Bryan Carter/Lowell - Court Claim Issued, SAR Letter sent now what to put for defense

[nemesis45]

Re: Bryan Carter/Lowell - Court Claim Issued, SAR Letter sent now what to put for def

The recon fails on the address, which leads me to think that the T's & C's may not
be those relevant to the account.

Let's try and " get Carter"!

For the Personal Attention Of.

Mr Bryan Carter,
Principal of Bryan Carter LLP.
Their address etc.

Ref: CC Claim No.........................................

Dear Mr Carter,

I refer to your communication dated.............................: enclosing what is claimed to be an " reconstituted" copy of the agreement relating to the account from which the alleged arises.

This " agreement " is formally rejected as not complying with the requirements for a "reconstituted " agreement.

I'm sure I don't have to point how and why this document fails as you are no doubt aware of its shortcomings.

In this situation the debt reverts to being unenforceable due to the failure to provide a CCA that complies with
my request made under the provisions of CCA 1974 ( as amended.

I would suggest you refer back to your client advising them to withdraw this claim as it does not hold the
document (s) to enforce it.

Yours etc.

Use signed for post and check delivery.

nem

[FlamingParrot]

Re: Bryan Carter/Lowell - Court Claim Issued, SAR Letter sent now what to put for def

Got a couple of queries about the CCA and account summary as seems to be some discrepancies (I know some may just be errors when info has been passed on)-
According to my credit report and the account summary the account was opened on the 16/09/2008 and Defaulted on 06/07/2010
Default amount on summary is £1618, on credit record its £1496
No payments made since the 08/03/10 according to summary & my records but on my credit report the balance reduced by £150 ish over 2011

I have a couple of old statements on which charges have been applied to the total of £192 - in the CCA it mentions charges may be incurred but doesnt say how much they would be.

It is a reconstituted CCA (says so on bottom of printout) -
It has my account number, page number (1 of 2) and then the date of 04/12/2007 at the bottom of the printout so 9mths before I opened the account though this may be the date that the terms I 'agreed to' were last changed/updated.
Mentions possible charges but no amounts specified.
0% interest rate which is correct but been charged interest according to court claim (this may be Lowells claiming interest if they are allowed to?)
It has not been signed by me
The address on it is my current address that I moved to 6yrs ago. The account was taken out at my previous address about 8months before I moved.

I dont know if any of these things make a difference or can be 'argued' ?

One thing to consider here is that, since the account was opened in 2008, a court would still have discretion to enforce. The bit of legislation that prevented a court from enforcing unless there had been a properly executed agreement containing all the prescribed terms was s.127 of the CCA, which was repealed with effect from April 2007.

On Carey v HSBC it was established that a reconstituted agreement was acceptable for the purposes of satisfying a request under s.77/79 of the CCA.

The terms dated December 2007 may still have applied when you opened the account in September 2008.

[my_two_boys]

Re: Bryan Carter/Lowell - Court Claim Issued, SAR Letter sent now what to put for def

Nem - Thanks, I will do that letter and get it in the post tomorrow just to see what their response is!

Flamingparrot - Thank you, thats about what I though about the April 2007 thing and about the terms quite likely being the correct ones. I knew that a reconstituted agreement is acceptable unfortunately. It was more about the incorrect address and that charges have been applied even though the CCA doesnt say how much charges would be.

I know that chances are I will need to pay this debt, but Lowells & Bryan Carter have given me hassle over the years (lots of phonecalls (I dont answer phones anyway), phising type emails to various address that bear relevance to my name, 2-3 letters a day at some points etc) so if I can give them some hassle back I will though no point me arguing things if theres no real/questionable points to argue.

[FlamingParrot]

Re: Bryan Carter/Lowell - Court Claim Issued, SAR Letter sent now what to put for def

Flamingparrot - Thank you, thats about what I though about the April 2007 thing and about the terms quite likely being the correct ones. I knew that a reconstituted agreement is acceptable unfortunately. It was more about the incorrect address and that charges have been applied even though the CCA doesnt say how much charges would be.

I know that chances are I will need to pay this debt, but Lowells & Bryan Carter have given me hassle over the years (lots of phonecalls (I dont answer phones anyway), phising type emails to various address that bear relevance to my name, 2-3 letters a day at some points etc) so if I can give them some hassle back I will though no point me arguing things if theres no real/questionable points to argue.

I totally agree with the above. :clap2: I just wanted to make you aware of the fact that, sadly, the court has much more discretion when presented with post-April 2007 agreements.

[my_two_boys]

Re: Bryan Carter/Lowell - Court Claim Issued, SAR Letter sent now what to put for def

Letter has been sent this morning

Now Ive received an answerphone message from mediation asking me to call them back when I can - any advice on what to say please as I had planned on saying that Id received no paperwork from Bryan Carter but now I cant say that :s

Thanks

[FlamingParrot]

Re: Bryan Carter/Lowell - Court Claim Issued, SAR Letter sent now what to put for def

Looking above, the document you received appears not to have been the correct one, i.e. not the terms that applied to your agreement, you sent a letter saying as much, didn't you? Also did you receive any other documents you requested such as the default notice and notice of assignment?

As I said above, if this is an account from 2008 the court would have discretion to enforce it even if there hadn't been a properly executed agreement with all the terms to start with. If it was an online application you'd have been presented with all the terms and required to tick a box to agree to them before going forward with the application.

Non compliance with s.78 of the CCA could still be an argument if the document they've sent is not an 'honest and accurate' recon of your agreement, however, a judge could find that, in the balance of probabilities, they have complied with your s.78 request. On Carey v HSBC it was established that a recon was an appropriate response to a CCA request.

[my_two_boys]

Re: Bryan Carter/Lowell - Court Claim Issued, SAR Letter sent now what to put for def

Thanks for the reply, so should I tell the mediation service that I havent received all the paperwork requested? I only received a reconstituted cca with an incorrect address on it. Havent received any other paperwork from Lowells/Bryan Carter.

Yes, I have sent the letter that Nemesis posted for me - thats why Im now not sure what to say to the mediation service as before I could have said not received the CCA :s

[FlamingParrot]

Re: Bryan Carter/Lowell - Court Claim Issued, SAR Letter sent now what to put for def

The mediation service are not there to pass judgment and you could just say you haven't received all the documents you have requested and what you have received is questionable (as you have sent the letter questioning the validity of the recon).

What I was trying to say is that you may want to consider whether you will be able to successfully defend this claim or whether attempting settlement would be a good idea. :noidea:

[nemesis45]

Re: Bryan Carter/Lowell - Court Claim Issued, SAR Letter sent now what to put for def

Thanks for the reply, so should I tell the mediation service that I havent received all the paperwork requested? I only received a reconstituted cca with an incorrect address on it. Havent received any other paperwork from Lowells/Bryan Carter.

Yes, I have sent the letter that Nemesis posted for me - thats why Im now not sure what to say to the mediation service as before I could have said not received the CCA :s

The mediation service cannot/will not continue with an appointment if you have not been provided with the documents requested and must pass the claim back to the court.

nem