Court Claim - lowell / home retail group - 1-7-2015

[jon1965]

Re: Court Claim - lowell / home retail group - 1-7-2015

Hi
Here are some example defences based on not having received documents which is what I think you have said

http://www.legalbeagles.info/forums/...t-Court-Claims

The whole POC are very vague , no date of agreement or default. I am not really sure how you are supposed to have access to justice unless they can produce the documents , hence the basis of your defence

[FlamingParrot]

Re: Court Claim - lowell / home retail group - 1-7-2015

Hi There Flaming Parrot

I would now welcome some help with my defence as mentioned above all letters and follow up letters have been sent recorded delivery and been received by both lowell and Bryan Carter. As of yet neither have supplied any documentation asked for. I Have checked my credit file on Equifax and it shows that the amount being claimed by Lowells is a credit card which was started in 2004 .It shows a default notice was served in august 2010 it shows no payments have been made on the account but it only goes back to January 2010. It dosent tell me who the original creditor was So basically I am unsure who the original creditor is although someone earlier suggested home retail could be argos.

Argos or Homebase: https://www.homeretailgroup.com/about-us/

Im also unsure if the debt if it is indeed mine is statue barred. Can you tell me if I can use both statue barred as my defence as well as unenforceable due to non supply of docs and have you a template to set it all out so I don't shoot myself in the foot Then clock is ticking on me know so I would appreciate some help asap many thanks Teeder

This is an example defence that combines both SBd and lack of documents: http://www.legalbeagles.info/forums/...011#post494011. However, if the debt is not yours, then you can't really say it's SBd as you wouldn't know when the last payment or acknowledgement was made on someone else's debt. If it corresponds to an amount on your credit file then it's probably yours. A default notice would have been sent a couple of months or so after you stopped paying, You'd need to have made no payments since more than a year earlier than August 2010.

[teeder]

Re: Court Claim - lowell / home retail group - 1-7-2015

Good morning,
For clarification please.

1. Have you received the agreement yet?

2. Have you had a response to the CPR 31.41 request.

3. You say a default notice was served in 2010, a DN is not a default, does your credit file have a red D showing.

4. What is the default date?

5. Statute barred in England & Wales = 6 clear years no payments ( to any party) and no unequivocal written acknowledgment of the debt.

The 6 year clock for a store card starts when a contractual payment was due and not made, after which no further payment or written acknowledgement was ever made.

If can just answer the points above we can assist with your defence ( dates as accurate as possible please)

nem

Hi Nemisis
No we have had nothing from lowells regarding the credit agreement .However we know they have received the request
Bryan carter has responded to our cpr 31.14 request with his usual letters and we have responded with the follow up letters.today we have received another letter from bryan carter which mirrors his previous response.
the default notice on my Equifax statement shows a default date of 22/8/2010 however the particulars of the claim do not mention the date of default just that one was served
the particulars of the claim also state that lowells were assigned the debt on 9/7/2014
my credit report shows that the home retail group credit card was started on the 14th /11/2004
My Belief is that the home retail group is Argos so I contacted Argos Today and they told me they have no records of the account both in my name or the account number quoted however the lady did say that they only keep records for 6 years So if this account did not originate fron Argos the I don't have a clue who it is Hope this info helps Looking forward to hearing from you and any help would be greatly appreciated

[nemesis45]

Re: Court Claim - lowell / home retail group - 1-7-2015

Hi Nemisis
No we have had nothing from lowells regarding the credit agreement .However we know they have received the request
Bryan carter has responded to our cpr 31.14 request with his usual letters and we have responded with the follow up letters.today we have received another letter from bryan carter which mirrors his previous response.
the default notice on my Equifax statement shows a default date of 22/8/2010 however the particulars of the claim do not mention the date of default just that one was served
the particulars of the claim also state that lowells were assigned the debt on 9/7/2014
my credit report shows that the home retail group credit card was started on the 14th /11/2004
My Belief is that the home retail group is Argos so I contacted Argos Today and they told me they have no records of the account both in my name or the account number quoted however the lady did say that they only keep records for 6 years So if this account did not originate fron Argos the I don't have a clue who it is Hope this info helps Looking forward to hearing from you and any help would be greatly appreciated

Hi Teder,

Well if Argos only keep records for 6 years that should be six years from the date the account was closed, so with a default date of 22/08/10 it should still be on their files imo.

