Bcs claim form, lowell/shop direct

[jojo03]

Re: Bcs claim form, lowell/shop direct

I still haven't heard back from Lowell regarding my CCA request.

I have received response from BC after sending the second CPR letter and arguing the SB, and it seems they have just re-sent their first response.

''We write further to your letter dated 18 May 2015 requesting disclosure under P31 of CPR.
We can confirm the claim form was issued by the county court business centre and that the court's protocol was followed when issuing the claimant's particulars of claim. Practice direction 7c point 1.4 (3a) eliminates the requirement to attach documents to the particulars of claim when they are issued by this court.
We confirm this matter will most properly (sure they mean probably??) be allocated to the small claims track as this is a simple contractual matter and p31 of the CPR will therefore not apply. In any event the notices of default and assignment left the control of the claimant when they were dispatched to you.
It is the original creditor's policy to issue agreements at the start of the contract and statements throughout the duration of the agreement and, in this regard, we ask you to refer to your own records.
Our client's position is that the limitation period runs from the date the original creditor became entitled to demand payment. The account fell into default on 31 January 2011 and the claim was issued on 29 April 2015. It is our client's position that the account is not statute barred and that the outstanding balance remains payable by you.
We confirm our client is not agreeable to an extension for filing defence.
As you will be aware a claim was issued in this matter on or around 29 April 2015 and we are in receipt of your acknowledgement of service.
We recommend you seek independent legal advice...''

What is my next step? Add to my defence that they refused to follow CPR after a second request and continued to wrongly advise regarding the SB/limitation act?

Thanks!

[jojo03]

Re: Bcs claim form, lowell/shop direct

I have amended my defence but not sure if I have gone into too much detail? Could you please refer to the above post and let me know if I should submit the below or wait until Lowell's time is up on 29th?

1: I received the claim BXXXXXX from the Northampton County Court on 30^th April 2015.

2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this defence.

3: This claim appears to be for a catalogue account agreement regulated under the Consumer Credit Act 1974. It is denied that I entered into a consumer credit regulated agreement with Shop Direct. I do not recall seeing or signing any such agreement.

4: The Claimant’s statement of case fails to give adequate information to enable me to properly assess my position with regards to the claim.

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

6. The Claimant’s statement of case states that the account was assigned from Shop Direct to Lowell Portfolio I Ltd on 10/02/2011. The Defendant does not recall receiving notice of this assignment.

7. It is denied that Shop Direct 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. I have not acknowledged or made any payments to Shop Direct or any party acting on their behalf, or any assignee of the alleged debt in the past 6 years. After checking my credit file, I have discovered that the case for this alleged debt was opened on 17^th February 2007.

9. Therefore it is submitted that any debt would be statue barred under section 5 of the Limitations act 1980.

10. On 9^th May 2015, I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Bryan Carter Solicitors. I requested the Claimant provides copies of the Agreement, Default Notice and Notice of Assignment and requested extended time to file my defence. I also informed Bryan Carter that this debt would have been statute barred prior to submitting their claim to the court.

11. On 9^th May 2015 I also 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.

12. On 13^th May 2015, Bryan Carter Solicitors responded and refused to send any of these documents to me and also refused to extend time to file my defence. They also denied that the debt is statute barred and claimed that the limitation period runs from the date the original creditor became entitled to demand payment, suggesting this was on 31 January 2011. My understanding of the Limitation Act 1980 is that the limitation period runs from the date on which the cause of action accrued in 2007.

13. On 18^th May 2015 I sent Bryan Carter Solicitors a second letter requesting the documents mentioned in the claimant’s statement of case and also asked them to refer to section 5 of the Limitations Act 1980 regarding the statute barring.

14. On 22^nd May, Bryan Carter Solicitors sent a repeat of their first response sent to me on 13^th May 2015. Again they refused to send documents, refused to extend my time to file a defence and denied that the debt is statute barred.

15. 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.

16. 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.

17. I request the court orders the Claimant to provide the necessary documentation in order for me to fully plead my case, and provide strict proof of any acknowledgement or payment in the last 6 years or else the Claim should stand struck out.

18. 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.

19. It is denied that the Claimant is entitled to the relief as claimed or at all.

[jojo03]

Re: Bcs claim form, lowell/shop direct

I will add to point 11 that no response or agreement has been received to date from the claimant.

[jojo03]

Re: Bcs claim form, lowell/shop direct

[MENTION=55034]nemesis45[/MENTION] hoping you see this before Friday :-) x

[nemesis45]

Re: Bcs claim form, lowell/shop direct

Hi I am around but just looking in as and when time allows.

No response from CCA request once the 12 +2 days has expired means the debt is
unenforceable until the agreement is produced.

nem.

[jojo03]

Re: Bcs claim form, lowell/shop direct

Ok thanks Nem, I will wait until Friday and then amend my defence to confirm it wasn't received within the allowed time before I submit. I guess what I've written above is ok, I will just need to add to point 11 that no response or agreement has been received within the allowed time of 12+2 days?

