Court Claim - lowell portfolio / 3 mobile - 29-6-2015

[ocdman]

Received a claim? Yes
Issue Date: 29-6-2015
Amount approx: £583
Claimant: lowell portfolio
Solicitor: B.W. Legal
Original Credit: 3 mobile

Particulars of Claim:
The claimants claim is for the sum of £583.27 being monies due from the defendant under a telecommunications agreement regulated by the the consumer credit act 1974 between the defendant and three mobile. Under account reference 9309061787 and assigned to the claimant on 7/3/2011 notice of which has been given to the defendant. The defedant failed to maintain the contractual payment under the terms of the agreement and a default notice has been served and complied with. The claim also includes statuary interest pursuant to section 69 of the county courts act 1984 at a rate of 8% per annum

Stat Barred? Yes

Have sent:

Other Info:
Because of mental health issues and also physical issues I receive income based ESA and
lower rate DLA and Lower rate mobility. I have been on these benefits since Feb 2009. My last payment to this 3 mobile account was on 30/3/2009 and because of the mental health issues I have been unable to deal with this until receiving this county court claim on 1/7/2015.(issue date 29/6.2015) I have read a few threads about similar things on this forum and have decided to defend this on statute barred so I telephoned B.W. legal yesterday who told me last payment was 30/3/2009 but they are saying the relevent date is their default date on the account which is 29/8/2009. I know nothing about this default date so I have sent a "prove it " letter quoting the limitation act and informing them I have not paid or acknowledged this account since 30/3/2009 also saying a default date of 5 months after my last payment seems improper, asking them for my original agreement and proof of what they intend to rely on that would mean the court would accept this 5 month delay .
My financial situation is dire and the situation regarding my health will only get worse . I live in a council flat so there is nothing for them to claw back ect

So as things stand I will fill in court forms as a defence as per above. Am I doing this correctly ? What happens if the court thinks BW legal are in the right how do I repay if I cant afford to ?

[nemesis45]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Hi Welcome to LB,

The status of the debt statute barred or not may depend on the terms of the contract, but my feeling is that the date of the last payment + 1month started the clock ticking on the 6 year period
Have you acknowledged service of the claim, if not do so @ MCOL (money claim online) and state intention to defend the claim.

Send a CCA Request Direct to Lowell as the particulars of claim states" a telecommunications agreement regulated by CCA 1974".

There is a £1 statutory fee for this, use a cheque or postal order endorsed for " For Statutory Fee Only" Lowell has 12 + 2 Working Days to comply.

Next a request made under Civil Procedure Rule 31.14 (no fee) to BW Legal this is a request for the documents mentioned in the POC,
i.e. The Notice of assignment, the Default Notice & The Regulated Agreement.

There are templates in the forum library for both requests.

As to paying if this claim progresses to a judgement a court will not order you to pay any amount you cannot reasonably afford to pay.

Has Lowell been in contact previously? Or is this claim the first contact made by them?
As to the default, yes it is a long time from last payment to default, did 3 mobile continue
to contact you during that 5 month period? The Information Commissioners Office says defaults
should be placed within 6 months of the cause of action.

Please don't let this affect your health there plenty of help and support for you here!!

nem

[ocdman]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Thank you nemesis for your reply, after reading posts and advice given to other people on this site I am a bit confused as to what is the purpose of asking for these things from Lowell by way of a cca request and a request to BW legal under rule 31.14 ? I have made my mind up to defend this on time bared and go to court because thats what I believe for the other reasons you mentioned I.e the clock should start ticking a month after last payment. Lets say I just defend it on that basis and turn up at court without asking for these things surely the Judge would have them anyway and he or she would know the validity of the claim ? I only ask because because my feeling after speaking to Bw legal is they are chancers and I have nothing to loose or gain either way win or loose because of my situation ie if its enforceable then so be it ! Its not as if i want to get credit worthy again because my life has shrunk so much and as you say repayments for them would be like getting blood out of a stone. These reasons and also it seems after reading other posts about lowel and Bw legal that the stress of asking for these things I could do without and going back to well if they are correct in their position the court will know ?

