Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

**Amethyst** · 26th September 2014, 07:36:AM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

Hiya,

Bryan Carter are right in that a Part 18 won't apply in small claims track. A CPR 31.14 request is usually better as that applies before a claim is allocated to a track, although BC refuse to send documents for those too, but it assists you case later.

As this is a credit card account you are entitled to a true copy of the agreement under the consumer credit act, and if they don't give it to you, and if it is not compliant with the CCA, then they cannot get judgment until such time as they find it. Should give you more breathing space. You already sent one to Lowell so we should write back to BC telling them about Lowell's non compliance with that request.

So first things first have you submitted an acknowledgement of the claim to the Court ? If not do that, online at moneyclaimonline, tick intend to defend in full

Sharon
xx

**Disabled on ESA** · 26th September 2014, 13:35:PM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

Hi Amethyst and many thanks for your response - really appreciated. Had an inkling I had done something wrong with the part 18. I will complete acknowledgement of service as you suggest immediately. When writing back to BC - should I also enclose original copy of CPR 31.14 letter to Lowells?

**Amethyst** · 26th September 2014, 13:42:PM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

I'd do it in one, something like..............

Dear Bryan

Request for documents mentioned in a statement of case under CPR 31.14

Thank you for your letter, I have taken your comments on board.

As your clients claim has not yet been allocated to a track I do believe I am entitled to request further information to assist me in assessing my position with regards the claim under Civil Procedure Rule 31.14.

Therefore To enable me to file my defence and/or counterclaim, I require inspection of documents you mention in your statement of case ahead of filing my defence on XX XXXX 201X.

1. Agreement / Contract
2. Default Notice
3. Assignment

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

I would also like to make you aware that I sent a formal request, together with the statutory fee of £1, to the claimants, who are the creditor as determined by the Consumer Credit Act, for a copy of the original credit agreement pursuant to section 77 - 79 of the Consumer Credit Act 1974. I sent this request on XXXDATEXXXX and have yet to receive any response. I am sure you are aware that whilst default of this request continues the creditor is unable to enforce any debt that may be considered owing under that agreement.

I look forward to hearing from you within the next seven days.

Kind regards

xxxxxx

**Disabled on ESA** · 26th September 2014, 13:59:PM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

Thank you Amethyst - will do this as soon as I return from GP appt. So gratefully appreciate your help as I get so confused.

**Disabled on ESA** · 10th October 2014, 13:43:PM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

After sending letter back to Bryan Carter Solicitors using above format provided by Amethyst - I have now received a response back quoting as follows: "We write further to your letter dated 29 September requesting disclosure under Part 31 of the CPR. We confirm the claim form was issued by the County Court Business Centre and that the court's protocol was followed when issuing the claimants Particulars of Claim. Practice direction 7C point 1.4 (3A) eliminates the rquirement to attach documents to the Particulars of Claim when they are issued by this court. The policy of the original creditor (I am assuming that they mean Capital 1) was to provide an agreement at the point of contract and statements throughout the duration of the account. Evidence will be provided in accordance with the court's directions. As you will be aware a Claim was issued in this matter on 16 September. Please respond to the claim by using the response pack provided by the court. You should comply with deadlines outlined by the court in order to avoid a default judgement being entered against you."

I need to file defence asap (I hope I am right going by dates ie - Court order received in post - Saturday 20 September, Acknowledgement of Sevice sent electronically Mon 29 September). I have still not had any response from my initial request to Lowell nor were any of Bryan Carters documents regarding their complaints procedure as stated in their letter of 24 Sept as being enclosed - have been received. And they have not responded to anything in either my letters of 22nd or 29th September.

How am I best writing my defence as all these numbers are confusing me? Any comments would be most grateful.

**Amethyst** · 10th October 2014, 13:48:PM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

That's okay it;s a standard brush off letter - it's okay it makes you look better than them

xx

So if you claim was issued on the 16th Sept your defence needs to be in by Sunday, October 19, 2014 so Friday the 17th OCTOBER would be best.

Just to confirm you have had no documents back from Bryan Carter or Capital One , just a couple of brush off letters?

**Mabel** · 12th October 2014, 14:58:PM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

Hi I was reading your post today and had a thought, if you have had long term health issues/ disability issues since 2007
you could be entitled to PIP (Personal Independence Payment) which would increase your finances.
I've posted a link for you to read about it
Good Luck
Mabel

https://www.gov.uk/pip/overview

**Disabled on ESA** · 13th October 2014, 00:01:AM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

Thank you Mabel - have actually had health problems since major surgery in 1985 which caused irrepairable other health problems in turn. Will look into the link you provided - thank you.

Amethyst - thank you once again for your response in helping me through this - I really do appreciate it. I can confirm that I have not received any response from Lowells (sent £1 postal order for information with original letter). I can also confirm that I have received no documents whatsoever from Bryan Carter sols. Can I file defence on line? And if so - how am I best laying out my defence? Many thanks once again x

**Disabled on ESA** · 13th October 2014, 00:09:AM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

Mabel - have just realised that PIP is replacing DLA - but it hasn't been rolled out yet where I live - so I am on DLA til 2016. But many thanks for your help x

**Disabled on ESA** · 14th October 2014, 22:39:PM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

Absolutely no documents received other than couple of letters as above from Bryan Carter. Need to file defence by friday 17th October and haven't got a clue where to start with setting out my defence as all the numbers confuse me - can anyone please help

**Amethyst** · 14th October 2014, 22:44:PM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

Hiya, Here's a draft outline of a defence for you to work from, post up with any questions as you go through it.

IMPORTANT

A Loan is a Fixed Sum Credit Agreement and falls under section 77 of the Consumer Credit Act.
A Credit Card or Catalogue account is a Running Credit Agreement and falls under section 78 of the Consumer Credit Act.

-----------------------------------------------------------------------------------------------

EXAMPLE DEFENCE

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1: I received the claim [Claim Number] from the [Name of Court - often Northampton or Salford] County Court on [Date you received the claim]

2: This claim [is for/ appears to be for] a [Credit Card / Loan / Catalogue Account] agreement regulated under the Consumer Credit Act 1974.

3: [It is admitted/denied] that the Defendant has [previously] entered into [an agreement/agreements] with [Original Creditor /Claimant] for provision of credit.

4: However, the Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

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

6. The Claimants statement of case states that the account was assigned from [Original Creditor] to [Claimant] on [Date]. The Defendant does not recall receiving notice of this assignment.

7. It is denied that [Original Creditor] 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.

8: On the [Date] I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to [Claimant's Solicitor]. I requested the Claimant provide copies of the [Agreement, Default Notice and Notice of Assignment] .

9. [Claimant's Solicitor] has not sent any of these documents to me.

10. On the [Date] I sent a formal request for a copy of the original agreement to [Claimant] pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.

11. The Claimant has failed to comply with [s77 (1) / s 78 (1)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement.

[12: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but they have declined.]

13. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

14. At this stage without documentation I am unable to plead fully to the claim. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.

Signed …………………………………………

Dated .................................................. ....

**Disabled on ESA** · 15th October 2014, 01:31:AM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

Amethyst - was nearly having a nervous breakdown with worry and anxiety. Thank you soo much for outline defence - it gives me lots to work with now and I now understand a bit better what is required. Will spend tomorrow on it and file on line tomorrow. I can't thank you enough for helping someone as stupid as me - get through this. Thank you xx

**Disabled on ESA** · 15th October 2014, 20:59:PM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

Am just trying bto make sense of everything - as my original debt was with Cap 1 and not Lowell - do I admit or deny. The particulars of claim state - "The claimants claim is for the sum of £ - being monies due from the defendant to the claimant under an agreement regulated by the CCA 1974 between the defendant & Cap 1 under acct ref xx and assigned to the claimant on 6/8/2008 notice of which has been given to the defendant. The defendant failed to maintain contractual repayment under the terms of the agreement and a default notice has been served which has not been complied with. The claim includes statutory interest persuant to S69 of the County Act 1984 at a rate of 8% per annum from the date of the assignment of the agreement to date but limited to a maximum of one year amounting to 3.83%"

I only agreed to make payments over telephone at time due to constant telephone harrassment as stated initially. So how am I best defending myself under these circumstances?

**Disabled on ESA** · 17th October 2014, 00:42:AM

Re: Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols

This is the defence that I have just submitted after it taking me many hours to get through. I would be grateful for feedback in hope that I have done everything right.

DEFENCE

1) I received the claim - Claim Number A1***** from the Northampton County Court on Saturday 20 September 2014.

2) This claim appears to be for a credit card Account Reference ********* agreement regulated under the Consumer Credit Act 1974.

3) It is denied that the Defendant has entered into an agreement with Capital 1 for provision of credit.

4) However, the Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

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

6) The Claimants statement of case states that the ACCOUNT was assigned from Capital 1 to Lowell Portfolio I Ltd on 6 August 2008. The Defendant does not recall receiving notice of this assignment.

7) It is denied that Capital 1 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.

8) On the 22 September 2014, I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule Part 18 request for further information (in error instead of 31.14), to Bryan Carter Solicitors LLP. I requested that the Claimant provide copies of :
1) A true copy of the executed credit agreement and any terms and conditions that applied to the
account at the time of default and at the time the account was opened.
2) All records that Lowell Portfolio I Ltd hold on me relevant to this case, including but not limited to:
a) A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to the account.
b) Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations
c) Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with Capital One
d) True copies of any notice of assignment and/or default notice or enforcement notice that Lowell Portfolio I Ltd or the original creditor sent me, with a copy of any proof of postage that Lowell Portfolio I Ltd holds.
e) Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
f) Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.
g) Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
h) A genuine copy of any deed of assignment, or proof that Lowell Portfolio I Ltd have a legal right to this money.
i) A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998
j) A list of third party agencies to whom Lowell Portfolio I Ltd have disclosed my personal data and a summary of the nature of the information they have disclosed.
3) Any other documents Lowell Portfolio I Ltd seek to rely on in court.
4) A copy of Lowell Portfolio I Ltd complaints procedure, as required by the Consumer Credit Act 2006.
5) Clarification of the date Lowell Portfolio I Ltd acquired the debt, what organisation Lowell Portfolio I Ltd acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what
credit license number they had at the time that the debt was purchased or entered into.

9) Bryan Carter Solicitors LLP has not sent any of the above documents to me.

10) On the 17 August 2014, I sent a formal request for a copy of the original agreement to Lowell Portfolio I Ltd pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

11) The Claimant has failed to comply with s 78 (1) Consumer Credit Act 1974 and by virtue of s 78 (6) Consumer Credit Act 1974, cannot enforce the agreement.

12) Under Civil Procedure Rule 16.5 (4) where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed, be proved unless he/she expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

13) At this stage without documentation, I am unable to plead fully to the claim. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

14) In the event that the relevant documents are received from the Claimants, I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.

Urgent help please - Cap 1/Court Summons/Lowell Portfolio via Bryan Carter Sols