Lowell / BW Legal v User4327

[FlamingParrot]

Re: Lowell / BW Legal v User4327

Following a request for an extension, I have received a response from BW Legal as a result I have a couple of questions as follows...

They have agreed to an extension of 28 days, however in the next sentence they appear to have put the wrong date on which my defence is due, an excert is shown below;

"We can confirm that our client have no objections to extending the time for filing of your defence for 28 days. Your defence is therefore due 1 September 2015."

The issue date is the 28th July hence these dates do not tie up, is it worth getting clarification before writing to the court re the extension?

The old date would have been the 1st of September, if you add 33 days to July 28th you get August 30th which is a Sunday, followed by BH Monday. So they have agreed to 28 days starting on the 1st of September.

Secondly, in the letter they state "the outstanding balance relates to an overdraft facility [with] Lloyds bank plc" and that the last payment was in February 2010 for an amount of £540. - I do not recall making this payment, however this was a bank account so there may have been a payment from another source that I am either not aware of, or have forgot about. I have checked my other accounts and cannot see any payments of this amount around that time. I will send the SAR request recorded delivery on Monday.

Have they supplied any statements showing that payment? The burden of proof is on the claimant to show proof that a payment was made.

Does this mean the debt is not Statute barred and if so, where does it leave me in terms of defending the claim?
Also please note, whilst they have stated this in the letter they have not provided any evidence of this payment, can I force them to tell me where they've got this information from?

It all depends on whether they can provide enough proof to convince a judge that a payment was actually made, as you will see below, Lowell failed to do that in this case and the judge dismissed their claims that a payment was made:

Yay... time to chalk up another victory for the Beagles!
I just had my hearing where Lowells were represented, nevertheless the judge was not satisfied they had discharged their onus of proof that this matter was not statute barred.
The document they called a statement of account was not accepted as an accurate record, neither was it proved any alleged payment had been made therefore the claim was dismissed.
Grateful thanks to you all... @nemesis45, @FlamingParrot, @MIKE770 and @Kati I couldn't have done this without your help.

:whoo: :whoo: :whoo:

[User4327]

Re: Lowell / BW Legal v User4327

Thanks FlamingParrot.

Just to clarify, their letter states "Your defence is therefore due on or before 1 September 2015"

...I still wasn't sure about this so I have emailed them asking for clarification.

When I have this clarification, where/how can I send the agreement of extension to the court? Do I do this through MCOL?



Regarding the payment they claim occured - They have not supplied any documents showing the alleged payment, nor have they indicated why they believe this to be true. Is it possible for me to ask them on what basis this claim is made and/or force them to disclose the relevant documents?

Regards,

User4327

[FlamingParrot]

Re: Lowell / BW Legal v User4327

Thanks FlamingParrot.

Just to clarify, their letter states "Your defence is therefore due on or before 1 September 2015"

...I still wasn't sure about this so I have emailed them asking for clarification.

When I have this clarification, where/how can I send the agreement of extension to the court? Do I do this through MCOL?

Not through MCOL but you can do it by email as noted here:

To inform the court in writing;


Email something along these lines to ccbcdefendants@hmcts.gsi.gov.uk

SUBJECT: xxxxCLAIMANTxxxx v xxxxDEFENDANTxxxxx CASE NO: XXXXXX - EXTENSION OF TIME FOR FILING DEFENCE
-------------------------------------------------------------
Dear Sirs

The defendant and the claimant in claim XXXXXX have agreed that the period for filing a defence specified in rule 15.4 shall be extended by 28 days as allowed under CPR 15.5. This extends the date for filing of a defence to 18th August 2014.

Kind regards

xxxxxxxxx
Defendant

Regarding the payment they claim occured - They have not supplied any documents showing the alleged payment, nor have they indicated why they believe this to be true. Is it possible for me to ask them on what basis this claim is made and/or force them to disclose the relevant documents?

