Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

[saintlyman]

Hello there

I am new here and after having a look round, I find myself going in circles. Can anyone please help with this County Claim against me?

(A little background is that I was previously settled almost £100,000 of personal debt before, during and post divorce from my ex wife. We both acknowledged our responsibilities and worked with a Consumer Credit Charity in Leeds to settle our debts. We paid 50/50 and settled in full).

20/08/05 accepted in writing for a Capital One credit card. I did not ever sign and return the CCA form.
03/09/05 further copy of the acceptance and CCA forms
Over the next few years i entered into financial difficulty/hardship with several periods of unemployment.

26/01/10 I sent a section 78 prove it request, recorded delivery
11/02/10 I sent a failure to comply and reminder, recorded delivery
11/02/10 (dated) Capital One sent me a copy of the original agreement purported to be signed by me, received stamped 05/09/05
PPI box crossed out and no signature in the PPI section
28/03/10 registered default date - showing as belonging to Lowell Portfolio I on credit expert.

I did nothing

I got a new job and have been effectively living overseas for since then, letters were sent from a selection of debt collection agencies including Lowell Portfolio to "my Address", which is actually my fathers address and used for post. I am not registered on the electoral role or for council tax at this address.

11/14 - 04/15 letters from Lowell Portfolio, Frederickston International and Red (part of Lowell Portfolio) including a pre-legal assessment warning

29/04/15 letter from Bryan Carter Solicitors entitled "Letter of Claim"
19/05/15 Claim from issued by County Court Business Centre - Northampton Court
20/05/15 letter from Bryan Carter Solicitors advising me that the claim had been made

Amount of debt at default date £1037.91
Interest £66.89
Court Fee £70.00
Solicitors Costs £80.00
Total £1254.80

I have been working overseas for much of this year and returned on the early hours of 01/06/15

01/06/15 - acknowledgement of service made indicating i wish to defend all of the claim.

In essence, my question is what to use as my defence.
* Failure to respond to my S78 request
* Forged signature on the CCA copy sent by Capital One

or by using an "Accord and Satisfaction" defence
Out of the £1037.91 stated as owing, £412 is from charges for late payment some which then incurred over limit charges. Using a bank charges repayment calculator on moneysavingexpert, I added £224.78 as interest on loss of savings. This totals £636.78
Then there is the PPI which I never requested but was taken anyway. Including the simple interest at 8% per month for loss of savings, this totals £279.46.
I haven't made any calculation for the interest Capital One charged me on these sums. I couldn't work that out.

£916.24 out of the £1037.91 is purely from fees and PPI alone.

Any ideas as to the best way to proceed, or a form of words to use on the claim forms?

I admit that I am responsible for my actions but I also admit that I'd like to try and reduce my liability to the insidious side of the money lending industry and try and get a small victory if possible.

Many thanks

Chris

[PAWS]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

Hi Chris
Just giving this a bum and I am sure one of the smart beagles will be along to help. You seem to be on the right track as you have responded to their claim and indicated you wish to defend.

[FlamingParrot]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

Welcome aboard

Sorry to have missed your post yesterday, and thanks to PAWS for the bump! :yo:

20/08/05 accepted in writing for a Capital One credit card. I did not ever sign and return the CCA form.
03/09/10 further copy of the acceptance and CCA forms

What happened between 2005 and 2010? Did you apply for the card in 2005 and then sign a new agreement with in 2010?

Over the next few years i entered into financial difficulty/hardship with several periods of unemployment.

26/01/10 I sent a section 78 prove it request, recorded delivery
11/02/10 I sent a failure to comply and reminder, recorded delivery
11/02/10 (dated) Capital One sent me a copy of the original agreement purported to be signed by me, received stamped 05/09/10
PPI box crossed out and no signature in the PPI section

Have you still got this document?

28/03/10 registered default date - showing as belonging to Lowell Portfolio I on credit expert.