Anyway thats the plan for now lol. I replied to the court action today online saying I was going to defend it and I have received their service etc so i have another 28 days. Im really not sure who wrote to me about what and when in this matter as letters got binned because up until this court action I couldnt deal with things.

My plan could change depending on any further advice. Thanks again.

[nemesis45]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Statute Barred is a complete defence But be aware of the tendency
of debt purchasers to find mystery one off payments that have prevented
the debt becoming statute barred.

The judge will most certainly not know the validity of the claim or the validity of your defence
it is upon argument of these point that judgement will be made, if you wish to go into court
without back up to the SB claim it is of course your choice.

You are right these people are chancers so YOU need to be prepared for every eventuality.

nem

[FlamingParrot]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Thank you nemesis for your reply, after reading posts and advice given to other people on this site I am a bit confused as to what is the purpose of asking for these things from Lowell by way of a cca request and a request to BW legal under rule 31.14 ? I have made my mind up to defend this on time bared and go to court because thats what I believe for the other reasons you mentioned

If this was a mobile contract, then the CCA request would not apply, even when Lowell describe it as a 'telecoms agreement regulated by the Consumer Credit Act', their litigation clerks are probably grossly overworked, underqualified and underpaid so they just fill in the blanks blindly. However, you can ask for a copy of the original contract on your CPR request.

It is always a good idea to send the request if only to have a back-up plan in case it turns out not to be SBd for some reason. :thumb:

Received a claim? Yes
Issue Date: 29-6-2015
Amount approx: £583
Claimant: lowell portfolio
Solicitor: B.W. Legal
Original Credit: 3 mobile

Particulars of Claim:
The claimants claim is for the sum of £583.27 being monies due from the defendant under a telecommunications agreement regulated by the the consumer credit act 1974 between the defendant and three mobile. Under account reference 9309061787 and assigned to the claimant on 7/3/2011 notice of which has been given to the defendant. The defedant failed to maintain the contractual payment under the terms of the agreement and a default notice has been served and complied with. The claim also includes statuary interest pursuant to section 69 of the county courts act 1984 at a rate of 8% per annum

[nemesis45]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

There is every need to request the agreement specifically as mentioned in the POC to
ignore is would be foolish!! If Lowell make mistakes make them pay for it!!
One does not simply state that litigation clerks are overworked/lost the plot etc.
take advantage of every mistake the claimant makes they will make the most of an slip
up a defendant makes.
Don't be distracted by nit pickers!!

nem

[ocdman]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Thank you nemesis and flaming parrot, im debating to myself what to do, if sending a cca request was easy and I could to it online and pay by paypal then id do it . I dont have a cheque book and a postal order for a pound with a letter photocopied and sent registered is sort of putting me off because of the effort involved. On the other hand ..... yes its a good idea.

The other request to bw legal under the cpr 31.14 is easy and Ill do that for sure.

Are telecoms agreements not covered by the cca act ? If they are not cant I just go to court like Judge John Deed or the like and tell the Judge to throw the case out ?

Ill let you know what happens.

[nemesis45]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Thank you nemesis and flaming parrot, im debating to myself what to do, if sending a cca request was easy and I could to it online and pay by paypal then id do it . I dont have a cheque book and a postal order for a pound with a letter photocopied and sent registered is sort of putting me off because of the effort involved. On the other hand ..... yes its a good idea.

The other request to bw legal under the cpr 31.14 is easy and Ill do that for sure.

Are telecoms agreements not covered by the cca act ? If they are not cant I just go to court like Judge John Deed or the like and tell the Judge to throw the case out ?

Ill let you know what happens.

The claimant claims that there is an agreement regulated by CCA 1974 so you have a right to have sight of it
as It is the crux of their claim.