At the pre-defence stage the only way to do that would be to apply to enforce your CPR 31.14 request with an unless order which would cost you £155 :owhell:. See here for more info about unless orders: http://www.legalbeagles.info/forums/...order-at-court

If the claim progresses to a trial, the court will order them to provide the documents at least 14 days before the trial date and to bring the originals to the hearing without the need for you to make an application. :thumb:

[User4327]

Re: Lowell / BW Legal v User4327

Today I received the following response from bwlegal...

"We can confirm that the claim form was issued on 28 July 2015, and deemed as served on 3 August 2015. Under the Court rules you have 14 days from the service date in which to file a reply to the Claim Form. Upon filing an acknowledgment of service this is extended to 28 days.




Your request to extend the time for filing subject to CPR 15.5 for a 28 day extension is also calculated from the date of service of the claim form.





We hope this clarifies the position."


...This has confused me, when do I have to file my defence by? Please give a specific date.

Regards,

User4327

[FlamingParrot]

Re: Lowell / BW Legal v User4327

Today I received the following response from bwlegal...

"We can confirm that the claim form was issued on 28 July 2015, and deemed as served on 3 August 2015. Under the Court rules you have 14 days from the service date in which to file a reply to the Claim Form. Upon filing an acknowledgment of service this is extended to 28 days.

Your request to extend the time for filing subject to CPR 15.5 for a 28 day extension is also calculated from the date of service of the claim form.

We hope this clarifies the position."

...This has confused me, when do I have to file my defence by? Please give a specific date.

The relevant bit of the CPR are as follows:

The period for filing a defence

15.4
(1) The general rule is that the period for filing a defence is –
(a) 14 days after service of the particulars of claim; or
(b) if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim.

However, the Northampton bulk centre allows you an extra 5 days for service: https://www.justice.gov.uk/courts/no...sked-questions

How long do I have to file a response to my claim?

Counting from the date of issue -

• Acknowledgement of Service:
• 14 Days + 5 Days (service) = 19 Days. (An Acknowledgement of Service gives 14 days extra from the date of service to file a defence).
• Defence, without filing an Acknowledgement of Service:
• 14 days + 5 Days (service) = 19 Days.
• Defence, after filing Acknowledgement of Service:
• 14 + 14 + 5 = 33 Days in total.

This is the bit that refers to extensions:

Agreement extending the period for filing a defence

15.5
(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

Rule 15.4, quoted above, gives you 28 days, CPR 15.5 clearly says the period shall be EXTENDED by up to 28 days, so they are ON TOP of the previous 28 days (+5 for service).

So issue date = July 28th + 61 days (28 initial + 28 extension + 5 for service) = September 27, as shown here: http://www.timeanddate.com/date/date...aw=&ad=61&rec=

[User4327]

Re: Lowell / BW Legal v User4327

I have not had definitive clarification of the due date from BW Legal, however because of the current submission date I have emailed (today to ccbcdefendants@....) the court to notify them of the extension. I have attached all correspondence between myself and bw legal re the extension.

I do not want to be late submitting my defence and considering the due date is 30 August, I would like it confirming that what I've sent is acceptable. Is there a number I can call to get clarification?

Regards,

User4327

[User4327]

Re: Lowell / BW Legal v User4327

Thanks for your help so far FlamingParrot / Nemesis45 .

Following a phone call to BW Legal yesterday, during which they maintained my defence was still due on 01 September 2015 (abnd that they would send clarification of this via email yesterday afternoon), I have today received an email stating that they have granted an extension of 28 days and my defence is now due on 15 September 2015.

In their letter they say I have NOT acknowledged service and therefore the defence is due 42 days (14 + 28 extension) after the service date 15 Septemebr 2015. - I have therefore notified the court of this agreed date.

Please note, I have checked MCOL and I have acknowledge the service furthermore BW Legal were notified of this when I sent them my document request under CPR 31.14.

Following my CPR 31.14 request, other than their original acknowledgement (see Reply #7) I have not received any documentation nor any other info related to this request. Should I send them a reminder that I am still waiting on the documentation and/or that I have in fact acknowledged the service (as per my original letter)?

