*DISCONTINUED* Court Claim from Bryan Carter for Lowell Portfolio

[2708andy]

Hi, I am currently going through the processes of defending a court claim from Bryan Carter on behalf of Lowell Portfolio. A quick summary of what it is about. The debt is not statute barred but the majority of the debt is made up of excessive charges/fees and interest. There are many questionable charges on the statements. I have submitted my defence/set off based on these charges/interest. Both CCA request and CPR were sent prior to submitting defence but no response documents have been received. Just a letter from BC stating that I should produce the requested documents. Now waiting for DQ from the Court.

Have now received a letter from BC offering a settlement, either in full (£6608) or monthly payments of the full balance.

I have received a lot of advice but not sure what route to take. Do I try and strike a deal with BC or do I take it further as they have not produced any documents to prove the debt? I feel I should fight it based on the excessive fees/interest added.

Any advice would be appreciated.

[2708andy]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Anybody able to help me on this one please?

[Amethyst]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Hi Andy

Is the original account the claim is about a credit card/loan or bank account ? That's the main bit we need to find out. Would you be able to post the defence you have entered up here too pls.

Has BC sent you a consent order with their settlement offer?

Sharon.

[2708andy]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Hi Sharon, thanks for getting back to me. Really am concerned about where or what to do. I am still waiting for the DQ from the court too. The original account was a HP agreement on a car, agreement was rewritten (Welcome Finance) and I then VT’d the car due to difficulties. Agreement then sold to Lowell in 2012, no payments made to Lowell but last payment to Welcome was one month short of Statute Barred. BC has sent a consent form. Settlement offer is for full balance of £6608, if paid monthly. I am in no financial position to pay off in one lump sum either. Here is my defence/set off submitted to court:

Particulars of Claim

1.The Claimant claims the whole of the outstanding balance due and payable under an agreement referenced XXXXXXX and opened effective from 31/08/2007. The agreement is regulated by the consumer credit Act 1974. was signed by the Defendant and from which credit was extended to the Defendant.

2. The Defendant failed to make payment as required and a default was recorded. As at 22/08/2014 the Defendant owed Lowell Portfolio I Limited the sum of 6,098.30.

3. By an agreement in writing the debt has been legally assigned to the claimant effective 05/09/2012 and made regular upon the Claimant serving a Notice of Assignment upon the Defendant shortly thereafter.

4. And the Claimant claims:- 1. 6,098.30 2. interest pursuant to Section 69 county court Act(1984) at a rate of 8% per Annum from 05/09/2012 to 04/09/2013 of 66.11.

Defence & Set Off

1.The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.This defence is made pursuant to CPR 16.6 (a/b) as a defence of set off.

2.Paragraph 1 is noted I have in the past had credit facilities under the agreement reference referred to with xxxxxxxx.The account is currently in dispute with regards to its crippling oppressive historic unfair charges and penalty fees regime and interest being levied to this account. It is averred that any alleged balance consists completely of charges and not of any indebtedness from the defendant.

3.Paragraph 2 is denied neither xxxxxxxx or the Claimant has served a Default Notice pursuant to sec87(1) of the CCA 1974. Furthermore It is questioned whether as an assignee they have legal right to register a default after assignment. Welcome Finance are fully aware of the dispute and why payments were reduced having received intended notice of litigation.

4.Paragraph 3 is accepted, due to the above xxxxxxxx quickly assigned the debt as they were aware of impending litigation and the ongoing dispute.

5.Paragraph 4 is denied not only as the claimant states a different value earlier in its pleadings but is and remains in default of a section 78 request.,also failed to serve Notice of Sums In Arrears pursuant to the CCA 2006 amendments and is therefore prevented from seeking any relief or realise any surety.

6. Therefore it is denied with regards to the Defendant owing any monies to the Claimant ,as per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed and therefore the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement with the Claimant; and
(b) show how the Defendant has reached the amount claimed for; and
(c) show how the Claimant has the legal right, either under statute or equity to issue a claim;

8. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of theconsumer credit Act 1974.

9.Incorporated within the sums demanded by the Claimant are sums claimed for their administration fees, late payment charges over limit penalties and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment.I the Defendant aver the incorporation of such claims are penal and unenforceable at law.