The " effort" of getting a PO is well worth it.

nem

[FlamingParrot]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Thank you nemesis and flaming parrot, im debating to myself what to do, if sending a cca request was easy and I could to it online and pay by paypal then id do it . I dont have a cheque book and a postal order for a pound with a letter photocopied and sent registered is sort of putting me off because of the effort involved. On the other hand ..... yes its a good idea.

The other request to bw legal under the cpr 31.14 is easy and Ill do that for sure.

Are telecoms agreements not covered by the cca act ?

Mobile contracts are service contracts, not credit agreements as you are not borrowing money as such.

If they are not cant I just go to court like Judge John Deed or the like and tell the Judge to throw the case out ?

Ill let you know what happens.

No, because the courts are not restricted to dealing with contracts regulated by the CCA, they can deal with claims for any kind of contracts, regulated or not. For example if I offer someone a service and they agree to pay me a certain amount and they don't pay my invoice, I could issue a claim.

[nemesis45]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Some mobile contract now do have a CCA1974 regulated agreement, providers will now and have for some
considerable time a 2 part agreement/contract in which the buyer has a service provision contract and a
regulated credit agreement for the purchase of a telephone instrument.

Before anyone one decries this may I point out I have such a contract.

nem

[ocdman]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Right thats my cpr request to Bw legal of as per the template here. I asked for true copies as I had read something on that being good to do recently. Just now whilst searching for more info I came across a judgement by a judge waksman and if im reading that correctly it means that creditors dont need even a true copy they can provide other methods of proof . Is that right ?

[nemesis45]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Right thats my cpr request to Bw legal of as per the template here. I asked for true copies as I had read something on that being good to do recently. Just now whilst searching for more info I came across a judgement by a judge waksman and if im reading that correctly it means that creditors dont need even a true copy they can provide other methods of proof . Is that right ?

Waksman refers to " reconstituted " agreements which must contain the following elements:
1. The debtors name and address as it was when the account was opened.

2. The Creditors name and address when the account was opened.

3. All the terms & Conditions relevant when the account was opened.

3. " " " "when the account was closed.

4. Any material amendments made to the T's & C's made during the life of the agreement.

5. Any other document (s) mentioned in the T's & C's.

A current statement of the account should also be provided.

nem

[FlamingParrot]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

Right thats my cpr request to Bw legal of as per the template here. I asked for true copies as I had read something on that being good to do recently. Just now whilst searching for more info I came across a judgement by a judge waksman and if im reading that correctly it means that creditors dont need even a true copy they can provide other methods of proof . Is that right ?

You must be referring to Carey v HSBC, where the judge in question stated that a reconstituted version of the agreement would satisfy a CCA request. The judgment itself is rather long but the summary of the judgment sets out what should be an acceptable response to a CCA request. This judgment referred to a credit card where Emma Carey, amongst others, was the claimant rather than the defendant.

The following is a brief summary of the principal findings and conclusions set out above:

(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;

(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;

(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;

(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

(5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;

(6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;

(7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;

[ocdman]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

sounds like the reconstituted stuff would be more effort needed from them than just finding the original. Im going to get the cca request of as well to lowell. The way I see it is that the more pressure i can put on them the better and It would be better to have it sent of so the Judge has less of a chance to rule against me. Having said that it all sounds like its a game of bluff and tricks with these companys preying on us underdogs.

Sites like this as a godsend

[nemesis45]

Re: Court Claim - lowell portfolio / 3 mobile - 29-6-2015

sounds like the reconstituted stuff would be more effort needed from them than just finding the original. Im going to get the cca request of as well to lowell. The way I see it is that the more pressure i can put on them the better and It would be better to have it sent of so the Judge has less of a chance to rule against me. Having said that it all sounds like its a game of bluff and tricks with these companys preying on us underdogs.

Sites like this as a godsend

If an "actual" copy of the original agreement is not available the use of recons is a way of complying with an CCA request. I would be down finally to a court to decide If a recon is sufficient to enforce the debt.

nem