Lowell / BW Legal v User4327

[User4327]

Re: Lowell / BW Legal v User4327

With respect to evidence to support my defence, should I simply refer to all the letters/correspondence with BW Legal and supply copies of them with my defence?

[FlamingParrot]

Re: Lowell / BW Legal v User4327

Thank youFlamingParrot.

My thoughts re the ocerdraft is that I wouldn't admit or deny it, (i.e. notcommit either way) until they provide evidence of the account.

My worry was that if I admit I had the account, and then if they prove it isnot Statute Barred I will be liable for the charges etc.

For the purpose of limitation, the clock stopped when the claim was issued so it doesn't make any difference. If it was SBd at the time then it's an absolute defence, it not then it would make no difference. The charges were applied to your account years ago.

I do notknow the full extent of charges applied by the bank, whilst I know the overdraft was £200, I’m not sure what charges have been applied by the bank and what by debt companies etc since.
Part of the defence states the amount of charges, should I just assume this is the difference between the £200 and total amount of claim?

Yes, it the O/D limit was just £200, the bank wouldn't/shouldn't have allowed you to go over it, i.e. they wouldn't have paid any direct debits and would have declined debit card transactions, however, they'd still apply their own charges to the account. The charges would have been applied by the bank itself.

Also, isit worth argueing in my defence that this was a time of financial difficulty (Iwas a Student and had no income) and therefore the charges were unfair, could Iquote the case described in the link below as precedent?
http://www.moneysavingexpert.com/news/reclaim/2014/09/moneysaver-wins-bank-charges-court-case
Is it worth mentioning in the defence that Iwas a student at the time and away from my home address? For the above reasonsor any other?

You could mention it where you mention the charges. :thumb:

[FlamingParrot]

Re: Lowell / BW Legal v User4327

With respect to evidence to support my defence, should I simply refer to all the letters/correspondence with BW Legal and supply copies of them with my defence?

Your defence is just references to all the correspondence you sent requesting documents, there is no need to attach them at this stage as you'll be filing it online on the MCOL site where you can just copy and paste text into the box. :typing: Once you've filed it, if BW Legal decide to proceed with the claim and it reaches the stage where a hearing is scheduled, the court will give directions to both sides to supply the evidence they intend to rely on. For their side it would be the documents you've alluded to, on your side it would be all the correspondence you mention, which should be attached to your witness statement as exhibits, but that comes much later.

[User4327]

Re: Lowell / BW Legal v User4327

Sorry I've not given an update for a while, I have been very busy.

Just to make you aware,

- I submitted my defence on 15th September 2015.

To summarise the defence was on the following basis:

1) The claimants statement of case fails to give enough information to enable me to properly state my case, and they HAVE NOT provided any of the documentation requested.
2) The claim is statute barred.
3) The bulk of the debt is made up from unfair and excessive overdraft charges applied at a time of severe financial dfiifculty due to Lloyds reducing the O/D limit to 0.

- The court sent the defence to the claimant and has asked if they wish to proceed

- BW Legal sent a letter dated 12/10/2015 notifying me they INTEND TO PROCEED AND also sent the documents requested in the CPR request. Unfortunately these documents imply the debt is not statute barred.

- At the same time BW legal have sent me a separate letter offering a 20% discount on the debt, reducing it to approximately £1100. (I have until September 26th to respond to this).

- I have also received a DQ from the court which I must return to the court and serve on the claimant by the 30th October.

I'm not sure what the best way to proceed is, I can fill in the DQ sent by the court and send it off, but where do I stand with BW Legal providing the supporting documentation? I assume I can no longer rely on the statute barred defence. Do you think it's still possible to fight this and win OR at least have the debt reduced to the original overdraft amount?

With respect to BW Legal providing the documentation, can I argue that they didn't provide this in time? Also, in one of their letters they stated that the last payment was made into the account on XXX date; this would suggest they had the statement of account in their possession at that time but have not provided it to me as requested (CPR Request), or they had no documentation in their possession but have since received it as an indirect result of my DSAR request to the bank. - Either way surely this is an abuse of process, can I argue this in my defence/court?

Should I tick the DQ form for mediation? (I assume yes)

Any advice would be much appreciated.

Thank you.

User 4327

[FlamingParrot]

Re: Lowell / BW Legal v User4327

Sorry I've not given an update for a while, I have been very busy.

Just to make you aware,

- I submitted my defence on 15th September 2015.

To summarise the defence was on the following basis:

1) The claimants statement of case fails to give enough information to enable me to properly state my case, and they HAVE NOT provided any of the documentation requested.
2) The claim is statute barred.
3) The bulk of the debt is made up from unfair and excessive overdraft charges applied at a time of severe financial dfiifculty due to Lloyds reducing the O/D limit to 0.