Did you stop paying in 2010 or was that earlier?

11/14 - 04/15 28/03/10 registered default date - showing as belonging to Lowell Portfolio I on credit expert. letters from Lowell Portfolio and Red (part of Lowell Portfolio) including a pre-legal assessment warning

29/04/15 letter from Bryan Carter Solicitors entitled "Letter of Claim"

Did you ever reply to this letter?

19/05/15 Claim from issued by County Court Business Centre - Northampton Court
20/05/15 letter from Bryan Carter Solicitors advising me that the claim had been made

Amount of debt at default date £1037.91
Interest £66.89
Court Fee £70.00
Solicitors Costs £80.00
Total £1254.80

I have been working overseas for much of this year and returned on the early hours of 01/06/15

01/06/15 - acknowledgement of service made indicating i wish to defend all of the claim.

In essence, my question is what to use as my defence.
* Failure to respond to my S78 request
* Forged signature on the CCA copy sent by Capital One

Have you sent a new CCA request recently, i.e. after their letter of claim or after receiving the claim form? If not, you should send one now.
Have you sent a CPR 31.14 request for documents referred to on the particulars of claim?

You'll find the usual steps to take upon receipt of a claim here: http://www.legalbeagles.info/forums/...it-Court-Claim

or by using an "Accord and Satisfaction" defence
Out of the £1037.91 stated as owing, £412 is from charges for late payment some which then incurred over limit charges. Using a bank charges repayment calculator on moneysavingexpert, I added £224.78 as interest on loss of savings. This totals £636.78
Then there is the PPI which I never requested but was taken anyway. Including the simple interest at 8% per month for loss of savings, this totals £279.46.
I haven't made any calculation for the interest Capital One charged me on these sums. I couldn't work that out.

£916.24 out of the £1037.91 is purely from fees and PPI alone.

Any ideas as to the best way to proceed, or a form of words to use on the claim forms?

It would help if you could answer some of the questions above before going further. :typing:

You have a maximum of 33 days to file a defence. If the date printed on the claim is May 19th, your deadline would be the 21st of June: http://www.timeanddate.com/date/date...&am=&aw=&ad=33

I admit that I am responsible for my actions but I also admit that I'd like to try and reduce my liability to the insidious side of the money lending industry and try and get a small victory if possible.

Don't worry about that, a lot of us have been there, done that when it comes to paying (or not paying) our debts as well as our take on the bank's behaviour. :grin:

[saintlyman]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

Hello both and thanks for the welcome

Some answers:

• What happened between 2005 and 2010? Did you apply for the card in 2005 and then sign a new agreement with in 2010?
  
  • My mistake - I got the dates wrong. It should read
    • 20/08/05 accepted in writing for a Capital One credit card. I did not ever sign and return the CCA form.
      03/09/05 further copy of the acceptance and CCA forms
    
    
  • I applied in 2005, was accepted, used the card and account, and then stopped paying on 2010. My last ever payment was 01.11.09 and my last ever acknowledgment of the debt was the section 77-79 request dated 26.01.10

• Have you still got this document? (11/02/10 (dated) Capital One sent me a copy of the original agreement purported to be signed by me, received stamped 05/09/10)
  • Yes I have but again my mistake it is receive stamped 05/09/05

• Did you stop paying in 2010 or was that earlier?
  • My last payment was 01.11.09

• Did you ever reply to this letter? (29/04/15 letter from Bryan Carter Solicitors entitled "Letter of Claim")
  • No, I was out of the country

• Have you sent a new CCA request recently, i.e. after their letter of claim or after receiving the claim form? If not, you should send one now.
  Have you sent a CPR 31.14 request for documents referred to on the particulars of claim?
  • No, I will get both posted out tomorrow, but won't this affect the deadline for filing my defence?

Thank you very much, have I missed anything yet?

