Court claim for overdraft.

[Trickky33]

Hi all,

On the 21st of March I received a claim for from Northampton bulk centre. The amount claimed is just shy of £1400. The Solicitor is representing Lowells, who bought the debt from Lloyds TSB in 2009. I have acknowledged service on 21/03/14 but not yet submitted a defence.

I ceased banking with Lloyds in 2006 and tho I have no statements to back this up, at that point I was not indebted to Lloyds. I held a current account with an interest free overdraft, with a £300 limit. In order to take out the interest free overdraft I was sold an insurance package, tho I do not recall what it was for, possibly mobile insurance and dental/healthcare.

Since 2006 it seems Lloyds have been charging me a monthly fee, they have increased the overdraft from £300 to the amount to >£1300 to pay for this fee without informing me. Then in 2009 they decided that the £1000 increase to my £300 limit overdraft was enough and sold the debt to Lowells.

I have asked, in writing, for deed /notice of assignment and copy of credit agreement from Lowells and Bryan Carter Solicitors. I have had a written response from both:

Lowells say,that they sent notice of assignment 30/07/13 (I have yet to receive it). They advice that they are under no obligation to provide full accounting, they then go on to say that the account is currently being handled by Fredriksons and all future correspondence should be directed to them in the first instance.
(So why is Bryan carter Solicitors claiming on Lowells behalf as stated on the claim form)??

Bryan Carter, also states that I have been sent Notice of assignment however they claim this was 24/06/13???
They then say: It is the policy of the original creditors to provide agreements at the point of contract and statements throughout the duration of the account; consequently, you have previously been provided with validation of the debt. If you require copies of these documents you may apply to our client at the address below: Lowell Portfolio Ltd, Po box 172...

The reposes from both parties do not include any of the information I have requested,
Lowells are listed as the claimant on the claim form but are sending me on a run around insisting that I must now correspond with Fredriksons (I phoned Fred's and they said "You have to request from Bryan Carter") Bryan Carter put in writing that I must contact Lowells

I signed the acknowledgment 8 days ago so I'm running out of time to file a defence, yet the only information I have been given is that I owe £1300. The three parties involved are sending me back and forth, Im sure they have an obligation to either supply the information or pass the request on to the appropriate party?

So what's next? Do I apply to the court for extra time to submit a defence? Or do I file a defence that the case be thrown out for either deliberate or incompetent withholding of the information I have requested?

I must admit I'm starting to feel rather lost

[Trickky33]

Re: Court claim for overdraft.

Another avenue is that the debt may be statute barred. I have not made a payment to Lloyds or acknowledged a debt to them since 2006. So as far as Section 5 of the limitations act 1980:

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

I would be able to submit a Statute Barred defence.

However Section 6 reads,

6 Special time limit for actions in respect of certain loans. (1)Subject to subsection (3) below, section 5 of this Act shall not bar the right of action on a contract of loan to which this section applies.

(2)This section applies to any contract of loan which—
(a)does not provide for repayment of the debt on or before a fixed or determinable date; and
(b)does not effectively (whether or not it purports to do so) make the obligation to repay the debt conditional on a demand for repayment made by or on behalf of the creditor or on any other matter;

except where in connection with taking the loan the debtor enters into any collateral obligation to pay the amount of the debt or any part of it (as, for example, by delivering a promissory note as security for the debt) on terms which would exclude the application of this section to the contract of loan if they applied directly to repayment of the debt.

(3)Where a demand in writing for repayment of the debt under a contract of loan to which this section applies is made by or on behalf of the creditor (or, where there are joint creditors, by or on behalf of any one of them) section 5 of this Act shall thereupon apply as if the cause of action to recover the debt had accrued on the date on which the demand was made.

This seems to say that the overdraft becomes Statute Barred six years from the day that the creditor decides to recall the overdraft/makes a Demand for payment.

So in my case, I truly believe that when I ceased banking with Lloyds last made payment/acknowledged a debt with Lloyds in 2006, I was not indebted to them (into my overdraft) however they continued increase the overdraft for a further three years (up until 2009 and £1300 in arrears) and it this point that they recalled the overdraft.

I appreciate that some here will believe that Section 5 applies and that some here will believe that an overdraft is what is being referred to in Section 6, subsection b. I really don't want to spark a debate on this, but...

If I was not in my overdraft in 2006, and the £1300 debt I am being chased for is made up of mis payments for an insurance product, and Lloyds bank have extended a £300 limit overdraft to £1300 without informing me or asking my consent , to pay for this product, then:

-Can I argue as a defence that Section 6/subsection3 does not apply, as the debt is for a product not an overdraft?

-Lloyds are only due £300 (the credit limit offered to and agreed by me)?

Or am I barking up the wrong tree entirely?

I would be really grateful for any input anyone can offer,

Trickky.

[leclerc]

Re: Court claim for overdraft.