Could this be one of the catalogue companies in the Shop Direct Group?

nem

[teeder]

Re: Court Claim - lowell / home retail group - 1-7-2015

Hi Teder,

Well if Argos only keep records for 6 years that should be six years from the date the account was closed, so with a default date of 22/08/10 it should still be on their files imo.



Could this be one of the catalogue companies in the Shop Direct Group?

nem

If it was a catalogue would it be an agreement regulated by the consumer credit act as stated in the particulars of the claim

[nemesis45]

Re: Court Claim - lowell / home retail group - 1-7-2015

If it was a catalogue would it be an agreement regulated by the consumer credit act as stated in the particulars of the claim

Yes the process has been that once you have placed and had an order accepted you are entered into a credit agreement.

nem

[teeder]

Re: Court Claim - lowell / home retail group - 1-7-2015

Yes the process has been that once you have placed and had an order accepted you are entered into a credit agreement.

nem

Hi Nemisis
would I be right then in thinking my defence is failure to provide docs as requested to prove who the debt was originally with failure to provide the credit agreement failure to provide proof of assignment failure to provide default notice and failure to provide a statement of accounts showing how the debt figure was arrived at because from what you have said at this moment in time without a statement of accounts we have no idea when the last payment was made if any.
R

[Roland]

Re: Court Claim - lowell / home retail group - 1-7-2015

Yes the process has been that once you have placed and had an order accepted you are entered into a credit agreement.

nem

This is not my understanding. As far as the Consumer Credit Act is concerned. All agreements of a commercial nature must be regulated. In order to be so the agreement must be reduced to writing, contain all prescribed terms of the bargain, and be signed by both parties.
If it is not, then it is not properly executed and may not be an enforceable agreement. Has something changed ?

[nemesis45]

Re: Court Claim - lowell / home retail group - 1-7-2015

Hi Nemisis
would I be right then in thinking my defence is failure to provide docs as requested to prove who the debt was originally with failure to provide the credit agreement failure to provide proof of assignment failure to provide default notice and failure to provide a statement of accounts showing how the debt figure was arrived at because from what you have said at this moment in time without a statement of accounts we have no idea when the last payment was made if any.
R

Hi R, The CCA request if not complied with within the 12 +2 Working Days time scale renders the debt unenforceable until the agreement has been provided,. Lack of a " compliant DN" is an argument in your favour if the DN for example did not give you sufficient time to remedy the account, or the default sum was not only arrears or was made up solely of charges without which the account would not have been defaulted.
A statement of account provided with a CCA request only provides a " current" statement of the account not an historical one, anything more would have to be obtained via a Subject Access Request made under the Data Protection Act 1998.
Enquires to the original creditor is the usual way of gaining information on last payment dates or your own banking records.

nem

[nemesis45]

Re: Court Claim - lowell / home retail group - 1-7-2015

This is not my understanding. As far as the Consumer Credit Act is concerned. All agreements of a commercial nature must be regulated. In order to be so the agreement must be reduced to writing, contain all prescribed terms of the bargain, and be signed by both parties.
If it is not, then it is not properly executed and may not be an enforceable agreement. Has something changed ?

The details of the agreement are made available to the " new " customer take a look through any news paper or magazine and you will see advertisements for catalogues some with an application form attached many say on the acceptance of the first order a " Credit Account will be opened for you "That's the real world.

nem

[Roland]

Re: Court Claim - lowell / home retail group - 1-7-2015

The details of the agreement are made available to the " new " customer take a look through any news paper or magazine and you will see advertisements for catalogues some with an application form attached many say on the acceptance of the first order a " Credit Account will be opened for you "That's the real world.

nem

Perhaps. But in the real world the consumer must make a positive affirmation of agreement.
Otherwise everyone would be a party to everything they read.

This is very basic contract law Nem.

- - - Updated - - -

If you want to study the law in the area , the relavant legislature is the distance marketing regulations, these are an addition to the consumer credit act and are on line.

Also the electronic signature regulations which cover the means of a consumer agreeing a contract by remote means.