Also, because I have currently not received anything, I assume my defence is currently fairly standard affectively stating that they have not provided any documentation (and have not been helpful in giving the extension) hence I am unable to put together an informed defence and it should be struck out or a further extension given if they can provided the details (obviously in the correct format with facts etc). Is this correct??

Separate to my defence, what are your thoughts on submitting a counter claim for harassment and the stress etc of defending this claim? Putting together these letters etc is taking a lot of time, and the stress and worry is not what I need at this time?Regards,

User4327

[User4327]

Re: Lowell / BW Legal v User4327

My defence is due in a couple of days, I would be grateful for some advice on what to submit please?

I still have not received any documentation requested in my CPR request. The agreed extension was to the 15th september.

What defence should I submit?

Any help/advice would be much appreciated please?

[FlamingParrot]

Re: Lowell / BW Legal v User4327

Following a phone call to BW Legal yesterday, during which they maintained my defence was still due on 01 September 2015 (abnd that they would send clarification of this via email yesterday afternoon), I have today received an email stating that they have granted an extension of 28 days and my defence is now due on 15 September 2015.

How did they work that out? If your defence was due on the 1st of September and you got a 28 day extension, it can't be due on the 15th. :confused2:

In their letter they say I have NOT acknowledged service and therefore the defence is due 42 days (14 + 28 extension) after the service date 15 Septemebr 2015. - I have therefore notified the court of this agreed date.

Please note, I have checked MCOL and I have acknowledge the service furthermore BW Legal were notified of this when I sent them my document request under CPR 31.14.

Your defence shouldn't be due on the 15th then. If the original due date was the 1st and you got a 28 day extension, it would be due on the 29th.

Following my CPR 31.14 request, other than their original acknowledgement (see Reply #7) I have not received any documentation nor any other info related to this request.Should I send them a reminder that I am still waiting on the documentation and/or that I have in fact acknowledged the service (as per my original letter)?

They have agreed to a 28 day extension which is the maximum allowed under CPR 15.5 so no need for that.

Also, because I have currently not received anything, I assume my defence is currently fairly standard affectively stating that they have not provided any documentation (and have not been helpful in giving the extension) hence I am unable to put together an informed defence and it should be struck out or a further extension given if they can provided the details (obviously in the correct format with facts etc).Is this correct??

The part about a standard defence saying you've not received documents is correct but they have agreed to an extension so that bit is not applicable.

Separate to my defence, what are your thoughts on submitting a counter claim for harassment and the stress etc of defending this claim? Putting together these letters etc is taking a lot of time, and the stress and worry is not what I need at this time?Regards,

A counter claim can only be submitted if the creditor owes you money. If they are unable to supply any documents and end up having to discontinue the claim you could apply for your costs and expenses at that point.

My defence is due in a couple of days,

See above, your deadline would be 61 days from date printed on the claim (33 + 28 extension).

I would be grateful for some advice on what to submit please?

I still have not received any documentation requested in my CPR request. The agreed extension was to the 15th september.

What defence should I submit?

Any help/advice would be much appreciated please?

You will find the generic defence based around not having received any documents here: http://www.legalbeagles.info/forums/...t-Court-Claims

It would be an idea to post up your draft before submitting it. :typing:

[User4327]

Re: Lowell / BW Legal v User4327

Thank youFlamingParrot

See above, your deadline would be 61 days from date printed on the claim (33 +28 extension).

I appreciate what you’re saying and I agree my deadline should be 61 days fromthe date printed on the claim, however I have not been able to obtainagreement/clarification of this from BW Legal.
Whilst they state in their original letter ‘our client have no objections to extendingthe time for filing of your defence for 28 days” they originally said “Yourdefence is therefore due on or before 1 September 2015”.
After pushing for clairfication etc, they moved this date forward to 15^thSeptember on the basis that I have 14 days to acknowledge and 28 days extension– this again is not accurate, however I have not been able to get any furtherclarification, hence the DATE AGREED is 15^th.
Inotified the court and they have not clarified when my defence is due, as I don’twant to submit late, I am therefore assuming it is on the DATE that has beenAGREED, i.e. 15^th September.

