WON !! Discontinued !!! - Lowell No CCA County Court

[AjayM]

I am currently facing a County Court date on the 4th September.
It's difficult to know where to begin with this one, it seems to have been going on so long now. Sorry in advance that this is so long winded, but the breakdown of events leading up to this are (as far as I have details):

3/12/09 Letter out of the blue from Wescott Credit Services demanding £2482.77 for a Lloyds TSB debt. I write to them explaining that I know nothing of this debt, I am clearly not the person they are looking for.

4/6/10 Letter from Debt Managers Ltd saying my details have been obtained from a credit reference agency linking me to a Lloyds TSB Bank account. To my recollection, I just sent them a copy of the letter that I had sent to Wescott.

28/10/10 Letter from Credit Security Limited saying that they believe that I am now residing at this address and again quoting £2482.77 owing on a Lloyds Bank account. I reply to this (although again, I don't seem to have a copy of what I sent, but I recall asking for them to send me a copy of the signed CCA)

22/11/10 Credit Security Limited again contact me saying that I have ignored their previous communication and threatening local collectors on me or county court action. I have a letter from me that I sent them in reply in which I allude to sending their letter back to them, stating that it has been sent to me in error, I do not have a Lloyds TSB account, I am not the person they are looking for and requesting that they amend their records and cease sending me threatening letters.

Fast forward to 2013. I'm sure they must have sent me a letter, but I don't seem to be able to find one, but then the phone calls from Lowell start (I can't recall when or how many, but there were a lot). Initially I ignored them, but when they eventually got me at home and I answered. They asked me to "verify" some personal details, and when I said that I wasn't willing to give out personal info over the phone they said that they couldn't discuss the case. I explained the situation nevertheless, and the advisor told me to put it in writing. The phone calls continued, but eventually died down.

Then I remember receiving a letter from Red Debt Collection Services (which again, I don't seem to have a copy of but I do have a copy of my reply dated 14/1/14). In my reply, which I seem to remember getting off MoneySavingExpert I started the letter with “I do not acknowledge any debt to you or any other company or organisation that you claim to be representing”. I then go on to explain the situation, that I have in the past requested a signed CCA to prove it was not my debt and that I had received no such documentation and had considered the matter closed. I also included a bit about the Limitation Act 1980 Section 5: “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”, suggesting that unless they could provide evidence of payment or signed written acknowledgement from me in the relevant period under Section 5 that they would no longer be able to take court action against me, as it would be statute barred, and requested written confirmation that the matter was closed.

21/1/14 A few days later I received a letter from BW Legal saying they had been instructed by Lowell to recover the sum of £2482.77 and to avoid further action I needed to pay within 14 days. I sent them a copy of the letter I had sent to Red Debt Collection.

Around the 10/2/14 two letters arrive together, the first I open is from BW Legal saying they have received my letter and are confirming my request for documentation under s78 of the Consumer Credit Act, that their client may have to forward the request onto Lloyds and the documentation would be forwarded onto me upon receipt. They said they would “seek to ensure that the information… is provided within 12 working days, however this is contingent on receiving the documentation… within the aforementioned timescale.”

The second is what appears to be a Claim form from Northampton County Court. I went to Citizens Advice to get this checked as it required a signature, and I’d read that these companies tried all sorts of stuff to fake a CCA. They advised me that it was legitimate and to send it back to Northampton County Court to buy me more time whilst waiting for what BW legal would send me. This I did, and when the 12 working day deadline came and went with nothing from BW Legal, I thought it best to send in the dispute claim form as I didn’t want the court papers to lapse.

23/4/14 Letter from BW Legal saying their client intends to continue with the claim.

19/5/14 Notice of proposed allocation to the smalls claim track from Northampton County Court, I request the case be transferred to my local county court, still thinking that this is just posturing on behalf of BW Legal. They suggest that I go through mediation, which I attempt, but by the time I get through to them I’m advised that the case has been passed onto a judge for assessment, and that I should hear the outcome of that soon.

28/5/14 Receive a blank copy of the Directions Questionaire (which I had filled in and sent to Northampton CC) from BW Legal “by way of service”.

9/7/14 Whilst I’m away I receive a notice of allocation to the small claims track (hearing) from my local County Court, again suggesting mediation, before my hearing on the 4^th September. It also stated that the claimant must pay a hearing fee of £170 to the court by the 18^th August.

I am currently waiting to hear back from the mediation service about an appointment on the 20^th August, but am unsure about pretty much everything. I initially though that this would go away, that a company couldn’t harass me over a debt that wasn’t mine, and that if they couldn’t provide a signed CCA they would be laughed out of court. However, recent reading from this site has made me doubt all that. Can someone in the know offer me some advice please?

I’ve been out of work for a while, am currently working a badly paid temp job and can’t afford a solicitor, or the time off work to attend a hearing. But equally I can’t afford the £2759.81 that’s now being demanded off me.

Thank you in advance…

[Amethyst]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

Hiya

Could you just confirm was this debt from an overdraft or a loan / credit card ?

