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

[FlamingParrot]

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?

There's no need to worry about either of those issues at this point. Having no information is not the same as saying this debt is not yours. In principle, if someone is going to sue someone else, they should have the documents they intend to rely on. Mr Carter is representing Lowell who would have bought the account without any paperwork. They just issue claims in bulk in the hope of obtaining judgment by default or an admission without question.

As for acknowledging the debt, for the purposes of limitation, the clock would have stopped when the claim was issued anyway.

[ash3011]

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

Thanks for the swift response FlamingParrot.


You’re absolutely right. Of course having no information isn’t the same as saying the debt isn’t (or is) mine.


I’ve changed the wording back to the original and sent the letter off to Bryan Carter. Let’s see what happens next.

[ash3011]

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

Unsurprisingly the response I got from Bryan Carter to my second request for disclosure and disputing that “this matter will most properly be allocated to the Small Claims Track” etc. was as follows:


Dear Mr xxxxxxxxxxxxx

LOWELL PORTFOLIO I LTD v xxxxxxxxx
ACCOUNT NO: …
CLAIM NO: …

We write further to your letter dated 4 June 2015 requesting disclosure under part 31 of the Civil Procedure Rules.

We reiterate the contents of the letter sent to you on 29 May 2015.

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.

It is our understanding that it is the policy of the original creditor to issue agreements at the point of 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 your defence. We also confirm we are in receipt of your acknowledgement of service.

Documents will be provided in accordance to the Courts directions.

We recommend you seek independent legal advice.

Yours sincerely…


What should I do now? I have to submit my defence by 21 June so should I complete and send that and forget about any further contact with Bryan Carter?

Can I check: I can submit my defence online can’t I? It doesn’t have to be written on the form that’s included in the response pack and sent in the post does it?

My original thought was that I was going to claim I believed the debt was unenforceable because I had not signed a ‘proper’ agreement including all the prescribed terms but FlamingParrot suggested Lowell could produce a copy of a properly executed agreement at any time right up to the hearing and my defence would be blown to pieces. Isn’t it very unlikely that they will actually produce anything though? Will Lowell have a copy of an agreement with all the required inclusions?

Should I stick instead to the defence that I haven’t received the paperwork allowing me to properly assess my position?

Could you point me towards an example of the best defence I can make?

What usually happens after a defendant submits the defence that he has not been able to obtain the relevant paperwork from the claimant?

I just noticed the cheque I sent to Lowell with my CCA request has been cashed today. Does that mean they’re about to send me a copy of the agreement or they just decided to pocket the £1.00?

[Amethyst]

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

Yes you can enter your defence online through moneyclaim online - Theres a draft for an idea of what to put http://www.legalbeagles.info/forums/...t-Court-Claims

What should I do now? I have to submit my defence by 21 June so should I complete and send that and forget about any further contact with Bryan Carter?
There's not a lot of point arguing the toss with them, you have requested, and they have refused and refused an extension too so you're fine to put in a defence

Can I check: I can submit my defence online can’t I? It doesn’t have to be written on the form that’s included in the response pack and sent in the post does it?
You can file the defence through the moneyclaim online service.

My original thought was that I was going to claim I believed the debt was unenforceable because I had not signed a ‘proper’ agreement including all the prescribed terms but FlamingParrot suggested Lowell could produce a copy of a properly executed agreement at any time right up to the hearing and my defence would be blown to pieces. Isn’t it very unlikely that they will actually produce anything though? Will Lowell have a copy of an agreement with all the required inclusions?
Difficult to say, when was the account opened ?Capital One agreements do tend to turn up and be valid - when Lowell pull their fingers out their bottom and bother. If they do come up with the agreement post it up - but at that stage you should still be able to negotiate a Tomlin Order to pay the debt without having a CCJ against you. Don't forget as well as the CCA they need the default notice and notice of assignment.

Should I stick instead to the defence that I haven’t received the paperwork allowing me to properly assess my position?
For the moment yes, have a look at the draft defence.

