Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

[ash3011]

Received a claim? Yes
Issue Date: 19-5-2015
Amount approx: 3039.32
Claimant: Lowell Portfolio I Ltd
Solicitor: Bryan Carter Solicitors LLP
Original Credit: Capital One

Particulars of Claim:
THE CLAIMANTS CLAIM IS FOR THE SUM OF 2855.33, BEING MONIES DUE FROM THE DEFENDANT TO THE CLAIMANT UNDER AN AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974 BETWEEN THE DEFENDANT AND Capital One UNDER ACCOUNT REFERENCE XXXXXXXXXXX AND ASSIGNED TO THE CLAIMANT ON 28/07/14, 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.

AND THE CLAIMANT CLAIMS 2855.33

THE CLAIMANT ALSO CLAIMS STATUTORY INTEREST PURSUANT TO S.69 OF THE COUNTY ACT 1984 AT A RATE OF 8% PER ANNUM FROM THE DATE OF ASSIGNMENT OF THE AGREEMENT TO DATE BUT LIMITED TO A MAXIMUM OF ONE YEAR AND A MAXIMUM OF 1000 AMOUNTING TO 183.99

Stat Barred?

Have sent:

Other Info:
I was persuaded by Beneficial Claims/We Fight Any Claim in 2009 that my debt with Capital One (and another debt with Barclaycard) was unenforceable. I paid them (I can’t remember how much now) to handle the case and heard nothing for a while then started receiving letters from various debt recovery companies. I spoke to agents at Beneficial Claims who said they were dealing with my case.
After a few more letters from debt collectors I wrote stating my account was in dispute and asked them to deal with Beneficial Claims. I also wrote to Beneficial Claims, now renamed We Fight Any Claim and asked them what was happening with my case. I received no reply.
I got the occasional letter from debt companies but ignored them hoping they were just chancing their arm.
In August 2012 I heard from We Fight Any Claim telling me Longridge Law Limited had been contacted to review my case and provide me with advice to progress it. At that point I didn’t want to go through providing all the information again and didn’t fill in the detailed forms Longridge Law sent me. I hoped maybe the debt had been forgotten about at that point.
Perhaps foolishly I’ve ignored any further letters from debt recovery companies until I received the Claim Form from Lowell Portfolio I’ve detailed above.

What should I do next?

[ash3011]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

Anyone?

[nemesis45]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

Hi welcome to LB,

I'm afraid to have fallen badly into the claims racket.
First steps acknowledge the claim and intention to
defend.

You can do this online at Money claim Online
(MCOL) make sure you retain password (s).


Next a CPR 31.14 request to Carter ( template in the forum library) there is no fee for this request.
You may request Only the documents mentioned in the particulars of the claim (POC) nothing else.
In your case the agreement, the notice of assignment, and the default notice only.

Then A CCA request made under section 78 of the Consumer Credit Act 1974 (as amended) to see if Lowell has an agreement for the account.

There is a £1 statutory fee to pay (use a cheque or Postal Order endorsed " For Statutory Fee Only").

Lowell has 12 + 2 Working days to comply. Failure to comply means the debt becomes unenforceable until the agreement is produced.

Template in the forum library.

Now some history please.

1. When was the account opened?

2. When was the account defaulted.

3. When did you last make any payment * to any company regarding this account *?

4. Does this account show on your credit reference files? If you haven't checked try Noddle Call Credits free online service.

Do you have any reason to dispute the alleged that you may be able to use in defence?

nem

[ash3011]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

Hi nemesis, thanks very much for the reply and for your help.


I have acknowleged the claim and intention to defend at Money Claim Online and I’m in the process of making the requests you advised to Bryan Carter Solicitors LLP and Lowell Portfolio I Ltd but I’m looking at the templates and already have a couple of questions:


I apologise if I’m being very dim and too literal here (this is all very new to me) but on the CPR 31.14 request, at the end of the sentence ‘To enable me to file my defence and/or counterclaim…’ what date do I use to say I’m filing my defence? Or do I drop the date part?


I’m also not sure about the cheque for the CCA request (I haven’t written a cheque in years). Endorsing it ‘For Statutory Fee Only’ just means writing that on the back and making it out to Lowell doesn’t it? - See, VERY dim here.


As for the account’s history, I checked my credit report with Noddle at your suggestion and:


1. According to the credit report the account was opened on 14/09/2002.


2. Again, according to the report the account was defaulted on 04/12/2009 but Beneficial Claims took on my case to write off this debt and another one in June 2009. Wouldn’t the account have been defaulted as soon as Beneficial Claims contacted Capital One telling them of my intention to dispute the debt/account?