You will find the generic defence based around not having received anydocuments here: http://www.legalbeagles.info/forums/showthread.php?53221-EXAMPLE-Defence-for-Consumer-Credit-Court-Claims

The link you posted is for “aclaim UNDER £10,000 for a LOAN or a CREDIT CARD or a CATALOGUEACCOUNT where you have sent a formal CCA request and a CPR 31.14 requestto which you have had no documents in response.”

OVERDRAFT is not included in this list, does this defence template also coveroverdrafts and therefore is it still relevant? If it is relevant, what sectionof the consumber credit act should I be quoting?

It would be an idea to post up your draft before submitting it.

I am working on the defence at the moment, is it possible to send you it in a private message? I don’t want to post specifics (names/claim numbers etc) in the forum?

Again your help is much appreciated. Thank you.

[FlamingParrot]

Re: Lowell / BW Legal v User4327

The link you posted is for “aclaim UNDER £10,000 for a LOAN or a CREDIT CARD or a CATALOGUEACCOUNT where you have sent a formal CCA request and a CPR 31.14 reques tto which you have had no documents in response.”

OVERDRAFT is not included in this list, does this defence template also cover overdrafts and therefore is it still relevant? If it is relevant, what section of the consumber credit act should I be quoting?

The generic defence is just an example which needs to be amended to suit individual cases. A lot of those items still apply to overdrafts, with the exception of the references to s.77/78 of the CCA.

I am working on the defence at the moment, is it possible to send you it in a private message? I don’t want to post specifics (names/claim numbers etc) in the forum?

Again your help is much appreciated. Thank you.

I shall take a look...

[FlamingParrot]

Re: Lowell / BW Legal v User4327

A starting point for your defence, see what you think:

1. The Defendant received the claim xxxxxxx from the Northampton County Court on July 28th 2015.
2. Each and every allegation in the Claimant's statement of case is denied unless specifically admitted in this Defence.
3. This claim is for a debt resulting from a Current Account agreement with Lloyds Bank Plc.
4. The Claimant's statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.
5. The Defendant contends that the claim is Statute Barred by virtue of the Limitation Act 1980, s.6.
6. It is admitted that the Defendant held a Current Account with Lloyds Bank from 2008.
7. The Current Account had an overdraft limit of £200.
8. In xxxx 2008, Lloyds Bank unexpectedly withdrew the overdraft facility, effectively reducing the limit to zero.
9. The reduction resulted in unauthorised overdraft charges being applied to the account. Lloyds Bank applied over £xxxx in bank charges to the Defendant's account.
10. The Claimant's statement of case states that the account was assigned from Lloyds Bank to Lowell on xx/xxxx/xxxx. The Defendant does not recall receiving notice of this assignment.
11. On xx/xxxx/xxxx the Defendant sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to BW Legal, requesting the Claimant provide copies of the current account agreement and Notice of Assignment.
12. BW Legal have not sent any of these documents. The Defendant requires a copy of the agreement and terms and conditions applicable to the account to assess their position regarding the charges applied to the account.
13. The Defendant has sent a Subject Access Request under the Data Protection Act to Lloyds Bank Plc to obtain copies of statements of account. The request was sent on xx/xxxx/xxxx and the Data Controller of Lloyds Bank Plc has 40 days to respond to the Defendant. Once this information is received the Defendant may amend their defence.
14. The Defendant asked BW Legal to agree to extend the time period allowed for filing of a defence pending receipt of documents as allowed under CPR 15.5 and the Parties agreed to an extension to allow the Claimant additional time to produce the relevant documentation to evidence their claim, however they have failed to do so.
15. 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, that they have the right to claim, and that it is not time barred under s.6 Limitations Act 1980.
16. The Defendant requests the court orders the Claimant to provide the necessary documentation in order for them to fully plead their case, that being the Agreement, the Terms of the Account at inception and as varied, the Assignment Notice, the Default Notice and a full statement of the account, else the Claim should stand struck out.
17. In the event that the relevant documents are received from the Claimants the Defendant will be in a position to amend their defence, and would ask that the Claimant bears the costs of the amendment.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.



