CPR request at all ? There's a couple bits in here for the next steps on following the CPR request up if you are still in time to do so.

http://www.legalbeagles.info/forums/...ic-information

Also it would really help if you could type up the particulars of claim from the original claim form (exclude account number/name)



Once we know those bits we can help sort out a defence.

[Andrew Martin]

Re: Defence advice.

Thanks very much for your reply. In answer to your questions:

Defence due in March 1st.

The claim is for £649.99.

I sent the CCA and CPR request on the 5th Feb. They got it the next day - BW Legal sent me a letter confirming and saying that they may or may not be able to supply the documents within 12 days.

I made no follow up to CPR – was unaware this was a possibility. Thanks for link – will read up but I think I am out of time.

POC:

The Claimant's Claim is for the sum of 601.99 being monies due from the Defendant to the Claimant under a credit/store card agreement regulated by the Consumer Credit Act 1974
between the Defendant and Capital One (Europe) PLC

Under account reference ************* and assigned to the Claimant on 14/03/2008
notice of which has been given to the Defendant.

The defendant failed to maintain the contractual payment under the terms of the agreement
and a default notice has been served and not complied with.

The claim also includes statutory interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8.00% per annum (a daily rate of 0.08) from the date of the assignment of the agreement to the date of issue (24/01/2014) being an amount of 171.44.

Many thanks for any advice.

A.

[Amethyst]

Re: Defence advice.

Okay, might be worth giving B W Legal a call and asking if they will agree to an extension on your date for filing defence so they may supply the documents you have requested under CPR 31.14 . If not then we can either continue with enforcing the CPR request through the court with the application I've detailed in that linked guidance, OR by entering a defence which basically does the same thing (gets the court to order supply of the documents or strike out the claim ).

As we have no idea what the actual claim is and you do not recognise the debt I think we'd be quite safe with a defence on those lines but you do need to demonstrate to the court you have tried to find out the info (hence the CCA and CPR requests).

If you give them a call ref an extension tmw (if you want to - or you can email them) and let us know what they say, then we can work on the next bits to get to court Wednesday if necessary.

[Andrew Martin]

Re: Defence advice.

Thanks for your reply.

I would not be able to phone them because I have anxiety issues and would not be able to get across what I want. I have just sent an email, and I will let you know what they say.

A.

[pt2537]

Re: Defence advice.

Thanks for your reply.

I would not be able to phone them because I have anxiety issues and would not be able to get across what I want. I have just sent an email, and I will let you know what they say.

A.

Hi

One concern that ought to be raised here, if you have anxiety issues about calling the opponents, how do you think you will fare in Court giving evidence?

Its an important point to consider, as your evidence will be key to the case and if you cant speak on the phone then you need to consider carefully whether you can give evidence in Court.

[Andrew Martin]

Re: Defence advice.

Hi

One concern that ought to be raised here, if you have anxiety issues about calling the opponents, how do you think you will fare in Court giving evidence?

Its an important point to consider, as your evidence will be key to the case and if you cant speak on the phone then you need to consider carefully whether you can give evidence in Court.

Thanks for your reply.

That is a good point, and I do not believe I would be able to do that. Perhaps this is not the way to go. What would you suggest? Should I put in the admissions form and see if I can address the CCJ later?

A.

[pt2537]

Re: Defence advice.

Thanks for your reply.

That is a good point, and I do not believe I would be able to do that. Perhaps this is not the way to go. What would you suggest? Should I put in the admissions form and see if I can address the CCJ later?

A.

It is difficult, on the one hand you may have a legitimate Defence, but if you are not going to be able to give evidence in Court then that may just fall by the way side. The old saying you can lead the horse to water but cant make it drink seems fitting here im afraid.

It is diffficult to know what you can or cannot do to defend this case with such limited information. I cannot advise you to file an admission as that my be the wrong approach , i dont know.

[Andrew Martin]

Re: Defence advice.

It is difficult, on the one hand you may have a legitimate Defence, but if you are not going to be able to give evidence in Court then that may just fall by the way side. The old saying you can lead the horse to water but cant make it drink seems fitting here im afraid.

It is diffficult to know what you can or cannot do to defend this case with such limited information. I cannot advise you to file an admission as that my be the wrong approach , i dont know.

Thanks for your reply. I will have to give it some thought. My health is very poor and varies on a daily basis, so going to a court would be almost impossible during a bad period, even with my support worker, who I have to have with me to do everyday things when I leave my house.

A.

[Amethyst]

Re: Defence advice.

Well, you can't admit a debt you don't know about but I completely understand about the telephone and anxiety and PT does make a good point.

You could defend on the basis that they have not responded to your CCA request and CPR, as opposed to applying for an order to make them comply, but that could also result in a hearing (although most of the time the order is just put through withour a hearing or the claimant withdraws)

You can have someone go to court with you, like a MacKenzie Freind, if you have someone who might be able/willing to do that?

Otherwise, if you need to avoid the CCJ, you could negotiate directly with the claimants, they quite often do arrange a consent order for an affordable payment amount keeping the claim stayed in court as security (ie if you miss payments they can then apply for the CCJ to go through) and we can help draft a letter to send to them via email.

Can you check bank statements or anything back when this card might have been around to see if you were making payments to it at all. I suspect it is borderline statute barred if it was assigned to Lowell back in March 2008. It is likely that you defaulted a couple of months at least before then.

[Andrew Martin]

Re: Defence advice.

Well, you can't admit a debt you don't know about but I completely understand about the telephone and anxiety and PT does make a good point.

You could defend on the basis that they have not responded to your CCA request and CPR, as opposed to applying for an order to make them comply, but that could also result in a hearing (although most of the time the order is just put through withour a hearing or the claimant withdraws)

You can have someone go to court with you, like a MacKenzie Freind, if you have someone who might be able/willing to do that?

Otherwise, if you need to avoid the CCJ, you could negotiate directly with the claimants, they quite often do arrange a consent order for an affordable payment amount keeping the claim stayed in court as security (ie if you miss payments they can then apply for the CCJ to go through) and we can help draft a letter to send to them via email.

Can you check bank statements or anything back when this card might have been around to see if you were making payments to it at all. I suspect it is borderline statute barred if it was assigned to Lowell back in March 2008. It is likely that you defaulted a couple of months at least before then.

Thanks for your reply. I doubt very much I would be able to go to a court hearing even with my support worker. To be honest I rarely go out.

My friend is bringing over some of my boxes of papers which have been in storage since I moved so I will look through it. She has been away or I would have do this by now. I have made payments to a number of things in the past and this is where I am really confused.

I don't think a CCJ would affect me one way or the other as it seems to apply to mortgages and credit, and I don't believe I would ever have dealings with, given my situation.

Thanks,

A.