Regards

Chris

[saintlyman]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

Update

Have you sent a new CCA request recently, i.e. after their letter of claim or after receiving the claim form? If not, you should send one now.
Have you sent a CPR 31.14 request for documents referred to on the particulars of claim?

Both sent off yesterday, 1st class and signed for

[FlamingParrot]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

You indicate above that you've still got the purported agreement you received back in 2010, is there any chance you could remove your personal details and post it up? It would be interesting to see if it matched whatever they send (if anything), in response to your requests above.

[saintlyman]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

Hello Again

• You indicate above that you've still got the purported agreement you received back in 2010, is there any chance you could remove your personal details and post it up? It would be interesting to see if it matched whatever they send (if anything), in response to your requests above.
  • I don't have a scanner, and its not the nest of copies but I can try and get it scanned.

16.06.15 Reply from Bryan Carter Solicitors received. Dated and postmarked 15.06.15

I can't scan so here it is typed out....

"We thank you for your letter of 9 June 2015 requesting disclosure under Part 31.14 of the Civil Procedure Rules.

We confirm that 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 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 your Defence.

As you will be aware a claim was issued in this matter on or around 19 May 2015 and we are in receipt of your Acknowledgement of Service and note your intention to file a defence.

We recommend you seek independent legal advice.

Yours sincerely

Bryan Carter Solicitors"

My deadline is 21 June, what should I do now please?

Thanks

Chris

[saintlyman]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

Further Update

No reply from Lowells as per the s78 request
Stalling reply from Carter as per CPR request

21.06.15 Deadline for my defence - its a Sunday

I have found this letter from previous advice given on the forums. Shall I print it and send - Again, my deadline is Sunday and I now need to consider completing my defence forms.

2 Questions.

1) Shall I send this?

Your name
Your address
Your postcode

Date

Claimants name
Claimants address
Claimants postcode


Dear Sirs,

Claim No: xxxxxxx
Claimant v Defendant

Request for documents mentioned in a statement of case under CPR 31.14

Thank you for your response to my request for disclosure of documents mentioned in your statement of case under CPR 31.14.

With regards to your assertion that ''we confirm this matter will most properly be allocated to the small claim track as this is a simple contractual matter and part 31 of the civil procedure rules will therefore not apply.'' I am afraid I must disagree, the case has not been allocated to a track for determination and as a consequence the provisions of CPR 27(2) have no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

I am unable to lodge my defence and/or counterclaim at this moment as I have no information regarding the alleged debt. If you require more time in which to comply with this request you must tell me in writing and state a date by when you will comply with this request. In addition I require a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unwilling to comply with my request for specific disclosure please inform me and I will consider entering an application to the court to obtain such.

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

I look forward to hearing from you within the next 7 days.

Yours sincerely

Your Name

2) How do start my defence, as I think they will ignore me so as to put me past the deadline? I still feel that all of the debt is from bank charges, PPI and interest and further charges added as a result of these.

Thanks

Chris

[FlamingParrot]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

OK, send the letter above, just to round up the process. From experience we know Mr Carter won't send anything but you will be able to show you've done what you can to get hold of the documents.

No need to chase Lowell for the CCA request as non-compliance is a bar to enforcement. :thumb:

With regards to your defence, you will find an example generic defence based around not having received documents here: http://www.legalbeagles.info/forums/...t-Court-Claims

Regardless what Mr Carter says or does, you need to file a defence before the deadline, otherwise they will be able to request default judgment. :scared:

[saintlyman]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

Hello again

CPR reminder dated 16 june 2015, send out recorded deliver 17 June 2015.

Turning now to the defence.

1) Can I post electronically? if so, should I wait until SUNDAY 21 to file? (To allow for post from lowers/Carter)
Or do I need to fill in and file at my local court?

2) This is what I have completed for my defence. Can you please cast your eye over it. Anything in bold is what I have inserted. the non bold stuff is verbatim from the link you provided.
or
Should I attempt the longer defence form?