Signed …………………………………………

Dated .................................................. ....

[User4327]

Re: Lowell / BW Legal v User4327

Thanks FlamingParrot,

The original one I wrote and sent you took elements from both of the examples given in the link you sent.

With regards the one you posted, at this stage should I admit I had an overdraft etc and state it's statute barred, (I'm not saying I should lie about it), but could I miss that part out and submit a defence on the basis of no documentation, and IF they produce the documentation then resubmit with the statute barred defence and state I had an overdraft and it was unexpectedly taken away? Similarly, do I need to say that I have sent a SAR request at this stage or can I take that part out?

Thanks again.

[FlamingParrot]

Re: Lowell / BW Legal v User4327

Thanks FlamingParrot,

The original one I wrote and sent you took elements from both of the examples given in the link you sent.

With regards the one you posted, at this stage should I admit I had an overdraft etc and state it's statute barred, (I'm not saying I should lie about it), but could I miss that part out and submit a defence on the basis of no documentation,

If you never had the account in question then you would say it is denied you had it, if you think otherwise please prove it, however, you can't deny having an account and then say it's SBd, if it wasn't your account then how would you know it's SBd if you see what I mean? On the above statement you are saying you haven't got enough documents over and over again, no question about that. Bear in mind lack of documents is not an absolute defence, SBd is. The documents situation can be easily remedied by sending them to you. If you only base your defence upon that fact, you'd be left with no defence.

With overdrafts it's even more difficult to defend just on the basis of no documents because you can't use the protection of ss.77/78 that state they cannot enforce a debt whilst they are in default. You don't have the protection of s.87 either so you can't argue about the default notice which is one point often used to defend claims for debts that are regulated.

and IF they produce the documentation then resubmit with the statute barred defence and state I had an overdraft and it was unexpectedly taken away? Similarly, do I need to say that I have sent a SAR request at this stage or can I take that part out?

Once a defence is submitted you can't just re-submit it, you'd need permission to amend it, otherwise you'd need to make an application to the court, pay the £155 N244 fee, etc. SBd is the key element here and the burden of proof is on them to convince the court it isn't, not on you to prove it is. If the debt is SBd then it doesn't matter whether they've got documents or anything else so technically we could cut it off right there and then, however, the rest is a back-up, a sort of PlanB so to speak, in case it turns out not to be SBd -and with overdrafts it's a lot trickier because the clock doesn't start till they send you a final demand recalling the overdraft, not when you last paid into the current account. That's why I changed s.5 of the Limitation Act to s.6, because O/Ds do not fall under s.5 as they are repayable on demand and have no set repayment dates. :ohwell:

If not SBd, overdrafts are not easy to defend on technical grounds, however, in this case it sounds like the whole thing is made almost exclusively of charges piled on top of more charges. Charges are not unlawful as such but here we are making the point that you'd need to see the T&Cs of the current account as well as statements showing how the balance was accrued and the T&Cs are required to assess whether they had the right to charge as much as they did, etc. so you are not defending just on a technicality such as not having been supplied with a copy of the agreement, which wouldn't be enough of a defence for an overdraft. :mmph:

The bit about sending a SAR is not crucial to your defence, just backs up the idea that you haven't got enough info and may need to amend your defence. As I said above, normally you can't just resubmit a defence, so we are paving the ground in case it's required as well as trying to cover as many bases as possible in the event it turns out not to be SBd. :thumb:

[User4327]

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.


A couple of other points....

however,in this case it sounds like the whole thing is made almost exclusively ofcharges piled on top of more charges

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


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?