- The court sent the defence to the claimant and has asked if they wish to proceed

- BW Legal sent a letter dated 12/10/2015 notifying me they INTEND TO PROCEED AND also sent the documents requested in the CPR request. Unfortunately these documents imply the debt is not statute barred.

What documents were they? Assuming this was an overdraft, then there would be no CCA or even a default notice. :mmph: Did they supply you with the notice of assignment? What have they supplied to show it's not statute barred?

- At the same time BW legal have sent me a separate letter offering a 20% discount on the debt, reducing it to approximately £1100. (I have until September 26th to respond to this).

You mean October 26th?

- I have also received a DQ from the court which I must return to the court and serve on the claimant by the 30th October.

I'm not sure what the best way to proceed is, I can fill in the DQ sent by the court and send it off, but where do I stand with BW Legal providing the supporting documentation? I assume I can no longer rely on the statute barred defence. Do you think it's still possible to fight this and win OR at least have the debt reduced to the original overdraft amount?

With respect to BW Legal providing the documentation, can I argue that they didn't provide this in time?

Not really. Now they've provided the documents, they have to be assessed on their own merits.

Also, in one of their letters they stated that the last payment was made into the account on XXX date; this would suggest they had the statement of account in their possession at that time but have not provided it to me as requested (CPR Request), or they had no documentation in their possession but have since received it as an indirect result of my DSAR request to the bank. - Either way surely this is an abuse of process, can I argue this in my defence/court?

Debt purchasers buy debts in bulk without any paperwork and have to go back to the bank to get the documents so they wouldn't have had them earlier. Although in theory they should have them before issuing a claim, it's not an abuse of process as such, otherwise 99.9% of the claims we see on here would be dismissed on those basis. :ohwell:

I'm not sure what the best way to proceed is, I can fill in the DQ sent by the court and send it off, but where do I stand with BW Legal providing the supporting documentation? I assume I can no longer rely on the statute barred defence. Do you think it's still possible to fight this and win OR at least have the debt reduced to the original overdraft amount?

If the statements you've received show real payments that you actually made (as opposed to adjustments, refunds or phantom payments) in the last six years meaning the account is not really SBd, then mediation could be an opportunity to arrange a reduce settlement.

Should I tick the DQ form for mediation? (I assume yes)

[User4327]

Re: Lowell / BW Legal v User4327

Hi, sorry for not posting for a while... just a quick update;

The dispute has now been assigned to a local court and I have been given a court date and at the same time BW Legal were ordered to provide the documents requested including the agreement - which they have now done along with their witness statement.

In addition to this the court have said that by "26th January the Defendent is to file with the court office any amended defence" (I don't have much time left to do this, but I should be able to meet the deadline).

In the mean time, I submitted a full and final settlement offer to Lowell along with a cheque which they cashed. So I intend to submit a defence on the basis of this and that the charges were unfair and excessive and they wouldn't have been incurred had Lloyds acted in a reasonable manner and not reduced the authorised overdraft limit.

Q. When I submit an amended defence do I need to provide supporting documentation/evidence or can this be done at a later stage with Witness Statements?

Regards,

User4327

[Amethyst]

Re: Lowell / BW Legal v User4327

The full and final settlement - did you just send them a cheque ? what did you say with it ?

You could have spoken to them and arranged this as a final settlement of the court proceedings under a Tomlin/consent order which would have bought an end to the issues.

So at the moment you have paid the actual 'overdraft' spend ? and are left just arguing that the charges were unfair ? That's quite a hefty argument ( have you read Foster-Burnell v Lloyds at all ? )

[nemesis45]

Re: Lowell / BW Legal v User4327

Hi, sorry for not posting for a while... just a quick update;

The dispute has now been assigned to a local court and I have been given a court date and at the same time BW Legal were ordered to provide the documents requested including the agreement - which they have now done along with their witness statement.

In addition to this the court have said that by "26th January the Defendent is to file with the court office any amended defence" (I don't have much time left to do this, but I should be able to meet the deadline).

In the mean time, I submitted a full and final settlement offer to Lowell along with a cheque which they cashed. So I intend to submit a defence on the basis of this and that the charges were unfair and excessive and they wouldn't have been incurred had Lloyds acted in a reasonable manner and not reduced the authorised overdraft limit.

Q. When I submit an amended defence do I need to provide supporting documentation/evidence or can this be done at a later stage with Witness Statements?

Regards,

User4327

Did you get Lowell's written agreement to the full and final settlement?

If not Lowell could ( as they have in the past ) just treat your payment as an unconditional
payment and continue to pursue the remaining balance.
The charges are not Lowell's problem they acquired the debt with those charges in place
any dispute regarding the charges levied by the original creditor should be raised with them
not Lowell.
This payment is now obviously an admission of liability as well.

