Bryan Carter Court Case - Friday - Can't Attend

[magictorch1976]

Good morning everyone

I hope you can help as I've just got off the phone to Bryan Carter Solicitors whom were less than helpful.

Here's the history:

• 24th July 2014 - letter from Bryan Carter in respect of a Capital One account for £495.21 from Bryan Carter advising that a court claim would be issued within 48 hours on behalf of Lowell Financial.
• The court document arrived the same day.
• 1st August 2014 - I wrote to Lowell and BC requesting copy of credit agreement under S.77-79 of the CCA.
• 1st August 2014 - Also wrote to BC asking for verified and legible copies of the agreement, the notice of assignment, the default notice and the termination notice. I gave them 7 days to respond, extendable to 14.
• 5th August 2014 - BC respond to me - advising that they are responding to my request under CPR Part 31 and state they have referred my request for documents to Lowell. I didn't receive these until 22nd October 2014.
• I defended the claim stating that documents hadn't been received and that I'd sent them special delivery with evidence that my original request asking for them had been signed for.
• 24th September 2014 - BC write to me advising that they with to proceed with court action. Mediation was offered. I refused.
• 1st October 2014 - Notification from the court that the case is proposed for small claims track.
• 15th October 2014 - BC write to me with a copy of their directions questionnaire.
• 18th October 2014 - I submit my directions questionnaire and write to BC advising they are non-compliant with the request dated 1st August 2014 under the CCA and no documentation has been received and that the claims should be withdrawn on this basis.
• 22nd October - BC provide a copy of the account statement and terms and conditions, with my signature and stating "they consider they have complied with S.28 of the Consumer Credit Act 1974."
• The court case is on Friday at 2pm!

I hope the above is clear but if anyone needs clarification, let me know.

So now the questions:

1. I called BC this morning just to pay the bloody thing but they won't agree to a repayment plan because "i've left it too late." The claim is for £550 and I offered £75 a month.
2. Then I regretted number 1!
3. I can't attend the hearing - what do I need to do? I have a training course rostered at work and can't take the day off now.
4. They aren't attending the hearing which I think is a little bit odd?
5. The copy of the original agreement is illegible. I can just make out my signature.
6. The fact they clearly breached the time limit on sending me documents- how does this stand in my favour?
7. There is no deed of assignment or termination notice in the court exhibit nor was any sent to me.
8. The witness statement from BC:

• They state I had the benefit of the service and used the credit facility (fair enough)
• The account was assigned to the claimant on 21st February 2013 (but there is nothing else to confirm this)
• The defendant says he made a request for documentation under the CCA 1974 which the claimant has not complied with. They then say: this has now been provided and rectifies any earlier default - WHATS THE POINT OF HAVING TIME LIMITS IF THEY DONT COMPLY AND CAN JUST SAY "OH WE'VE DONE IT NOW?" (not shouting there by typing in cap letters - just wanted to make it stand out as my question :-)
• They responded to me under Part 31 of the CPR but then said it didn't apply as it's a small claim?
• In any event it is the policy of the creditor to supply the original documents at the point of contract.
• They submit I do not have a valid defence.

I'm going to call the court now because I sent a letter to them last week advising I couldn't attend and provided evidence of why but I've not heard anything so I guess that's easily solved but any advice or guidance would be appreciated.

Thanks so much :-)

Best.

[Amethyst]

Re: Bryan Carter Court Case - Friday - Can't Attend

Morning

Yes ring the court about being unable to attend. It may go ahead in your absence - Have you sent in any Witness Statement at all ? If not you should do.

Time Limits of CCA reply, yes they can just do it when they feel like, annoying as hell that isn't it.

22nd October - BC provide a copy of the account statement and terms and conditions, with my signature and stating "they consider they have complied with S.28 of the Consumer Credit Act 1974."

Tough to say if it is enforceable or compliant without seeing it and knowing exactly what they have sent. Can you scan it in?

[magictorch1976]

Re: Bryan Carter Court Case - Friday - Can't Attend

Thank you Amethyst. I have called the court and they've said to pop it in an email so I have done that. I haven't sent a witness statement. What should I include in it?

I will scan the agreement now.

Thanks so much !

[Amethyst]

Re: Bryan Carter Court Case - Friday - Can't Attend

Best to have a look at the agreement first but basically a chronological outline of events to date. ..

eg. this kind of thing.

2. On XXXXXXXXXX 2014 I made a written request to the Claimant solicitors, xxxxxxxxxxxxxxxxx of xxxxxx address xxxxxxxxxxxx requesting that the Claimant provides copies of all documents mentioned in the statement of case.[EXHIBIT A]

3. On XXXXXXXXXX , I contacted the Claimants xxxxxxxxxxxxx

4: On xxxxxxxxxxx I received a letter [EXHIBIT B] from the Claimants stating xxxxxxxxxxxxx

[nemesis45]

Re: Bryan Carter Court Case - Friday - Can't Attend

Hi Welcome to LB,

I think you have realised your big mistake in phoning Carter, at least you did not make the offer of payment in writing!
Lowell have complied with the CCA request which lifts the bar on the court action, there is no problem there.
One would not expect to receive the Deed of Assignment with any request CCA or CPR31.14 unless in the case of the CPR the deed
was mentioned in the POC.
Can't comment on the viability of the document provided not having seen it.
Also we have no history of the debt.

