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

[nemesis45]

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?

You will need to respond to the WS for a start 12 days after receiving Carters WS it very likely that Carter may apply for summary judgement.

Please post up the WS from Carter asap, I'm not sure we can salvage anything from this at the moment.

Any comments please [MENTION=6]Amethyst[/MENTION] ?

[ash3011]

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

Thanks for the swift reply nemesis. Carter’s WS is as follows:



I, …, Legal Administrator of Bryan Carter Solicitors LLP, … make the following statement believing it to be true.


1. I have conduct of this matter subject to the supervision of my principals at Bryan Carter Solicitors LLP of … aforesaid, the Solicitors for the Claimant. I make the following statements from within my own knowledge save where otherwise appears.


2. The Defendant entered into a credit agreement with Capital One (the ‘Original Creditor’) on, under account number: … (the ‘Agreement’). A signed copy of the application dated 6 September 2002, together with terms and conditions is attached at ‘UB1’. The Application was obtained at: …(my old address).


3. The Agreement is regulated by the Consumer Credit Act 1974.


4. The Defendant had the benefit of the credit facility. The Claimant exhibits a copy of a statement of account for the period between 5 October 2002 and 6 July 2015 at ‘UB2’.


5. The Defendant breached the terms and conditions of the Agreement by failing to pay the minimum monthly payments as and when they fell due or to pay the default sum by the due date.


6. The account fell into default on 4 December 2009. A copy of the Default Notice sent to the Defendant at: …(my old address), is exhibited as ‘UB3’. A copy of the Statement of Default sent to the Defendant on 4 December 2009 also at …(my old address), is exhibited at ‘UB4’.


7. The debt was assigned to the Claimant on 24 July 2015 (their mistake not mine) and a copy of the Notice of Assignment sent to the Defendant on 1 August 2014 is exhibited at ‘UB5’.


8. On 29 May 2015 a letter was received by the Claimant’s solicitors from the Defendant making a request for documentation pursuant to Part 321 of the Civil Procedure Rules 1998 (‘CPR’). A response was sent on the same day confirming that the matter will most properly be allocated to the Small claims Track and that Part 31 of the CPR will therefore not apply.


9. On 8 June 2015 the Claimant’s solicitors were advised by the Claimant a request for documentation pursuant to the Consumer Credit Act 1974 (‘CCA’) had been received from the Defendant. The Claimant now produces the agreement at ‘UB1’ and statements of account at ‘UB2’. This rectifies and earlier default. The Claimant believes it has complied with its obligations under the CCA.


10. On 10 June 2015 a letter was received by the Claimant’s solicitors from the Defendant disputing that the matter will be allocated to the Small Claims Track and stating that he is unable to file a defence without documentation. A response was sent on the same day reiterating our letter of 29 May 2015.


11. The defendant has no valid Defence or prospect of successfully defending the Claim.


12. The Claimant submits that the Claim amount of … remains due and payable by the Defendant.


13. The Claimant submits that the Defendant does not have a valid Defence. The Claimant requests that the Defendant’s Defence be struck out under Part 3.4 Civil Procedure Rules and Judgment be entered in favour of the claimant in the sum of £… inclusive of costs and interest to date, plus interest at the daily rate of £0.63 from 20 May 2015 to the date of the hearing, being 183 days, £115.29. The costs included are as follows: Claim Fee £185.00 Fixed Costs £80.00 Final Hearing £335.00.


I believe that the facts stated in this Witness Statement are true.


Signed …


This Statement is dated 13 of October Two Thousand and Fifteen and is filed on behalf of the Claimant.




The letter accompanying the Witness Statement also says the Claimant will not be represented at the Hearing and will seek to rely on the enclosed evidence. As I said some of the enclosed documents seem nonsensical. The copy of the statement of account suggests I didn’t make any payments at all for 6 years.

[ash3011]

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

Anyone have any suggestions?

[Kati]

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

Anyone have any suggestions?

:bump: for [MENTION=55034]nemesis45[/MENTION] xx

[ash3011]

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

Anyone at all have any suggestions how I should best proceed now?

[ash3011]

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

Can I please get some help from someone with this? FlamingParrot? Amethyst?

My case is due to be heard in a week. I think I messed up big style and would just like to what I should say next week in court.

Thanks.

[ThisIsMusic]

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

Hi Ash,

I'm by no means a legal expert. I only came here for advise myself a few months back, but with the limited knowledge I have I'd be looking at a tomlin order if I were you. Might just be the only way to avoid a CCJ now.