[jojo03]

Re: Bcs claim form, lowell/shop direct

DEFENCE SUBMITTED! Feeling nervous and hopeful. How long until we hear anything after submitting defence usually? I received nothing from Lowell by the way, but I suppose they have until the end of today? Thanks for your help thus far :-)

[FlamingParrot]

Re: Bcs claim form, lowell/shop direct

DEFENCE SUBMITTED! Feeling nervous and hopeful. How long until we hear anything after submitting defence usually?

Claimant has 28 days from receipt of your defence to respond saying whether they wish to proceed with the claim or not, if they don't respond the claim will be stayed.

I received nothing from Lowell by the way, but I suppose they have until the end of today? Thanks for your help thus far :-)

Why the end of today? They can provide the agreement at any point. If the claim proceeds, the court will issue directions including the requirement to disclose documents. That will be some time down the line, once you've received a directions questionnaire, etc.

[jojo03]

Re: Bcs claim form, lowell/shop direct

Thank you for your reply, today marks the final day of the 12+2 days they have to respond to my CCA request, so I was under the impression that they now cannot enforce until it is produced. I am hoping I don't get home to find a letter waiting on my doorstep, but if it turns up any day now will I have to amend my defence or will the court just take the SB status into account?

[FlamingParrot]

Re: Bcs claim form, lowell/shop direct

Thank you for your reply, today marks the final day of the 12+2 days they have to respond to my CCA request, so I was under the impression that they now cannot enforce until it is produced. I am hoping I don't get home to find a letter waiting on my doorstep, but if it turns up any day now will I have to amend my defence or will the court just take the SB status into account?

SB is an absolute defence and always takes precedence over other issues. Even if there was an agreement signed by you with all the terms, etc. if there's been no payment or written acknowledgment in at least six years then it would still be unrecoverable through the courts. If you submit a SBd defence, the onus is on them to prove it isn't. :thumb:

[jojo03]

Re: Bcs claim form, lowell/shop direct

Hi all, I have an update...

So I received a letter from BC with intent to proceed, and received the small claims track form which I sent back- making sure I agreed to mediation and served copies on all parties.
I received a call last week from mediation but missed it as I've been ridiculously busy with work. I tried calling back Friday evening, Monday and today but couldn't get through.
Today I got a letter titled 'notice of transfer of proceedings' which basically states that as a mediation appointment has not been made, the claim has been transferred to the county court hearing centre for allocation and I should wait for the judges directions.
Does this mean I am now waiting on a court date? Will it go against me that I wasn't able to make a mediation appointment?
I have not received any agreement from Lowells or a reply to my CCA request whatsoever. Though I understand that doesn't really matter since the debt is SBd.
Thanks in advance for your assistance!

[nemesis45]

Re: Bcs claim form, lowell/shop direct

Hi all, I have an update...

So I received a letter from BC with intent to proceed, and received the small claims track form which I sent back- making sure I agreed to mediation and served copies on all parties.
I received a call last week from mediation but missed it as I've been ridiculously busy with work. I tried calling back Friday evening, Monday and today but couldn't get through.
Today I got a letter titled 'notice of transfer of proceedings' which basically states that as a mediation appointment has not been made, the claim has been transferred to the county court hearing centre for allocation and I should wait for the judges directions.
Does this mean I am now waiting on a court date? Will it go against me that I wasn't able to make a mediation appointment?
I have not received any agreement from Lowells or a reply to my CCA request whatsoever. Though I understand that doesn't really matter since the debt is SBd.
Thanks in advance for your assistance!

Was the call the actual mediation appointment?

Yes wait for the directions.

How sure are you of the statute barred status of the debt.

nem

[jojo03]

Re: Bcs claim form, lowell/shop direct

No it was just them calling me to arrange an appointment, and I booked a day off and tried calling them back to make the appointment but couldn't get through.
I am as sure as I can be with the SB status. The account was opened 8 years ago and not a penny was paid on it, not to Lowell, not to Shop Direct and not to BC.
At what point does the clock start ticking?

[jojo03]

Re: Bcs claim form, lowell/shop direct

is this not sounding too promising?

[jojo03]

Re: Bcs claim form, lowell/shop direct

:tinysmile_aha_t: I can't believe I didn't come back to update!! I thought I had, so sorry.
Well, good news..... I didn't have to go to court. The court asked for copies of the agreement and questioned the SB status back in June/July. BC/Lowell could not provide I assume because the next thing I received in the post was a letter from BC to advise they were standing down and the account had been updated to £0.00 owed. Yay!!
This is still to this day showing on my credit file as a default though, and the full amount still shows.
I have tried looking for the letter that I put in that 'safe place' and can't find it for love nor money. Any advice?? Is this normal??

- - - Updated - - -

Just to clarify, it was a formal notice of discontinuance that I received- couldn't think of what it was called

:tinysmile_aha_t: I can't believe I didn't come back to update!! I thought I had, so sorry.
Well, good news..... I didn't have to go to court. The court asked for copies of the agreement and questioned the SB status back in June/July. BC/Lowell could not provide I assume because the next thing I received in the post was a letter from BC to advise they were standing down and the account had been updated to £0.00 owed. Yay!!
This is still to this day showing on my credit file as a default though, and the full amount still shows.
I have tried looking for the letter that I put in that 'safe place' and can't find it for love nor money. Any advice?? Is this normal??