Apologies it isn't clear from your post and theres lots about the CCA but also about a Lloyds TSB Bank Account so I'd rather double check with you.


Sharon
xx

[AjayM]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

It's a credit card debt. I had initially assumed that it was a bank account...

[Amethyst]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

Good stuff. Could you post a copy of your defence pls so we know what you're going into court with (if they pay the hearing fee) - without any CCA original oR reconstruction then they don't have much hope of getting judgment.

[AjayM]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

How will I know if they pay the hearing fee or not?

ATM I don't have my defence written down, on the form I sent into the court I just tried to explain things as they stood. (But didn't keep a copy ) not really sure where I need to go from here, how to write my defence, or whether I need to attend my hearing (obviously I need to inform the court if I'm not) to state my case.

I intended my defence to be pretty much as I've outlined above, just stating the facts as they stand, and saying that there have been no details of the account given to me, that no CCA seems to exist, signed or otherwise, so there is no way to prove that it's not my debt. Is this reason enough for a case to be defended? Alternatively, I was thinking that I could go down the statute barred route, but again, I'm not too sure about this as this seems to imply that it's my debt? But I thought that as the letters regarding this started in December 2009, it was a fairly sound assumption that whatever payments were made to this account must have stopped way before that? I could really do with some sage advice on writing this all down into a solid defence. Also, I know I'm meant to send anything I'm going to rely on for my defence to BW Legal, but do I have to send a copy of my actual defence as well?

[AjayM]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

Still lots of questions unanswered, but I have now got a written defence. (Which I'll post shortly in the hope someone will tell me if it's any good/relevant)
My mediation appointment has been confirmed for 20th August, but I don't really know if I should proceed with this, or what it will entail. Is there any way of my finding out if the court fees (due on the 18th) have been paid by then?

I've noticed that in a lot of cases on the forums people have asked to see the particulars from the claim form, here are mine:

The Claimant's Claim is for the sum of 2789.81 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 Lloyds TSB Bank PLC under account ref xxxx and assigned to the Claimant on 30/6/13 notice of which has been give 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% per annum from the date of assignment of the agreement to the date of issue.

[AjayM]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

Defence (borrowed heavily and amended)

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim.

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet as I have repeatedly told Lowell and their associates that this debt does not belong to me, and have asked, but been denied documentation to prove this.

5. In respect of that which is denied, (initially in 2010) I requested that a true copy of the executed credit agreement, which the claimant claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. On 14/1/14 I pointed this out to Red Debt Collection Services (Instructed by Lowells. Copies of the letter included marked Exhibit 1) and was told that the issue had forwarded on to BW Legal. I forwarded this on to BW Legal and received confirmation dated 10/2/14 (Exhibit 2)
5a. Futhermore in the aforementioned letter (Exhibit 1) I formally requested that proof of any acknowledgement of the debt by myself making a payment or in writing within the relevant six year statute barred limitation period for the case.

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states:
s78 (6) If the creditor under an agreement fails to comply with subsection (1)-
(a) he is not entitled, while the default continues, to enforce the agreement; and
(b) if the default continues for one month he commits an offence.

7. It is drawn to the courts attention that the claimant has failed to comply with my request to provide ANY documentation and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor.

8. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

9. Further more, the Civil Procedure Rules in particular practice direct 32 requires that access is granted to the original documents, therefore I require the claimant to provide the defendant sight of the original credit agreement and any terms and conditions that they seek to rely upon in this action pursuant to PD 32

10. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Consumer Credit Act 1974 I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

11. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 10 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

12. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

"The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

13. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

14. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

15. Notwithstanding point 13, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

16. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

17. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

18. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

19. Alternatively if the court decides not to strike out the claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

20. The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

21. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious, and wholly unreasonable.

22. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

[Amethyst]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

I'm a little confused...you already entered a defence so without applying to amend your defence that's what you are going in with. If you wrote down what the situation was, that you have asked for information and non has been forthcoming including under CCA sec 78 then you should be okay.

The claim particulars (thankyou for posting them) are standard - the credit/store card indicates a bit they don't really know what the debt is.


Mediation - information about this should have been given to you in a letter from the court? It should basically be a series of phone calls - but your position will basically be not in a position to negotiate anything as the claimants haven't provided any evidence at all that you owe them the alleged debt.

If you give the court a call after the 18th and ask if the other side have paid the hearing fee then you'll know whether the hearing is likely to go ahead, and whether to go ahead with the mediation.

If you didn't include reference to the CCA in your defence you should probably amend to add it in. If you submitted it online through MCOL you should still be able to log in to that and view it to copy it, though it may have gone now you have been given a hearing date. I expect you did if you discussed it with CAB so you should be fine.

there have been no details of the account given to me, that no CCA seems to exist, signed or otherwise, so there is no way to prove that it's not my debt that is pretty much all the long defence you've drafted in your last post says anyway xx

[AjayM]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

As I mentioned earlier, I didn't keep a copy of what I sent into the court, but it was the Directions Questionnaire (Small Claims Track), I'm assuming this isn't the same as entering my defence? I'm now intending not to attend anyway, so want to make sure I have everything ready to send to the courts in plenty of time (and to BW Legal in just enough time!)