Interesting but I was thinking of two things, misselling of a packaged account ie that the insurance was never explained to you and therefore was missold as you may have double covered it OR statute barred regardless of anything.

[wales01man]

Re: Court claim for overdraft.

Are the Dates shown o here correct?

[Amethyst]

Re: Court claim for overdraft.

I think definite mis selling on a packaged account and stat barred if you have had no contact since 2006. How long before you ceased using the account was the insurances/overdraft sold to you?

It's possible that your account was clear when you left it and if you were unaware you had been sold a packaged account with a monthly fee at that time and said packaged account was missold - and you never availed yourself of any of the services available under the packaged account then I don't see why you should actually owe the bank anything.

A full SAR request to the bank would get transaction lists, however whether you would get those through 2006 after 8 years is a bit hit or miss.

Stat barring - if you stopped using the account at a zero balance in 2006 and have had no contact with Lloyds since then - Stat Barring could be an option.

I think in the absence of any information from Lloyds/Lowell your defence should go in stating

1) Stat Barred
2) in the case not stat barred, don't owe anything, left account at zero balance 2006, suspect overdraft entirely made of missold packaged account or insurance fees.
3) Lowell not giving you any information on alledged debt despite requests

[jon1965]

Re: Court claim for overdraft.

Personally I think that you will lose on the statute barred defence unless you have copies of the formal demand for payment.
When you stopped banking did you actually tell them and close the account or just leave it going, did they continue sending statements .
I actually think a SAR to lloyds is needed
As for the misselling, was it or could it have been missold?

Does this account appear on your credit file and if it does what date?

Bryan carter is well known for giving people the run around.

Remember your timescale , date of claim +5+14 to acknowledge then +14 to file defence so a total of 33 days from date of issue. If you have sent a CPR request and they haven't complied you need to be asking BC for an extension and them applying to the court

[Trickky33]

Re: Court claim for overdraft.

Personally I think that you will lose on the statute barred defence unless you have copies of the formal demand for payment.
When you stopped banking did you actually tell them and close the account or just leave it going, did they continue sending statements .
I actually think a SAR to lloyds is needed
As for the misselling, was it or could it have been missold?

Does this account appear on your credit file and if it does what date?

Bryan carter is well known for giving people the run around.

Remember your timescale , date of claim +5+14 to acknowledge then +14 to file defence so a total of 33 days from date of issue. If you have sent a CPR request and they haven't complied you need to be asking BC for an extension and them applying to the court

I asked verbally for the account to be closed, not in writing. I did not continue to receive statements.

I am firing of a SAR to Lloyds today, should I send one to BCarter and Lowell also?
Also thinking of sending request under CPR 31.14 and the statute barred letter.

I am unsure as to whether the product was mis-sold as the parties involved will not send me the particulars, the only information I have been given is the alleged debt amount, and the account number (Lloyds current account).

I phoned BCarter today and told them to expect a letter tomorrow (SAR and CPR31.14) and also asked whether they believe the alleged debt is Statute Barred, the person I spoke to said it was not as "The day we put the default on your file resets the date for statute of limitations"
I suggested that this was nonsense, and invited him to put that in writing but he declined.

I also asked that they cease activity and extend the time to file my defence, as they have not provided me with any of the information required, and instead had been deliberately obstructive by sending me back and forth the three of them. Again they declined, saying that they will not provide an extension.

This Friday is the deadline for me submitting my defence, should I submit a defence or is there a way to ask the court for an extension given the obstructive behaviour of BC/Lowells/Freidricksons?

[Trickky33]

Re: Court claim for overdraft.

I think definite mis selling on a packaged account and stat barred if you have had no contact since 2006. How long before you ceased using the account was the insurances/overdraft sold to you?

I am unsure as I have no records, and the DC will not provide them.

It's possible that your account was clear when you left it and if you were unaware you had been sold a packaged account with a monthly fee at that time and said packaged account was missold - and you never availed yourself of any of the services available under the packaged account then I don't see why you should actually owe the bank anything.

I have never availed myself of any of the services available under the packaged account

A full SAR request to the bank would get transaction lists, however whether you would get those through 2006 after 8 years is a bit hit or miss.

And I wont get these before the deadline to file my defence.

Stat barring - if you stopped using the account at a zero balance in 2006 and have had no contact with Lloyds since then - Stat Barring could be an option.

I think in the absence of any information from Lloyds/Lowell your defence should go in stating

1) Stat Barred
2) in the case not stat barred, don't owe anything, left account at zero balance 2006, suspect overdraft entirely made of missold packaged account or insurance fees.
3) Lowell not giving you any information on alledged debt despite requests

If I don't get the required info by Friday then this will most likely be the defence I'm submitting.

If I include a defence that the debt is Stat Barred, it will be up to BCarter to prove otherwise??

[Trickky33]

Re: Court claim for overdraft.

Personally I think that you will lose on the statute barred defence unless you have copies of the formal demand for payment.

Will I need to include proof that it is statute barred then? I thought that I would just include it in my defence, and that it would then be up to Bryan Carter to prove that it is not?

Also there is nothing on my credit file from the Original creditor (Lloyds TSB), but there is any entry from Llowell, The default date they have entered is October 2013.

[Amethyst]

Re: Court claim for overdraft.

Yes indeed.

They do have habits of coming up with odd payments mid way through the stat barred period but are often rather flaky (eg putting a SAR fee to the debt rather than the SAR)

I phoned BCarter today and told them to expect a letter tomorrow (SAR and CPR31.14) and also asked whether they believe the alleged debt is Statute Barred, the person I spoke to said it was not as "The day we put the default on your file resets the date for statute of limitations"
I suggested that this was nonsense, and invited him to put that in writing but he declined.

lol, not suprised x

I wouldn't go with JUST a stat barred defence as it is more complicated with overdrafts, so the back up about the..... mis selling / didnt realise you were being charged etc as you leaving the account at zero on XX date 2007.....etc will assist.

[jon1965]

Re: Court claim for overdraft.

The fact they put a default on your file has bugger all to do with SB
I am no expert on defences but here are a few points
1) The account was closed by you on xxxxxx with a zero balance.
2) You have not received any statements since that date If you had you would have addressed this
3) If there was an outstanding balance (denied) the account would now be statute barred under Limitations act 1980


I am sorry that I can not give anything better but during hopefully someone else can help a little more

You definitely need to SAR the OC. Little point in sending a SAR to BC or Lowells as they will only have records since they bought the account but depending on what they have stated could be worth a shot

[jon1965]

Re: Court claim for overdraft.

Just another point, you say you received the claim on 21 March, well it is only 3rd March now.
If I assume that you received it 21st Feb and acknowledged it the same day you still have until 21st March to lodge your defence at the earliest.
If you are in doubt call the court and ask.
Date of claim x +5 days for service+14 days for acknowledgement+14 days for defence. So lets say the claim is dated 17/2/14 +5 days=22/2/14 . acknowledgement 8/3/14 defence 22/3/14

[Trickky33]

Re: Court claim for overdraft.

Yes indeed.

They do have habits of coming up with odd payments mid way through the stat barred period but are often rather flaky (eg putting a SAR fee to the debt rather than the SAR)

lol, not suprised x

I wouldn't go with JUST a stat barred defence as it is more complicated with overdrafts, so the back up about the..... mis selling / didnt realise you were being charged etc as you leaving the account at zero on XX date 2007.....etc will assist.

I wasn't surprised either :tinysmile_twink_t2:

I am going with,

1, Stat Barred
2, Failure to provide documents requested, or should I say refusal given that each of the parties involved is referring to the other ( stinks of deliberate obstruction to me)

As for the bit about mis selling I don't have exact dates or evidence to confirm this as above: BC/Lowell/Fredrickson refusing to supply the information requested. So where does this leave me?

Also when I submit my defence, I understand that a date will be sent to me for a court hearing. Will I be provided with disclosure by the claimant before the hearing? ie, the copy of the original agreement, statements, T&C's of the insurance package?
Basically will I be able to see the documents they are relying on to prove their claim?

Thanks to all that have replied, I really do appreciate your help.

Trickky

[jon1965]

Re: Court claim for overdraft.

Sorry one last point
Non of the dates you have given add up
Sold in 2009 but NOA not sent until 2013. If it were assigned in 2009 then the NOA should be 2009. My suspicion is that it would have been sometime in 2009 that the demand and default were dated.
You also mention asking for full accounting. Have you been listening to another forum called GOODF? Their approcah is flawed and never successful in defending a claim .
I think a bit more clairty is needed. Can you type out the particulars of claim word for word please (removing personal details like account numbers.
I assume you have checked your credit file, in the closed accounts is there anything from LTSB that relates to this or even anything that shows as satisfied .

[jon1965]

Re: Court claim for overdraft.

I wasn't surprised either :tinysmile_twink_t2:

I am going with,

1, Stat Barred
2, Failure to provide documents requested, or should I say refusal given that each of the parties involved is referring to the other ( stinks of deliberate obstruction to me)

As for the bit about mis selling I don't have exact dates or evidence to confirm this as above: BC/Lowell/Fredrickson refusing to supply the information requested. So where does this leave me?

Also when I submit my defence, I understand that a date will be sent to me for a court hearing. Will I be provided with disclosure by the claimant before the hearing? ie, the copy of the original agreement, statements, T&C's of the insurance package?
Basically will I be able to see the documents they are relying on to prove their claim?

Thanks to all that have replied, I really do appreciate your help.

Trickky

When you submit your defence then BC will be told and the court will write with the next stage. Do not expect it to be within days