Such as:

When was the account opened?
What is the default date?
When was the last payment or written acknowledgment made?
Does this show on credit reference files?
Has this been in the hands of any other DCA's?

[magictorch1976]

Re: Bryan Carter Court Case - Friday - Can't Attend

Hmmm can't seem to upload the image. I PDF'd it but there's no option ha ha. Any ideas?

Nemesis - thank you. Here's some details:

When was the account opened? - June 2010
What is the default date? April 2012
When was the last payment or written acknowledgment made? Jan 2012
Does this show on credit reference files? Yes
Has this been in the hands of any other DCA's? I don't recall seeing anything from any other DCA.

[nemesis45]

Re: Bryan Carter Court Case - Friday - Can't Attend

pdf should be ok I think.

Have anything to defend the claim other than the agreement supplied being illegible?

nem

[mystery1]

Re: Bryan Carter Court Case - Friday - Can't Attend

http://www.justice.gov.uk/courts/pro...es/part27#27.9

Non-attendance of parties at a final hearing
27.9
(1) If a party who does not attend a final hearing–
(a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend;
(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and
(c) has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above,
the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.
(2) If a claimant does not –
(a) attend the hearing; and
(b) give the notice referred to in paragraph (1),
the court may strike out(GL) the claim.
(3) If –
(a) a defendant does not –
(i) attend the hearing; or
(ii) give the notice referred to in paragraph (1); and
(b) the claimant either –
(i) does attend the hearing; or
(ii) gives the notice referred to in paragraph (1),
the court may decide the claim on the basis of the evidence of the claimant alone.
(4) If neither party attends or gives the notice referred to in paragraph (1), the court may strike out the claim and any defence and counterclaim.
Back to top
Disposal without a hearing
27.10 The court may, if all parties agree, deal with the claim without a hearing.

http://www.justice.gov.uk/courts/pro.../pd_part27#6.1


Non-attendance of a party at a hearing
6.1 Attention is drawn to rule 27.9 (which enables a party to give notice that he will not attend a final hearing and sets out the effect of his giving such notice and of not doing so), and to paragraph 3 above.
6.2 Nothing in those provisions affects the general power of the court to adjourn a hearing, for example where a party who wishes to attend a hearing on the date fixed cannot do so for a good reason.




Your biggest issue appears to be that what you have sent the court (defence, witness statements, documents) isn't enough to win if the opponent has complied with non attendance rules.

M1

[magictorch1976]

Re: Bryan Carter Court Case - Friday - Can't Attend

When I defended the claim I hadn't received the documentation from my CCA request so my defence was that there was no case to answer as I couldn't possibly "defend" a case that I didn't have the information for.

My defence was:

"The claim was issued on the 24/7/2014. On 01/08/2014 The Claimant (Lowell) and it's agent (BC) were sent a CCA and CPR request with the appropriate statutory fees (CPR31.14) and pursuant to the CCA1974. The time limit of 12+2 days was stated for compliance. Neither the claimant nor its agent have responded, nor has a request for more time been received. The defendant therefore denies the claim in its entirety. In addition, no Letter Before Action or letter of claim was received prior to court action. Evidence exists that both letters to the claimant and the agent were received and signed for in respect of my request for CPR31.14 and the CCA 1974."

I understand that the CPR doesn't apply now so that was a bit daft.

Have I done something stupid?

[magictorch1976]

Re: Bryan Carter Court Case - Friday - Can't Attend

I can't locate which "button" to press to upload the PDF's? Inserting an image just pastes the link and not the document......

Sorry for being a pain.

[magictorch1976]

Re: Bryan Carter Court Case - Friday - Can't Attend

Thanks Mystery1. I wrote to the court last week (8 days out) advising why I couldn't attend but they didn't receive my postal letter. I spoke to a very helpful lady who asked me to email them and they will try and delist the case although they can't promise.

[Kati]

Re: Bryan Carter Court Case - Friday - Can't Attend

Hmmm can't seem to upload the image. I PDF'd it but there's no option ha ha. Any ideas?

Nemesis - thank you. Here's some details:

When was the account opened? - June 2010
What is the default date? April 2012
When was the last payment or written acknowledgment made? Jan 2012
Does this show on credit reference files? Yes
Has this been in the hands of any other DCA's? I don't recall seeing anything from any other DCA.

If you click "go advanced" at the bottom of the reply box there will be an option to upload files to your post
K x

[magictorch1976]

Re: Bryan Carter Court Case - Friday - Can't Attend

Kati - you are wonderful. Thank you!:tinysmile_grin_t:

[mystery1]

Re: Bryan Carter Court Case - Friday - Can't Attend

A lost letter helps you but you didn't write to the claimant.

Strictly by the rules the court should hear the case and decide on what they have. They have, i assume, complied with s78 before the date set to have documents served ready for trial and you haven't replied or done anything about it. As you won't be present it would appear to me you'll need to be very lucky. Had you been there perhaps you could have overcome the deficiencies.

M1

[magictorch1976]

Re: Bryan Carter Court Case - Friday - Can't Attend

Sorry I forgot to say I copied the claimant by way of an email.