**DISCONTINUED** Lowell Finance/Brian Carter solicitors

[Twinks143]

Re: Lowell Finance/Brian Carter solicitors

Hi Flaming Parrot,

Thank you for your quick response.

No, no response has been received from Lowells.
This was 2005 and I have no paperwork that I've saved from this date so have no idea if I ever received a default notice or notice of assignment. Not much help I know but it was such a long time ago!

Is there a fee to also file a defence? I have been looking at the numerous threads on here and am still confused as there appears to be no "right" way to do this. If I go for an Unless Order do I still have to file a defence or does this supersede it?

Sorry for all the questions but it's very confusing.

What would happen if I went down the "unless order" order route - is there a set procedure and would I need to go to Court and get a solicitor?

Thanks so much for all your help - I'd be truly lost without this site. Will take a look at the link - thank you. Twinks x

[Twinks143]

Re: Lowell Finance/Brian Carter solicitors

have just checked claim form which states debt was assigned to Lowell on **/**/05 and notice served pursuant to the law of property Act 1925. No mention of default notice.

[FlamingParrot]

Re: Lowell Finance/Brian Carter solicitors

Is there a fee to also file a defence?

No, no fee.

I have been looking at the numerous threads on here and am still confused as there appears to be no "right" way to do this. If I go for an Unless Order do I still have to file a defence or does this supersede it?

The idea is to ask the court to order them to produce the documents you need for your defence or get the case struck out. This is an example of unless order success: http://www.legalbeagles.info/forums/...ers#post453360

Sorry for all the questions but it's very confusing.

That's OK, that's what we're here for. :grouphug:

What would happen if I went down the "unless order" order route - is there a set procedure and would I need to go to Court and get a solicitor?

Thanks so much for all your help - I'd be truly lost without this site. Will take a look at the link - thank you. Twinks x

You'd need to fill in an N244 form. You will find some pointers here: http://www.legalbeagles.info/forums/...011#post393011

You wouldn't need a solicitor. As for going to court, most applications tend to be handled with a hearing but as you will have seen on the thread I posted above, there may be exceptions. In any case, you can do it all as a litigant in person without legal representation. :thumb:

[FlamingParrot]

Re: Lowell Finance/Brian Carter solicitors

have just checked claim form which states debt was assigned to Lowell on **/**/05 and notice served pursuant to the law of property Act 1925. No mention of default notice.

The particulars of claim seldom mention it, however, it is implied that you would have defaulted on the account (or else they wouldn't be suing you) and that being the case, a DN should have been issued. MBNA would have issued it, not Lowell. A lot of MBNA DNs are defective in some way or other, hence my asking.

[Twinks143]

Re: Lowell Finance/Brian Carter solicitors

Hi,

Can someone please have a look at my defence and advise if I am missing anything or should include anything further. I have based this on another similar case that I found on here.

"Preliminary Matters

1. The Claimants claim form fails to adequately set out the nature of the Claim.

2. The Defendant avers that the Claimants pleadings are an abuse of process. The Claimants pleadings are lacking detail, there are no details as to when the alleged default occurred, the degree of default, despite requests for information from the Defendant, the Claimant has not provided any details as to how the sums claimed have accrued. Accordingly the Defendants contend that the pleadings are wholly inadequate for a contested matter and that the Claimant should be required to plead its case coherently and accurately as required by the CPR 16 and PD 16. The Defendants reserve the right to replead their defence should the Claimant replead its claim adequately

3. The Defendant accepts the claim was issued in the Northampton County Court Bulk Centre and that there are restrictions on pleading. However the bulk centre rules clearly state that if you cannot plead in the allowed number of characters then you should not use the Bulk Centre or in the alternative the Claimant was at liberty to issue and set out that particulars were to follow.


The Claim

4. The Defendant believes this claim may relate to a credit card account with MBNA but without further details is unable to be certain.

5. The particulars of claim fail to state when the agreement was entered into.

6. The sparse particulars of claim state that the account was assigned/purchased by Lowell Portfolio Ltd on **** 2005 and notice served pursuant to the Law of Property Act 1925. The Defendant does not recall receiving notice of this assignment.

7. Upon the Claimant clarifying matters set out above the Defendant reserves his position to amend this Defence further. The Defendant shall seek the costs of the amendments from the Claimant due to the Claimants failure to plead its case adequately.

8. In respect of matters, which the Defendant is able to plead to, on the 1 July, 13^th July and 20^th July the Defendant sent “recorded delivery” requests for information to the Claimant. The request was made pursuant to s78 (1) Consumer Credit Act 1974 to ascertain the agreement, which the Claimant was demanding payment under and to obtain further information about the terms of the contract.

9. The Claimant has failed to reply and has not disclosed any documents relating to their claim to the Defendant. 1

10. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

11. The Defendant has not yet been able to examine the terms and conditions which were in force at the time that the agreement was executed and therefore reserves the right to amend these pleadings to address any breaches that are identified if such terms and conditions are disclosed by the Claimant. The amendment will be due to the lack of disclosure by the Claimant and the failure to respond to the s78 CCA 1974 request correctly and the Defendant therefore also reserves the right to claim the costs of such amendment from the Claimant.

12. The Defendant has also sent a request for inspection of documents on the 13^th July to Lowell Portfolio mentioned in their statement of case as allowed under CPR 31.14. The Claimant has not replied to this letter.

13. The Defendant has refused the claimant an extension of time for filing a defence and suggests that the Claimant use her own records. The Claimant has not kept any financial records from 2005.

14. For the avoidance of doubt the Defendant requires the Claimant to plead effectively and disclose the legible documents upon which the Claim is based. In the event the Claimant fails to replead, then the Defendant reserves the right to apply for whatever orders it deems fit including an order striking the Claim out.

Default Notice

15. It is denied that the original creditor MBNA, served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

16. Due to the Claimants failure to allow the Defendant to inspect the Default notice alluded to within the Claim form the Defendant is prejudiced.

17. Accordingly the Defendant reserves his position to amend this Defence with the costs of the same paid by the Claimant if the Claimant provides a copy of the Default Notice.

Notice of sums in arrears.

19. It is denied that the Claimant has served notice of sums in arrears pursuant to s86B Consumer Credit Act 1974. A notice of sums in arrears is a condition precedent on enforcement and therefore the Claimant is not entitled to enforce the agreement.

Conclusion

Accordingly, the Defendant avers that

20. The Claimant has failed to plead properly in this matter and has failed to provide any information relating to this debt.

21. The Claimant has not complied with s78 or 86, and 87 Consumer Credit Act 1974 and therefore cannot enforce the agreement.

22. The Claimants attempts at claiming post judgement interest are an attempt at unjust enrichment. The Defendant refers to s74 County Courts Act 1984 and section 2 of the County Courts (Interest on Judgement Debts) Order 1991 as a statutory bar on the Claimants claim to interest. Furthermore no contract entitling the Claimant to post judgement interest has been adduced in evidence and accordingly there is no entitlement to post judgement interest. Interest being owed as claimed is denied.

23. Therefore, the Claimants Claim should be dismissed and the Claimant should pay the Defendants costs.

Statement of Truth
The Defendant believes that the facts stated in this Defence are true."


Thanks very much.
Twinks

[Twinks143]

Re: Lowell Finance/Brian Carter solicitors

Can anyone help with this please as I need to file by Tuesday.

[Amethyst]

Re: Lowell Finance/Brian Carter solicitors

Hiya [MENTION=50561]Twinks143[/MENTION]s xx going through the defence now for you xx

[Amethyst]

Re: Lowell Finance/Brian Carter solicitors

[MENTION=50561]Twinks143[/MENTION] Could you just type out the particulars of claim off the claim form for me please. I can't see it on here and need to cross reference with the defence.

[Twinks143]

Re: Lowell Finance/Brian Carter solicitors

Hi Amethyst,

Thank you so much for your help.

Yes the particulars of claim are as follows:-

"This claim is for £1,4*** 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 Portofolio Ltd on **/06/05 and notice served pursuant to the law of property act 1925

Particulars
Re: MBNA - UK
A/c No: *****

and the claimant claims £15**.**

The claimant also claims interest pursuant to S69 County Court Act 1984 from **.06.05 to date at the rate of 8% per annum amounting to £1,***.91"

Many thanks for your time and assistance.

Twinks x

[Amethyst]

Re: Lowell Finance/Brian Carter solicitors

"Preliminary Matters

1. The Claimants claim form fails to adequately set out the nature of the Claim.

2. The Defendant avers that the Claimants pleadings are an abuse of process. The Claimants pleadings are lacking detail, there are no details as to when the alleged default occurred, the degree of default, despite requests for information from the Defendant, the Claimant has not provided any details as to how the sums claimed have accrued. Accordingly the Defendants contend that the pleadings are wholly inadequate for a contested matter and that the Claimant should be required to plead its case coherently and accurately as required by the CPR 16 and PD 16. The Defendants reserve the right to replead their defence should the Claimant replead its claim adequately

3. The Defendant accepts the claim was issued in the Northampton County Court Bulk Centre and that there are restrictions on pleading. However the bulk centre rules clearly state that if you cannot plead in the allowed number of characters then you should not use the Bulk Centre or in the alternative the Claimant was at liberty to issue and set out that particulars were to follow.


The Claim

4. The Claimant states the claim relates to a credit card account with MBNA but without further details the Defendant is unable to identify such an account within his own records.

5. The particulars of claim fail to state when the agreement was entered into or what the agreement was for. The Defendant believes it would have been finance as MBNA issue credit cards and is unaware of any goods or non financial services supplied by MBNA to its customers.

6. The particulars of claim state that the account was assigned/purchased by Lowell Portfolio Ltd on **** 2005 and notice served pursuant to the Law of Property Act 1925. The Defendant does not recall receiving notice of this assignment.

7. Upon the Claimant clarifying matters set out above the Defendant reserves his position to amend this Defence further. The Defendant shall seek the costs of the amendments from the Claimant due to the Claimants failure to plead its case adequately.