Thanks again

Chris

IN THE NORTHAMPTON COUNTY COURT (CCBC)

CASE NO;

BETWEEN
LOWELL PORTFOLIO I LTD

CLAIMANT

AND
ME

DEFENDANT

-----------------------------------------------------------------------------------------------
1: I received the claim [Claim Number] from the NORTHAMPTON County Court on 25 MAY 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 CREDIT CARD agreement regulated under the Consumer Credit Act 1974.


4: The Claimants 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 Claimants statement of case states that the account was assigned from CAPITAL ONE to LOWELL PORTFOLIO I LTD on 28/07/2014. The Defendant does not recall receiving notice of this assignment.


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.


8: On the 10 JUNE 2015 I sent a request for inspection of documents mentioned in the claimants 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 10 JUNE 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.


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.


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 Claimants 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 Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear 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 .................................................. ....

[saintlyman]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

UPDATE

In the post today, another Bryan Carter letter slightly amended from the previous (In capitals and bold)

"We thank you for your letter of 16 June 2015 requesting disclosure under Part 31.14 of the Civil Procedure Rules.

We confirm that 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.

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 your Defence.

As you will be aware a claim was issued in this matter on or around 19 May 2015 and we are in receipt of your Acknowledgement of Service and note your intention to file a defence.

We recommend you seek independent legal advise (sic).

Yours sincerely

Bryan Carter Solicitors"

[FlamingParrot]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

UPDATE

In the post today, another Bryan Carter letter slightly amended from the previous (In capitals and bold)

"We thank you for your letter of 16 June 2015 requesting disclosure under Part 31.14 of the Civil Procedure Rules.

We confirm that 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.

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 your Defence.

As you will be aware a claim was issued in this matter on or around 19 May 2015 and we are in receipt of your Acknowledgement of Service and note your intention to file a defence.

We recommend you seek independent legal advise (sic).

Yours sincerely

Bryan Carter Solicitors"

That's just another copy of Mr Carter's bog standard template response to ALL requests sent to him. No need to respond to that letter, just file the generic defence based around receiving no documents as above.

I realise you highlighted the items you filled in, however, before submitting it, the highlighted items should just be left as normal text, i.e. not bold or all in caps.

You should be able to file the defence online, on the MCOL website where you acknowledged the claim. :typing:

With regards to the DN, it's fine to leave that if you never received one, however, if you did, you may just want to say that they are required to prove that they sent a compliant one.

[saintlyman]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

Ah well

Its filed, Saturday 20th, ahead of the Sunday 21st deadline. Unless of course weekends aren't taken into account....

Thanks for your help Flaming Parrot, lets see what happens next.

Have a super weekend everyone.

Chris

[saintlyman]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

Oops, got rid of bold and highlights but left capitals in. Cant change it now. Ah well

[saintlyman]

Re: Bryan Carter, Lowells Portfolio and Capital One. County Court Litigation issued.

Hello Again

Ive not heard anything from the courts, Ive even checked on line a few times on the money claim service and nothing appears there, nor on my credit files. It seems to have taken a long time. Is this normal?

But yesterday (15 July 2015) I received a letter from Bryan Carter dated 13 July.

" Dear Me

We are writing to formally confirm our Client's intention to proceed with this matter.

We will send notification to the court shortly but before we do so our Client is prepared to enter into negotiations to try and achieve a solution whereby both parties avoid further costs and expenses, and if necessary to mediate. The Court encourages this type of mediation between the parties.

Please contact our helpful team on 0345 8396166 to discuss how we can come to an arrangement by consent.

We recommend you seek independent legal advice.

We look forward to hearing from you.

Yours sincerely

Bryan Carter Solicitors"


Is this a stalling letter? A trick? Do they know something I don't know? Do they think they will loose in court so they are trying to get a deal beforehand?

Any ideas anyone?

Thanks

Chris