I notice on the "What to expect at a small claims court hearing?" thread that you say that non attendance is more likely to end in a bad result, do you think that this would affect things in this case?

[Amethyst]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

Yes. (sorry).

No the directions questionnaire and defence are different. A claim is usually run thus;

1: receive claim form
2: acknowledge claim
3: ask for info from claimant
4: they don't bother sending anything
5: enter defence
6: receive letter saying received your defence wait for 28 days
7: letter saying claimant wants to proceed here's you directions questionnaire
8: complete and send in directions questionnaire
9: receive hearing date

So sounds like you're at stage 9 on that list... and I really don't know what you have entered to the court. If you have been to CAB and shown them your documents and what you are submitting and they have okayed it then you should be okay, but you can't be submitting a new defence at this stage without agreeing it with the claimant and making a formal applicaton to amend to the court.

If your original defence mentioned the CCA documents not being forthcoming from the Claimants you should be okay and at the hearing you'll need to argue the case that without those documents the claimants cannot enforce the debt. The court then will probably give the claimants more time to produce the documents.

So if you really intend not to attend the hearing you will need to write and submit a witness statement (will help you with that in a bit) to court and cc to the Claimant and inform the court (at least 7 days in advance) that you won't be attending in person but sending a WS in.

The Claimant could show up on the day with a rubbish invented copy of a purported CCA and the Judge could accept it and you won't be there to argue your case.

[Amethyst]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

Here CPR 27.9 http://www.justice.gov.uk/courts/pro...es/part27#27.9 and PD 27 6 http://www.justice.gov.uk/courts/pro.../pd_part27#6.1

[AjayM]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

I only went to CAB to make sure the County Court documents were legitimate, as I didn't want to be signing anything that Lowell et al could get their dirty hands on, at that stage I hadn't filled anything in I don't think. (I'm so annoyed with myself that I didn't take a copy!)
From what I remember of the form it was just the standard Directions questionnaire, all about whether I agreed with the case being in the small claims etc and about which court. I'm pretty sure I would have stated that no documents had been supplied, but certainly didn't go into too much detail on it. Other than that I don't remember sending anything into the court except the initial form requesting more time, which I had received at the same time.
Is that where I would have entered my defence? Is there any way of attaining a copy of what I've sent in to confirm? I feel like I've already made a complete balls up of this!

[bluebottle]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

A word of caution; there is currently a spate of dodgy loan and mortgage claims involving banks and sub-prime lenders.

At this stage, the OP could put the Claimant to Strict Proof. This would require the OP to serve on the Claimant a notice worded along the following lines -

"The Defendant puts the Claimant to Strict Proof that they owe the alleged debt to the Claimant and unless the Claimant produces evidence to the satisfaction of the Defendant and the Court of the Defendant's indebtedness to the Claimant within seven (7) days of the service of this notice the Defendant shall make application to the Court to strike out the Claimant's claim."

[Amethyst]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

I only went to CAB to make sure the County Court documents were legitimate, as I didn't want to be signing anything that Lowell et al could get their dirty hands on, at that stage I hadn't filled anything in I don't think. (I'm so annoyed with myself that I didn't take a copy!)
From what I remember of the form it was just the standard Directions questionnaire, all about whether I agreed with the case being in the small claims etc and about which court. I'm pretty sure I would have stated that no documents had been supplied, but certainly didn't go into too much detail on it. Other than that I don't remember sending anything into the court except the initial form requesting more time, which I had received at the same time.
Is that where I would have entered my defence? Is there any way of attaining a copy of what I've sent in to confirm? I feel like I've already made a complete balls up of this!

Sounds like you might have entered something that's been filed as a defence on your acknowledgement form... don't worry its happened a fair bit so it's not just you . Give the court a call and ask them what date your defence was entered and if they could possibly send you a copy of it as you don't have a record and don't think you entered a defence, only an acknowledgement.

We had a case a couple weeks ago where the court had filed an acknowledgement as a defence wrongly and had to wind the case back to allow the defendant to enter their defence.

(the file will be with your local court now, but if they don't have it might be worth giving Northampton business centre a call too)

[Amethyst]

Re: URGENT HELP NEEDED PLEASE - Lowell No CCA County Court

A word of caution; there is currently a spate of dodgy loan and mortgage claims involving banks and sub-prime lenders.

At this stage, the OP could put the Claimant to Strict Proof. This would require the OP to serve on the Claimant a notice worded along the following lines -

"The Defendant puts the Claimant to Strict Proof that they owe the alleged debt to the Claimant and unless the Claimant produces evidence to the satisfaction of the Defendant and the Court of the Defendant's indebtedness to the Claimant within seven (7) days of the service of this notice the Defendant shall make application to the Court to strike out the Claimant's claim."

This is a bog standard Lowell / BW Legal / Lloyds Credit Card claim.