Another option I see on here often is to check that the evidence they have sent is compliant but you would need one of the more knowledgeable members here to look at that for you.

Not sure how it works when you haven't sent your WS in time.

Maybe PM Amethyst or nemesis45.

All the best.

[ash3011]

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

Hi ‘Music,

Thanks for your reply and your input.

Are you saying you think I should try to arrange a Tomlin order before the Hearing (on Wednesday)?

By compliant evidence do you mean check that it’s ‘proper’ and legal?

I suspect I don’t have a case at all and wonder if I should even go to court on Wednesday. What would happen if it just goes ahead without me there? The Claimant has already stated they won’t be there and are relying just on the evidence.

I have just private messaged nemesis and Amethyst as you suggested to get their input too at this late stage.

[MIKE770]

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

if no CCA etc then bet they discontinue Monday/Tuesday judging by the way they operate, if CCA is unenforceable then that is what they usually do, no time to read all your thread but that is the norm for Carters, since they will not be attending if it goes ahead.

If it goes ahead then you be there or possibly loose> see what the others say?

[nemesis45]

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

:bump: for @nemesis45 xx

Got it thanks Kati!1

[nemesis45]

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

Can I please get some help from someone with this? FlamingParrot? Amethyst?

My case is due to be heard in a week. I think I messed up big style and would just like to what I should say next week in court.

Thanks.

Hello Ash,

Responding to [MENTION=49370]Kati[/MENTION] and your PM

There was I believe some indication that this was statute barred what happened to that theory?
Carter is I understand not attending or sending a representative either because he's sure of his
ground or more likely he doesn't want his "evidence" tested in court.

You must certainly attend you have the undivided attention of a judge, you can explain your earlier
problems then.

There is no reason why if things are not going your way ask the judge about a consent order.

nem

[Amethyst]

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

The statement that they sent with the witness statement shows no payments have been made in at least 6 years ? so how does that fit with ''I spoke to someone at Capital One who told me the last payment was made on 21/06/09. '' - does that payment show on the statement ?


Have they included the recon of your agreement ? ( there's some examples http://www.legalbeagles.info/forums/...and-Agreements if you want to see if yours is similar )


Just to correct something Nemesis said, no you can't ask the judge about a consent order -- any consent order needs to be agreed between your self and the claimant and then submitted to the court - BEFORE the hearing.

So if the CCA is valid, and you don't believe the debt is statute barred, you would have to call the claimant and try to negotiate an out of court settlement/installments under a tomlin order - this means the case stays on hold in the court unless you default on the agreed payments.

[ash3011]

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

Thanks MIKE770, nenesis45 and Amethyst for your input.

The situation is this:

I had a Capital One credit card and was persuaded by Beneficial Claims that the credit card debt might be unenforceable so I stopped making payments. The last payment I made was on 21/06/09 and the account was defaulted on 4/12/09 so the debt is not statute barred.

I was proceeding along the lines of not being able to defend properly because Carter/Lowell hadn’t provided documentation when I requested it. Then I failed to submit a Witness Statement after I received the Notice of Allocation. I then received documentation from Carter/Lowell including the CCA.

It’s probably of no importance but where their documentation doesn’t make sense to me is where their statement of account shows I didn’t make any payments at all from when the account was opened on 6/09/02 until 15/10/08. (I received a similar copy of a statement of account directly from Capital One after I made a request a few months ago, which shows no payments made between 6/09/02 and 1/06/08). It’s as if they have no accurate information for the first 6 years of the account. I know I made regular payments then but couldn’t obtain statements from my old bank account to check because the bank also told me they didn’t hold account data that old.

I don’t think I have any defence at all and was just asking what I should do about the hearing on Wednesday. As Amethyst suggested there isn’t really anything other than trying to negotiate an out of court settlement is there? And if I’m not going to do that does it make as much sense not going to the hearing and letting the decision be made in my absence as it does to be there? If the only difference between having a CCJ and not having one is that my credit rating is affected I don’t think I’m overly concerned about that at this point.

Any opinions?

Thanks people.

[nemesis45]

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

Good morning Ash,

Personally I would not recommend not going to the hearing, you don't want
them having a free rein in court.
Some paralegals dodgy witness statement going unchallenged may result
in a vastly different outcome than if you attend.

nem

[ash3011]

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

Hi nem,

I appreciate what you’re saying but the outcome is either going to be that I owe this money or that I don’t, isn’t it? I’ve seen the witness statement and it doesn’t appear to be dodgy to me. Remember, the Claimant is not going to be represented at the Hearing and will be relying on the evidence I’ve seen.

Any comments before the morning Amethyst?