Could you point me towards an example of the best defence I can make?
see above link

What usually happens after a defendant submits the defence that he has not been able to obtain the relevant paperwork from the claimant?
Sometimes they produce the documents and you'd negotiate settlement/Tomlin order with them, else they don't produce documents and discontinue the claim, or they don't produce them and let the case become stayed in the court system while they try and find them. It really is a bit of play it by ear I'm afraid.

I just noticed the cheque I sent to Lowell with my CCA request has been cashed today. Does that mean they’re about to send me a copy of the agreement or they just decided to pocket the £1.00?
Nope, just means they are slow at their admin.

[FlamingParrot]

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

Unsurprisingly the response I got from Bryan Carter to my second request for disclosure and disputing that “this matter will most properly be allocated to the Small Claims Track” etc. was as follows:

Mr Carter ALWAYS uses the same template in response to everyone and never sends any documents or agrees to an extension, however, you still have to follow the process.

My original thought was that I was going to claim I believed the debt was unenforceable because I had not signed a ‘proper’ agreement including all the prescribed terms but FlamingParrot suggested Lowell could produce a copy of a properly executed agreement at any time right up to the hearing and my defence would be blown to pieces. Isn’t it very unlikely that they will actually produce anything though? Will Lowell have a copy of an agreement with all the required inclusions?

You can only say the above if you believe that to be the case, for example, if you filled in an application form which was just a little booklet or a magazine advert where there were no terms, if the terms were later sent with the card or if you didn't sign anything at all as was often the case with old catalogue accounts. If you make such an assertion, you'd have to be prepared to explain how you know that to be the case.

Should I stick instead to the defence that I haven’t received the paperwork allowing me to properly assess my position?

I'd say so.

Could you point me towards an example of the best defence I can make?

What usually happens after a defendant submits the defence that he has not been able to obtain the relevant paperwork from the claimant?

Amethyst has posted a link to a thread with example generic defences. :yo:

Once you file it, they have 28 days to reply to the court and say whether they wish to proceed with the claim, if so, the court will issue both sides with directions questionnaires that have to be filled in and returned by a certain date. Following on from that, the court will give directions that will include disclosing the documents they intend to rely on.

I just noticed the cheque I sent to Lowell with my CCA request has been cashed today. Does that mean they’re about to send me a copy of the agreement or they just decided to pocket the £1.00?

The will have to go back to the original creditor to request a copy of the agreement, Lowell wouldn't have it in their possession so it all depends on what they manage to get back. As above, they still have time before the court's directions come through. :ranger:

[ash3011]

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

Thanks Amethyst and FlamingParrot for your help. You must provide people with answers to the same or very similar questions over and over again. Your patience is very much appreciated.

Here’s my unoriginal request then. I’m just about to enter my defence online and would be very grateful if you could look it over. It’s pretty much word for word the draft defence you linked to but there are a few areas I’m unsure about (indicated by the blue italics):


1. I received the claim XXXXXXXX from the Northampton County Court on 19 May 2015
- Is that adequate or does it have to be the full address?

2. Each and every allegation in the Claimant’s statement of case is denied unless specifically admitted in this Defence.

3. This claim appears to be for a Credit Card agreement regulated under the Consumer Credit Act 1974.

4. The Claimant’s statement of case fails to give adequate information to enable me to properly assess my position with regards 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 Capital One to Lowell Portfolio I Ltd on 28 July 2014. The Defendant does not recall receiving notice of this assignment.
- I think I probably did receive notice of this assignment. Am I ignoring that for the sake of my defence?

7. It is denied that Capital One 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.
- Similarly, I think I probably had a default notice. For my defence am I claiming I didn’t?

8. On the 26 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 LLP. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

9. Bryan Carter Solicitors LLP has not sent any of these documents to me.

10. On the 26 May 2015 I sent a formal request for a copy of the original agreement to Lowell Portfolio I Ltd pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.
- Is it section 77 or section 78 here?

11. The Claimant has failed to comply with [s77 (1) / s 78 (1)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement.
- Again I’m not sure which of these options is the correct one.

12. I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but they have declined.


13. 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.


14. I request the court orders the Claimant to provide the necessary documentation in order for me to fully plead my case else the claim should stand struck out.


15. In the event that the relevant documents are received from the Claimant I will then be in a position to amend my Defence, and would ask that the Claimant bears the costs of the amendment.