I hope my fears don't become fact!

nem

[User4327]

Re: Lowell / BW Legal v User4327

In the full and final settlement letter I stated that;

"I do not admit liability for any of the monies outstanding, however with a view to resolving this dispute amicably and without the need for mediation or a court hearing, as a gesture of good will I enclose a cheque for full and final settlement with a value of £200".

I have read the Foster-Burnell v Lloyds case and I intend to quote this as precedent. Moreover had Lloyds not reduced the overdraft I would not have incurred any charges and monies paid previously (to Lloyds) would have covered the debt.

[/quote]
The charges are not Lowell's problem they acquired the debt with those charges in place
any dispute regarding the charges levied by the original creditor should be raised with them
not Lowell
[/end]

Based on this should I consider negotiating with BW Legal for the full balance and submit a separate claim against Lloyds for the charges?

Regards,

User 4327

[nemesis45]

Re: Lowell / BW Legal v User4327

In the full and final settlement letter I stated that;

"I do not admit liability for any of the monies outstanding, however with a view to resolving this dispute amicably and without the need for mediation or a court hearing, as a gesture of good will I enclose a cheque for full and final settlement with a value of £200".

I have read the Foster-Burnell v Lloyds case and I intend to quote this as precedent. Moreover had Lloyds not reduced the overdraft I would not have incurred any charges and monies paid previously (to Lloyds) would have covered the debt.

The charges are not Lowell's problem they acquired the debt with those charges in place
any dispute regarding the charges levied by the original creditor should be raised with them
not Lowell
[/end]

Lloyds I suspect just say that they have sold the debt " hard luck".

A very Important Point NEVER send payments before you have written agreement that
the off has been accepted.
Any such payment can just be applied to the account and Lowell will continue to press
for payment or issue a claim for the balance.

If for instance you have a debt for £2000.00 offer 10 - 15% of the total outstanding balance.
Giving room for negotiation

The letter I have used is as follows.

Full and Final Settlement Offer.

I am willing to make an offer in full and final settlement in regard to the alleged debt for £xxxx.xx.

This offer of £xxx.00 is made as a gesture of goodwill and without any admission of liability and is
conditional upon the following.

1, Any remaining balance is not at anytime to be sold or assigned for collection to any 3rd party.

2.Credit reference file are to be marked as partially satisfied.

3. No payment will be made until I receive written acknowledgment that the offer is acceptable.

4. Payment is to be made within 7 days of receipt of your written acceptance.

The letter should be address to a senior manager/director of the creditor.

nem

[User4327]

Re: Lowell / BW Legal v User4327

Thank you for the replies.

Unofrtunately however, I have already sent the the full and final settlement letter and they have already cashed the cheque.

I must prepare an amended defence (before Monday) - even if I ultimately speak to BW Legal/Llowel and settle the issue, I must submit this defence otherwise I will lose automatically and my negotiating position will be 0.

With respect the amended defence, do I need to submit it with supporting documentation? Or can I simply re-write my defence and submit as I did my original defence (and prepare witness statements and supporting documentation at a later stage), also should I include a chronological order of events as I did with my original defence and/or refer to my original defence?

Regards,

User 4327

[Amethyst]

Re: Lowell / BW Legal v User4327

Well, what is done is done.

"I do not admit liability for any of the monies outstanding, however with a view to resolving this dispute amicably and without the need for mediation or a court hearing, as a gesture of good will I enclose a cheque for full and final settlement with a value of £200".

You did state that the cheque was in full and final settlement however it was for a small amount in proportion and you didn't state that cashing the cheque would mean acceptance of your offer in full and final. The full claim is for £1400 - how much of that would you say is charges/interest ? They will just have taken it in part payment ( hopefully ) and any judgment should be £200 lower because of it. You could negotiate with them further but you must get any agreement in writing and a consent order drawn up to keep the claim on hold while you make the agreed payments BEFORE paying them anything further. It would be 'easier' to defend against the charges than to make a claim later against Lloyds. Maybe use the arguments you have together on the charges ref Foster-Burnell and see if that encourages them to accept a settlement under a tomlin order.

[User4327]

Re: Lowell / BW Legal v User4327

Thanks for you advice.

I will submit a defence accordingly.

Do I need to submit supporting documents with the amended defence or should these be submitted at a later stage with witness statements?

Regards,

User4327

[Amethyst]

Re: Lowell / BW Legal v User4327

No they come later with witness statements.

Do the agreements and statements they have sent evidence their claim fully ?

Notice of assignment ? default notice ? Have they sent those, if not mention it.

[User4327]

Re: Lowell / BW Legal v User4327

At first pass I think they have provided all relevant documents. I will read through and check again before finalising my defence though.

In the notice of allocation letter, the court ordered that the claimant 'file and serve the documents allegedly giving rise to the claim, including the Financial Services Agreement relating to account number XXXXX".

What specifically does this include? They have provided a signed document showing me opening the account and accompanying terms and conditions document - does this fulfil this order?

Regards,

User 4327