10.To quantify the above in set off since 11th June 2004 the fees applied to this account accumulate to
£5452.38 excluding interest.
At 24.90% accruing daily equate to £6,810.02.

11.It is therefore requested pursuant to CPR 16.6 (a&b) that any Judgment the court deems fit be set off to a fair and justifiable amount and that my defence should be taken into account.

12.In the circumstances with the facts and matters set out given the Particulars of Claim do not give rise to an entitlement to claim the relief now sought .The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim be set off against this defence.

[Amethyst]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Hiya, You had a thread on CAG then xx

So your defence is

1) penalty charges
2) Non compliance with a CCA s.78 request
3) Standard CPR 16 prove its owed'
4) No default notice

[Amethyst]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Other bit is the rewritten agreement - that was still HP and you VT'd while with Welcome - rather than VT'ing THEN changing to a loan with Welcome, so the original agreement for this claim is an HP agreement ?

What was the shortfall and do you have any paperwork at all from when you VT'd ?

[2708andy]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Yes, original agreement is an HP Agreement. Shorttall when rewritten was approx £8500. I have paperwork confirming my VT too. Do you want me to upload these docs?

Reply to your first posting, yes, the points you have list are the structure of my defence. I do have a thread on CAG but felt I needed a second opinion as not sure whether to approach BC regards a settlement.

[Amethyst]

Re: Court Claim from Bryan Carter for Lowell Portfolio

If you have not received the copy of your credit agreement yet then I would hang fire. Your defence is fine on that score, whilst the default continues they cannot enforce the agreement, thus can't get judgement.

If it helps settle your mind, BC always send out letters giving you opportunity to settle in between defending and submitting directions questionnaire.

If they DO come up with the agreements, documents etc and evidence the amount owing, THEN is the time to negotiate settlement, or if, for instance, you get partial documents or slightly faulty documents you don't feel able to argue the toss on in court.

Otherwise just let us know once your N180 arrive and we'll help you fill it in if needed xxxx


( oops and I wasn't meaning anything by mentioning you'd been on CAG, just when you paste stuff from CAG it tends to have a few irritating spammy links in it, its always good to get opinions from different places as some people have different ways of doing things, I expect we and CAG probably agree on this with the lack of CCA though - although I wouldn't have worded the defence quite like that)

[2708andy]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Many thanks Sharon. My mind is a bit more at rest for now. I was actually advised to try and come to a settlement with BC prior to receiving the DQ but I really would like to stand my ground on this. They have had many thousands of pounds out of me and I wish to fight this for as long as sensibly possible. As you say, they have not come up with a credit agreement yet even though the cheque I sent he claimant has been cashed.

Thanks for your help so far. Will be in touch when the DQ arrives.

[Amethyst]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Do you want to give me a link to your cag thread and I'll see if I can suss out why they've recommended that course of action, might be you have mentioned something on there that you haven't on here.

[2708andy]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Good idea.

Here you go: http://www.consumeractiongroup.co.uk...4&goto=newpost

Look forward to hearing from you.

[2708andy]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Have now sent Directions Questionnaire back to Northampton CCBC and a copy to BC Solicitors. Received further letter from BC containing copy of Claimants completed DQ and a covering letter stating “The Claimant is prepared to settle this mater outside of court and we look forward to hearing from you regarding negotiations.”

Looking at other posts regarding BC this is a standard letter they send out. I don’t see why I should negotiate when they and the claimant have failed to produce any documents so far.

Any suggestions on my next move? Do I wait for the Mediation Service to help or negotiate with BC?

[Amethyst]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Good idea.

Here you go: http://www.consumeractiongroup.co.uk...4&goto=newpost

Look forward to hearing from you.

Sorry Andy completely missed this post. I don't see why you should negotiate with BC either and yes it is standard. Wait for the mediation service and when you speak to them tell them the claimant has sent you nothing at all and its very hard to mediate without ANY evidence of the debt's existence.

[2708andy]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Okay, my thoughts exactly. I’m going to wait for them to show their cards before I do anything. Just hope it goes in my favour!

[Amethyst]

Re: Court Claim from Bryan Carter for Lowell Portfolio

Okay had a read of the CAG thread, the advice is sensible but it is just giving you the options. You can quite safely continue until they send you the correct documents (if ever), at that point you can consider whether to negotiate a settlement via tomlin order with them.