8. In respect of matters, which the Defendant is able to plead to, on the 1 July, 13^th July and 20^th July the Defendant sent “recorded delivery” requests for information to the Claimant. The request was made pursuant to s78 (1) Consumer Credit Act 1974 to ascertain the agreement, which the Claimant was demanding payment under and to obtain further information about the terms of the contract.

9. The Claimant has failed to reply and has not disclosed any documents relating to their claim to the Defendant. 1

10. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

11. The Defendant has not yet been able to examine the terms and conditions which were in force at the time that the agreement was executed and therefore reserves the right to amend these pleadings to address any breaches that are identified if such terms and conditions are disclosed by the Claimant. The amendment will be due to the lack of disclosure by the Claimant and the failure to respond to the s78 CCA 1974 request correctly and the Defendant therefore also reserves the right to claim the costs of such amendment from the Claimant.

12. The Defendant has also sent a request for inspection of documents on the 13^th July to Lowell Portfolio mentioned in their statement of case as allowed under CPR 31.14. The Claimant has not replied to this letter.

13. The Defendant has refused the claimant an extension of time for filing a defence and suggests that the Claimant use her own records. The Claimant has not kept any financial records from 2005.

14. For the avoidance of doubt the Defendant requires the Claimant to plead effectively and disclose the legible documents upon which the Claim is based. In the event the Claimant fails to replead, then the Defendant reserves the right to apply for whatever orders it deems fit including an order striking the Claim out.

Default Notice

15. It is denied that the original creditor MBNA, served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

16. Due to the Claimants failure to allow the Defendant to inspect the Default notice alluded to within the Claim form the Defendant is prejudiced.

17. Accordingly the Defendant reserves his position to amend this Defence with the costs of the same paid by the Claimant if the Claimant provides a copy of the Default Notice.

Notice of sums in arrears.

19. It is denied that the Claimant has served notice of sums in arrears pursuant to s86B Consumer Credit Act 1974. A notice of sums in arrears is a condition precedent on enforcement and therefore the Claimant is not entitled to enforce the agreement.

Conclusion

Accordingly, the Defendant avers that

20. The Claimant has failed to plead properly in this matter and has failed to provide any information relating to this debt.

21. The Claimant has not complied with s78 or 86, and 87 Consumer Credit Act 1974 and therefore cannot enforce the agreement.

22. The Claimants attempts at claiming post judgement interest are an attempt at unjust enrichment. The Defendant refers to s74 County Courts Act 1984 and section 2 of the County Courts (Interest on Judgement Debts) Order 1991 as a statutory bar on the Claimants claim to interest. Furthermore no contract entitling the Claimant to post judgement interest has been adduced in evidence and accordingly there is no entitlement to post judgement interest. Interest being owed as claimed is denied.

23. Therefore, the Claimants Claim should be dismissed and the Claimant should pay the Defendants costs.

Statement of Truth
The Defendant believes that the facts stated in this Defence are true."

[Twinks143]

Re: Lowell Finance/Brian Carter solicitors

Thank you so much Amethyst. I will get off tomorrow and advise you of developments. Your time and dedication is very much appreciated by all of us who don't have a clue what we are doing!!

[Amethyst]

Re: Lowell Finance/Brian Carter solicitors

Not a problem, sorry to have hit and run with the edits this morning xxx Fingers crossed for a decent Judge. You should hear something within the next 28 days, soon as you do let us know. How are you submitting? If paper/email make sure you put the heading on , and sign the statement of truth at the bottom

eg

IN THE NORTHAMPTON COUNTY COURT (CCBC)

CASE No: xxxxxxxxxx

BETWEEN:

xxxxxxxxxxxxxxx

CLAIMANT

And

your name

DEFENDANT

__________________________________________________ _________________________
Defence
__________________________________________________ ______

[Twinks143]

Re: Lowell Finance/Brian Carter solicitors

Hi Amethyst, I've done it online so fingers crossed! I will await developments - great to see that others too are not just taking this lying down!

[Amethyst]

Re: Lowell Finance/Brian Carter solicitors

Hi Amethyst, I've done it online so fingers crossed! I will await developments - great to see that others too are not just taking this lying down!

Best of luck xxx

[Twinks143]

Re: Lowell Finance/Brian Carter solicitors

Hi,

I've not been on here for a while as I hadn't heard anything from BC solicitors and it is way past the 28 days. However, I did receive a letter from them yesterday stating:-

"Please see attached letter sent to the Court confirming that the Claimant wishes to proceed with the claim at this time.

The claimant agrees in principle to mediation.

We should also be grateful to hear from you in relation to without prejudice negotiations and you may contact us on *****.""

The letter to the court thanks the Court for sending the Defence and asks the Court for Directions. Are they allowed to do this given that they are out of the time limit and should have responded to my defence within 28 days.

My defence was filed on 4 August and their letter is dated 3 October - nearly two months later.

Can someone please let me know what I should do next.

Thanks for all your help.

Regards,
Twinks