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


Statement of Truth


The Defendant believes that the facts stated in this Defence are true.


Signed …………………………………………


Dated …………………………………………..
- Do I just type my name and the date here? I can’t provide a real signature online can I? - Sorry if that’s a particularly stupid question.


Does that seem ok? Are there any glaring errors or omissions? Or anything else I should add to strengthen my defence?

[ash3011]

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

Anyone available?

[nemesis45]

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

Hi Ash,
1. Northampton County Court Business Centre.

2. You can use a term such as " the defendant cannot recall receiving etc.

3 Sect 78 but in reality you can state the claimant has failed to comply
with may request for a copy of the agreement made under the provisions
of CCA 1974. ( The judge knows all about this section (s) of the Act)

keep as simple and straight forward as possible

Type in your full name :

nem

[ash3011]

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

Thanks nemesis. Anything to add Amethyst or FlamingParrot?

[FlamingParrot]

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

Thanks nemesis. Anything to add Amethyst or FlamingParrot?

6. The Claimant’s statement of case states that the account was assigned from Capital One to Lowell Portfolio I Ltd on 28 July 2014. The Defendant does not recall receiving notice of this assignment.
- I think I probably did receive notice of this assignment. Am I ignoring that for the sake of my defence?

You can say something like: "The Claimant is put to strict proof that such an assignment took place and that a valid notice, was served upon the Defendant.

That way you are not denying having received the NoA.

7. It is denied that Capital One 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.
- Similarly, I think I probably had a default notice. For my defence am I claiming I didn’t?

As above, it's best not to categorically deny having received it if you are not sure, just say they are required to provide it.

8. On the 26 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 LLP. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

9. Bryan Carter Solicitors LLP has not sent any of these documents to me.

10. On the 26 May 2015 I 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.
- Is it section 77 or section 78 here?

11. The Claimant has failed to comply with s 78 (1) of the Consumer Credit Act 1974 and by virtue of s 78 (6) of the Consumer Credit Act 1974 cannot enforce the agreement.
- Again I’m not sure which of these options is the correct one.

s.78 for credit cards - in both cases.

12. I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but they have declined.

13. 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.

14. I request the court orders the Claimant to provide the necessary documentation in order for me to fully plead my case else the claim should stand struck out.

15. In the event that the relevant documents are received from the Claimant I will then be in a position to amend my Defence, and would ask that the Claimant bears the costs of the amendment.

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

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.

A couple of comments, as you are submitting a Statement of Truth to the court, it's best to be as truthful as you can, rather than saying you never received those documents, as you make it sound like you did receive them at some point but, given the time that has passed since then, you cannot be sure at this point nor can you find them in your files.

[ash3011]

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

Thanks again nemesis and FlamingParrot for your invaluable help. Your points were duly taken on board, my defence was amended and submitted online. I’ll wait to see what happens next.

One more (daft) question before then: My defence was due on 21 June and submitted after 4pm on 20 June. I imagine the courts aren’t open until 22 June. That’s not a problem is it?

[ash3011]

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

Any thoughts on my last question anyone? It’s done now anyway, I just hope it won’t be disregarded because I didn’t submit it earlier.

[Amethyst]

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

You should be fine xxx

[ash3011]

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

Thanks for that Amethyst.

[ash3011]

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

I’ve messed up here. Can anyone help?

The last thing I did about my case was submit my defence online on 20 June and agree to mediation. On 18 August I received a letter saying the Small Claims Mediation Team had been unable to secure a mediation appointment at that time and the claim had been transferred to the County Court Hearing Centre at St Helens.


On 30 September I received a Notice of Allocation to the Small Claims Track. Stupidly I didn’t read the letter properly. The only bit I took in was that the hearing will take place on 18 November. I managed to miss the part that said the court believed the case was suitable for mediation and that the offer had to be accepted within 7 days and more importantly that I needed to serve and file copy documents by 14 October. I only realised my mistake yesterday so I’ve missed that deadline.


On around 17 October I received a witness statement from a legal administrator of Bryan Carter Solicitors on behalf of Lowell Portfolio I Limited with several documents some of which seem nonsensical to me.


What should I do about not filing the papers?