3. I haven’t made any payment regarding this account since Beneficial Claims suggested I stopped, around June 2009, if not a month or two before that, when it was still a Capital One credit card debt, before Lowell took it on.


4. Yes it does show up on the credit report.


The only reason I have to dispute the debt is the one I think Beneficial Claims was suggesting, that the original agreement wasn’t properly executed and was therefore unenforceable.


My memory of this is pretty hazy now. It was all happening at a time when my partner had recently died and left a lot of debt and the idea that I could get rid of any debt (mine in this case) was gratefully jumped upon.


ash3011

[nemesis45]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

Hi Ash,
Just defence no counter claim, just intention to defend in full.
2002 agreement requires a proper copy of the agreement, so makes it harder for them to come up with one.

Capone were always slow placing defaults so the date could be right,
as the debt is for a credit card the date the very last payment is key if we are to claim that
the debt is statute barred there is a big BUT to this and that's what Beneficial Claims said to Capone and
if it can be considered as an admission of liability.

It's worth a call to Capone after the bank hol to see if they still have details of the last payment.

What evidence is their of the agreement not being properly executed??

The CCA request has a time scale of 12 + 2 Working Days what if anything Lowell come up with
will be interesting.

nem

[FlamingParrot]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

1. According to the credit report the account was opened on 14/09/2002.

2. Again, according to the report the account was defaulted on 04/12/2009 but Beneficial Claims took on my case to write off this debt and another one in June 2009. Wouldn’t the account have been defaulted as soon as Beneficial Claims contacted Capital One telling them of my intention to dispute the debt/account?

3. I haven’t made any payment regarding this account since Beneficial Claims suggested I stopped, around June 2009, if not a month or two before that, when it was still a Capital One credit card debt, before Lowell took it on.

This is the most important bit of all, if you paid in June 2009 then sadly there's no chance of it being statute barred, however, if it was a couple of months earlier, it would be. Strictly speaking SBd is six years from the cause of action, not the date of last payment. The cause of action would be after your first missed payment, normally a month after your last payment if that makes sense.

The only reason I have to dispute the debt is the one I think Beneficial Claims was suggesting, that the original agreement wasn’t properly executed and was therefore unenforceable.

I assume Beneficial Claims was one of them companies who promised to get accounts ruled unenforceable in court which was common practice at the time. A lot of those companies asked for up-front payments, meaning they *could* have told you it was unenforceable as a way to hook you into doing a deal with them.

Have you still got the agreement you requested at that time by any chance? It would be interesting to see it. You will be sending a fresh CCA request, however, given we are dealing with Lowell here, I'd say the likelihood of them supplying one is almost none. As you opened the account before 2007, if you didn't sign a properly executed agreement containing all the prescribed terms, the account would be irredeemably unenforceable even if it wasn't statute barred. Out of interest, how far did you get with Beneficial Claims in your quest to have the account declared unenforceable?

[nemesis45]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

Paid in June 2009 IF not a month or two before that.!

[Amethyst]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

http://news.bbc.co.uk/1/hi/business/8507054.stm

I think they changed their name to ' we fight any claim ' after that ( well Simon Chorlton is now director of wfac anyway )

[ash3011]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

Thanks nemesis, FlamingParrot and Amethyst for your interest and your input.


As I said before, this is all very new to me and as dim as it seems I really did want to know:


1. Is the endorsed cheque for the CCA request made out to Lowell Portfolio I Ltd and has ‘For Statutory Fee Only’ written on the back?


2. Do I omit the date part of the sentence stating ‘I require inspection of documents you mention in your statement of case ahead of filing my defence on XX XXXX 201X’ on the CPR request? - I don’t HAVE a date do I?


Additionally:


3. Do I put Lowell’s name and address (as claimant) at the top of the CPR request even though I’m sending it to Bryan Carter?


4. Is it important to include the whole of the paragraph ‘You should note that this claim has not yet been allocated to a specific track and the provisions of CPR 27(2) are of no effect…’?


I apologise again if I seem very stupid in asking these questions.


I shall try Capital One to see if they still have any details of the last payment, as you suggest nemesis, although I don’t have many details myself of that account anymore.


I don’t think there IS any evidence of the agreement not being properly executed. It was, as FlamingParrot rightly assumes, the way Beneficial Claims/We Fight Any Claim work(ed) I think, suggesting credit card debts were unenforceable and asking for (and getting) a payment in advance to work on the case.

I don’t have the agreement I requested at that time, FlamingParrot, and I suspect the agreement WAS properly executed. I don’t know how far Beneficial Claims got with my case because they didn’t keep me apprised of their work really. Since I didn’t hear anything regarding my debts for quite a while, I trusted/hoped Beneficial Claims were doing what they promised.


As I said in my original post it was only a couple of years later, when I started receiving more letters from debt collectors, that I contacted Beneficial Claims/We Fight Any Claim again, to ask them what I should do about the new letters and for more information about the work they had done on my behalf. I didn’t hear back from them. Several months later they contacted me to tell me they were passing me on to another law firm. At that point I didn’t want to go through providing all the information again and didn’t fill in the detailed forms I was sent from the new firm.

[Kati]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

1: Yes ... write it on the back

2: Your defence is due 33 days after the date the claim was issued (link to date calculator at the top of the page)

3: If you're sending the cpr to BC then address it to them (using the reference on the claim form)

4: Yes ... leave the sentence as it is (they usually write back saying they don't have to comply as the claim will be put on a certain track)

[FlamingParrot]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

I apologise again if I seem very stupid in asking these questions.

No need to apologise, that's the whole point of having a forum where you can ask questions. It's not stupid to ask them, on the contrary, it's always better to ask questions rather than to make assumptions and end up doing the wrong thing.

I shall try Capital One to see if they still have any details of the last payment, as you suggest nemesis, although I don’t have many details myself of that account anymore.

If you submit a statute barred defence, the onus would be on the claimant to show that it isn't. :thumb:

I don’t think there IS any evidence of the agreement not being properly executed. It was, as FlamingParrot rightly assumes, the way Beneficial Claims/We Fight Any Claim work(ed) I think, suggesting credit card debts were unenforceable and asking for (and getting) a payment in advance to work on the case.

I don’t have the agreement I requested at that time, FlamingParrot, and I suspect the agreement WAS properly executed. I don’t know how far Beneficial Claims got with my case because they didn’t keep me apprised of their work really. Since I didn’t hear anything regarding my debts for quite a while, I trusted/hoped Beneficial Claims were doing what they promised.

The reason those companies started challenging the enforceability of accounts was because there were many where either:

• the agreement was not properly drawn up in the first place; or
• the debtor had not been presented with all the terms at the time of opening the account, for example, because it was an advert or a booklet and the terms were later sent out with the card; or
• the creditor just could not find the agreement.

As I said in my original post it was only a couple of years later, when I started receiving more letters from debt collectors, that I contacted Beneficial Claims/We Fight Any Claim again, to ask them what I should do about the new letters and for more information about the work they had done on my behalf. I didn’t hear back from them. Several months later they contacted me to tell me they were passing me on to another law firm. At that point I didn’t want to go through providing all the information again and didn’t fill in the detailed forms I was sent from the new firm.

Things changed after the Carey judgment in 2009, after that it was no longer possible to have an agreement declared unenforceable as a claimant which is how those companies worked, however, it is still possible for that to happen when you are a defendant. There was one such case only last Wednesday. :whoo:

[nemesis45]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

A number of claims are proceeding after a SB defence has been submitted Carter and Reston have been asking defendants for proof of the SB claim even when the dreaded " mystery " one off payment ploy has not been played.

Best to have some tangible back up now I think,

nem

[ash3011]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

Thanks Kati, FlamingParrot and nemesis for your help.


It seems my debt isn’t statute barred. According to my credit report the account was defaulted on 4/12/09. I spoke to someone at Capital One who told me the last payment was made on 21/06/09. He also told me their policy is to send a letter 3 months after the first missed payment (07/09 in my case) informing the customer the account will be defaulted in 28 days. My letter was dated 1/11/09 so 4/12/09 as the date of default for the account would be about right.


As FlamingParrot suggested the onus is on the claimant to show the debt isn’t statute barred, is there any merit in maintaining I believe it is to see what they’ll do about it? Or is that ill-advised?


Out of interest, what date does the 6 year statute barred limit apply to exactly? 6 years from the account default date to the date of the claim? Or 6 years to the date of a decision? Have there been cases where a claim was made before the end of the 6 years but the time expired before a ruling was made?


My only (other?) defence then is that the original agreement was improperly executed although I have no evidence of that.


I sent the CPR 31.14 and CCA requests and received the following from Bryan Carter:


Dear Mr Shaw


LOWELL PORTFOLIO I LTD v MR ANTHONY SHAW
ACCOUNT NO: …
CLAIM NO: …


We write further to your letter dated 26 May 2015 requesting disclosure under part 31 of the Civil Procedure Rules.


We confirm this matter will most properly be allocated to the Small Claims Track as this is a simple contractual matter and Part 31 of the Civil Procedure Rules 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. (- I’m not sure what this means - when were they dispatched to me?)


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.


We confirm our client is not agreeable to an extension for filing the defence.


As you will be aware a claim was issued in this matter on 19 May 2015 and we are in receipt of your acknowledgment of service. Please respond to the Claim using the Response Pack provided by the Court. You should comply with the deadlines outlined by the Court in order to avoid a default Judgment being entered against you.


We recommend you seek independent legal advice.


Yours sincerely…


What should I do next?

[FlamingParrot]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

It seems my debt isn’t statute barred. According to my credit report the account was defaulted on 4/12/09. I spoke to someone at Capital One who told me the last payment was made on 21/06/09. He also told me their policy is to send a letter 3 months after the first missed payment (07/09 in my case) informing the customer the account will be defaulted in 28 days. My letter was dated 1/11/09 so 4/12/09 as the date of default for the account would be about right.

As FlamingParrot suggested the onus is on the claimant to show the debt isn’t statute barred, is there any merit in maintaining I believe it is to see what they’ll do about it? Or is that ill-advised?

If Cap One were able to provide you with the exact payment dates over the phone, that means they would also be able to supply Lowell with a statement showing the payments you made.

Out of interest, what date does the 6 year statute barred limit apply to exactly? 6 years from the account default date to the date of the claim? Or 6 years to the date of a decision? Have there been cases where a claim was made before the end of the 6 years but the time expired before a ruling was made?

Unfortunately the clock stops at the time a claim is issued, not when a ruling is made, so the period in your case would run until the date printed on the claim, which would be earlier than Jun 21st. Furthermore, the six year period starts from the cause of action, not the last payment date.Cap One would have had no cause to take action against you on the day you'd just made a payment.

My only (other?) defence then is that the original agreement was improperly executed although I have no evidence of that.

I assume you haven't received a copy either via your CCA or CPR requests. Unless you have a clear recollection of how you opened the account and are sure that you did not sign an agreement containing all the prescribed terms (for example, because it was an advert on a magazine and the terms were sent to you later with the card), you wouldn't be able to state that fact in your defence. They could produce a copy of a properly executed agreement at any time right up to the hearing and your defence would be blown to pieces.

You could, however, file the generic defence where no paperwork has been received from the claimant. An example is here: http://www.legalbeagles.info/forums/...t-Court-Claims

The alternative would be to submit an unless order asking the court to force them to disclose the documents they are relying on.

I sent the CPR 31.14 and CCA requests and received the following from Bryan Carter:

Dear Mr Shaw

LOWELL PORTFOLIO I LTD v MR ANTHONY SHAW
ACCOUNT NO: …
CLAIM NO: …

We write further to your letter dated 26 May 2015 requesting disclosure under part 31 of the Civil Procedure Rules.

We confirm this matter will most properly be allocated to the Small Claims Track

This is Mr Carter's standard template letter he sends to everyone who requests documents.

as this is a simple contractual matter and Part 31 of the Civil Procedure Rules 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. (- I’m not sure what this means - when were they dispatched to me?)

That's just part of his generic bull. As is the statement below:

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.

He couldn't possibly have a clue what the original creditor's policies were, given that his illustrious client buys defaulted accounts from various banks, catalogue companies and even mobile networks. Once more, generic Carter bull.

What should I do next?

This is the usual response to his small claims argument: http://www.legalbeagles.info/forums/...385#post410385

[ash3011]

Re: Court Claim - Lowell Portfolio I Ltd / Capital One - 19-5-2015

Thanks for your help FlamingParrot.


You correctly assume I haven’t received a copy of the agreement via my CCA or CPR requests, just the standard ‘Part 31 of the Civil Procedure Rules will not apply’ response I posted above.


I’m just about to send my letter to Bryan Carter disputing their assertion the matter will be allocated to the small claims track and asking for the documents again and very quickly wanted to check something with you before I post it if I may:


I changed the sentence “I am unable to lodge my defence at this moment as I have no information regarding the alleged debt.” in the template letter to “I am unable… …as I am in need of more information regarding the alleged debt.” I don’t want to state definitively that I don’t know what they’re talking about but at the same time I’m not prepared to acknowledge the debt either. What do you think? Am I worrying over unnecessary details?