[Roland]

Re: Court Claim - lowell / home retail group - 1-7-2015

It has long been a bone of contention with catalogue agreements, they undoubtedly provide credit and yet they are not a rolling credit account as per section 10 of the act, in that each transaction is a fixed sum restricted use agreement usually on different terms.

To be fully compliant each item must be individually contracted for, this is why on many occasions when challenged catalogues rarely fight accounts which consist of none interest baring agreements usually up to 52 weeks in most cases, interest baring accounts are slightly different and usually better documented.

[nemesis45]

Re: Court Claim - lowell / home retail group - 1-7-2015

Perhaps. But in the real world the consumer must make a positive affirmation of agreement.
Otherwise everyone would be a party to everything they read.

This is very basic contract law Nem.

- - - Updated - - -

If you want to study the law in the area , the relavant legislature is the distance marketing regulations, these are an addition to the consumer credit act and are on line.

Also the electronic signature regulations which cover the means of a consumer agreeing a contract by remote means.

Roland the real world a tick box " signature" is all that's needed.

No please do not turn this thread in to an off topic discussion that does not help the OP.

nem

[Roland]

Re: Court Claim - lowell / home retail group - 1-7-2015

Yes indeed it is and it is this that the OP will be wanting evidencing, on most catalogue sales this is not required. just telling them that they should not under estimate the importance of a correctly executed agreement when considering her defence.

[FlamingParrot]

Re: Court Claim - lowell / home retail group - 1-7-2015

I haven't done any of the above yet as this has come out of the blue and I have no idea what it is or how to go about finding out .The only debt I can think of as home retail group is with argos but this was over 10 years ago so any help would be much appreciated .Do I need to send the acknowledgment of service to give me more time to prepare the defence

Hi There Flaming Parrot

I would now welcome some help with my defence as mentioned above all letters and follow up letters have been sent recorded delivery and been received by both lowell and Bryan Carter. As of yet neither have supplied any documentation asked for. I Have checked my credit file on Equifax and it shows that the amount being claimed by Lowells is a credit card which was started in 2004 .It shows a default notice was served in august 2010 it shows no payments have been made on the account but it only goes back to January 2010. It dosent tell me who the original creditor was.

the default notice on my Equifax statement shows a default date of 22/8/2010 however the particulars of the claim do not mention the date of default just that one was served
the particulars of the claim also state that lowells were assigned the debt on 9/7/2014
my credit report shows that the home retail group credit card was started on the 14th /11/2004
My Belief is that the home retail group is Argos so I contacted Argos Today and they told me they have no records of the account both in my name or the account number quoted however the lady did say that they only keep records for 6 years So if this account did not originate fron Argos the I don't have a clue who it is Hope this info helps Looking forward to hearing from you and any help would be greatly appreciated

On your first post you say your Argos account was "over 10 years ago", this corresponds with a credit card taken out in 2004 as stated on your credit report. For the purpose of limitation, you'd need at least six years without making payments. The fact Argos have told you they've got no record of your account and they only keep records for six years indicates there has been no account activity in the last six years so I'd say it would be a safe bet to say it's SBd, bearing in mind that he burden of proof is on the CLAIMANT, not you. They would have to provide proof that it isn't, and if Argos hold no records of your account, how are they going to obtain something that doesn't exist? The default date is a bit of a mystery but it's not unusual for them to be wrong, many debt purchasers, Lowell in particular, "update" that date to when they bought the account. This is against the reporting principles but they are a law onto themselves. They may try to argue that the date on your credit report starts the clock for limitation purposes (they've tried it before) but the Limitation Act doesn't say anything about credit reports and they would have to do much better than that to prove a debt is not SBd.

As SBd is an absolute defence, that's even more important than any issues regarding the agreement, however, with an account started before 2005, you should have signed a credit agreement containing all the prescribed terms even if you had applied online for the card. :typing: Merely ordering goods doesn't mean entering into a regulated consumer credit agreement. Many catalogue companies didn't require people to enter into a credit agreement before they sent out the goods which is why the accounts were not enforceable and they often had to admit defeat for that reason. From 2005 onwards, a tick box on the online application would have been equivalent to a signature but we are clear that this was from 2004. The SBd angle also looks rather strong in your case. :thumb: