Court Caste Lowell/Bryan Carter - Worried sick

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

I would move para 14 to below para 5 so that the two are easily connected. This was not a loan was it but a credit agreement so I think it would be S78(1) and S78(6)

I am sure others will have comments but go get em is what I say.

Done. Thanks!!

[Berniethebolt]

Re: Court Caste Lowell/Bryan Carter - Worried sick

I would move para 14 to below para 5 so that the two are easily connected. This was not a loan was it but a credit agreement so I think it would be S78(1) and S78(6)

I am sure others will have comments but go get em is what I say.

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

OK everyone this is, i think, my final WS - feedback appreciated

CLAIM No: xxxxxxxx
IN THE COUNTY COURT AT xxxx
BETWEEN:

	LOWELL PORTFOLIO LIMITED	CLAIMAINT
	and
	IllustriousMuz	DEFENDANT

WITNESS STATEMENT OF IllustriousMuz
I, IllustriousMuz being the Defendant in this case make the following statement believing it to be true.


1. On the 26^th January 2015, I received a claims form from the County Court Business Center, Northampton for the amount of £850.36.


2. There were no details about when the alleged default occurred.


3. The particular of claims fail to state when the agreement was entered into.


4. On 26^th January 2015 I made a formal, written request to the Claimants solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of the case [EXHIBIT A], pursuant to Civil Procedure Rule 31.14


5. On the 26^th January 2015 I sent a formal request for the copy of the original agreement to the claimant [EXHIBIT B], pursuant to Sections [77-79] of the Consumer Credit Act 1974 along with a postal order for the statutory £1 fee.


6. I am still awaiting the claimant to comply with [S78(1) / S78 (6)] of the Consumer Credit Act 1974 and by virtue of [S78 (1) / S78 (6)] of the Consumer Credit Act 1974 cannot enforce the agreement until they have complied with requests for all pertinent documentation.


7. Civil Procedure Rule 34.15 requires documents are provided within 7 days from receipt of a written request. The claimant has failed to provide any of the documents I have requested.


8. Around the beginning of May 2015, I telephoned the Claimants solicitors to try and resolve matters. I mentioned the failure to comply with my requests for documentation to be told by the lady I was speaking to that they don’t respond to those requests on the grounds that the original creditor should have provided the information. They made no representation to me that they had not received the requests but were simply ignoring them.


9. On the 18^th September 2015 I received a Witness Statement from the Claimants solicitors.


10. The Claimants Witness Statement denies having received any documentation from me. This is the first time that I have been made aware of this despite speaking on the telephone to the Claimants solicitors.


11. The Claimants Witness Statement contains a purported Notice of Assignment, dated 15^th October 2013. This is the first time I have seen this document and deny receiving any such document.


12. The Claimants Witness Statement contains a purported letter from the original creditor, also dated 15^th October 2013, notifying me of the assignment. This is the first time I have seen this document and deny receiving any such document.


13. The Claimants Witness Statement, Paragraph 6, declares that the account “Fell into default 2^nd October 2013” and that “A default notice would have been sent to the defendant at the time”. I deny receiving a Default Notice.


14. The Claimants Witness Statement, Paragraph 7, declares “the debt was assigned to the claimant on or around 4^th October 2013. However, under S87 of the Consumer Credit Act 1974, a default notice should be issued giving the debtor at least 14 days to remedy the breach from when the notice is served and cannot be assigned until the 14 days have elapsed.


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 as claimed by providing pertinent documentation which has yet to be delivered to me.


16. The Defendant submits that the Claimant does not have a valid claim because the Claimant has failed to meet all obligations under Civil Protection Rule 16.5(4)


17. The Defendant submits that the Claimant does not have a valid claim because the Claimant has failed to comply with S78(1)/S78(6) of the Consumer Credit Act


18. The Defendant submits that the Claimant does not have a valid claim because the Claimant and the Original creditor have, by their own admission, breached S87 of the Consumer Credit Act by assigning the debt before any statutory default notice period has elapsed.


19. The Defendant requests that the Claimants claim be struck out.

It the last 3 or 4 closing paragraphs I'm unsure on how to word.

Thanks again everyone for your advice.

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

A safe assumption to make, otherwise what are they referring to? They're not saying you missed a payment on that date. If would be for the judge to decide whether, on the balance of probabilities, you would have sent the CCA request based on the fact you've got your own copy of the letter. Once more, it's a matter of appearing credible. :thumb:

Well, I certainly hope I come across as credible. I responded to the initial claim very quickly, I didn't hang around and I would hope that the fact my defence was submitted only 4 days after they filed it would give an example of my desire to resolve the issue. Particularly, why would I say in my defence I was sending them the CCA and CPR requests only to not follow up on it. That to me, were I the judge, certainly indicate that I had the intention to do so. Mind, you can never tell though...

Totally off-topic on this thread but you should have claimed the monies due to you from the Insolvency Service, including statutory redundancy pay, notice period pay, unpaid wages and holiday pay. Did you not submit a claim?

Our boss had no assets supposedly - no house, no cars, no nothing. Despite actually driving around town in an Aston Martin. Oh and living in a huge house in the part of town where all the footballers lived. Five of us turned up for work one morning to find the place locked up, we'd actually been in work the day before too. Promises were made to get things set right but nothing ever happened. Although not proven, a security guard at the site said that someone had been in the night before an emptied the place of all computers and even the furniture. Some people are just downright crafty I suppose. [/Quote]

Ringing those low forms of life is not a good idea, sometimes it may be advisable to ring the solicitors dealing with a claim to chase up CPR requests and ask them to agree to an extension but that does not apply to Carter who always sends his usual template letters pre-empting himself and saying his illustrious clients are not agreeable to an extension long before anyone even asks!

I'm sorry but I got tired of trying to be diplomatic where the Dynamic Duo are concerned!

Well never again is all I can say - I thought I was being diplomatic in my approach. You phone BC though and you don't get a legal agent, you call a call center worker. Reading from a template. They actually offered to settle for a small ammount and when I called to pay that number doubled, instantly, on the grounds that I only had a certain number of days to accept it. Despite it saying nowhere on the letter that was the case. They try and lure you in with stuff like that. Very underhand. I'd have submitted the letter but I have no clue where it ended up..

[FlamingParrot]

Re: Court Caste Lowell/Bryan Carter - Worried sick

[QUOTE=illustriousmuz;577823]Perhaps, but since BC/Lowell have not sent any documentation as per CPR/CCA rules or told me when the default notice was issued, I cannot say if this is the case or not. However, I take the WS as inferring the account entered that status on the 2nd October and a default notice issued at the time.

A safe assumption to make, otherwise what are they referring to? They're not saying you missed a payment on that date.

I'd say it's an avenue worth exploring, especially since the CCA request has never been fulfilled and I made it clear in my initial defence that documentation should be provided. I asked the court to direct this in my initial defence, I'm not sure what they would do but I would certainly say that part of litigation is responding properly, and timely, to a defence that's been lodged. If I asked for that in January they've had 10 months to come up with it.

I've got this printed out ready to go, as FlamingParrot said, the proof that I sent it isn't required so much as it being likely that the request was made. I made the requests the same day I filed my defence which was, frankly, timely. I filed it on the 26th January, 2 days after receiving it in the post.

If would be for the judge to decide whether, on the balance of probabilities, you would have sent the CCA request based on the fact you've got your own copy of the letter. Once more, it's a matter of appearing credible. :thumb:

Hey I'd be happy for it to go back to ShopDirect, for them to let me rectify the issue and get the marker removed. I lost my job in April 2013 when the company I worked for folded overnight, (no notice), and we'd not been paid properly for 2 month prior to that anyway.

Totally off-topic on this thread but you should have claimed the monies due to you from the Insolvency Service, including statutory redundancy pay, notice period pay, unpaid wages and holiday pay. Did you not submit a claim?

The fact is, I had no notice of default, if I'd had one I would have made sure it never came to this. The other fact is, I've tried to be accommodating, I've phoned Lowell and BC (thats a lesson learned, I can tell you), and I'm treat like dirt for the trouble.

That's something else to fall back on.

Ringing those low forms of life is not a good idea, sometimes it may be advisable to ring the solicitors dealing with a claim to chase up CPR requests and ask them to agree to an extension but that does not apply to Carter who always sends his usual template letters pre-empting himself and saying his illustrious clients are not agreeable to an extension long before anyone even asks!

I'm sorry but I got tired of trying to be diplomatic where the Dynamic Duo are concerned!

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

The Default Notice could have been dated 17th Sept ( or thereabouts) giving a date of 1st Oct (or thereabouts) - which would mean it would enter into default on the 2nd Oct and be assigned same/next day.

Perhaps, but since BC/Lowell have not sent any documentation as per CPR/CCA rules or told me when the default notice was issued, I cannot say if this is the case or not. However, I take the WS as inferring the account entered that status on the 2nd October and a default notice issued at the time.

Under s.87 of the CCA a default notice should be issued giving the debtor at least 14 days to remedy the breach from when the notice is served, which would be at least two days later, before they can terminate the agreement or demand early repayment. Imagine if you had decided to pay off the arrears and bring the account back up to date and it had already been sold! :scared:

Exactly. I think the point is, none of what I've got so far makes any sense.

I think everyone is getting mixed up with terminology and I am not convinced that this an avenue worth exploring. An account can fall into default as soon as the minimum payment is not made , even when a default notice is issued it is still only in default. It can not be 'defaulted' until after the expiry of the DN and it can be defaulted sometime after that so it really is quite possible that it was defaulted on 2nd and sold on 4th . If however the witness statement says the DN was issued on 2nd and the account sold on 4th there may and I stress may be an challenge but I wouldn't put my shirt on it.

I'd say it's an avenue worth exploring, especially since the CCA request has never been fulfilled and I made it clear in my initial defence that documentation should be provided. I asked the court to direct this in my initial defence, I'm not sure what they would do but I would certainly say that part of litigation is responding properly, and timely, to a defence that's been lodged. If I asked for that in January they've had 10 months to come up with it.

If I understand correctly though, you sent a CCA request to Lowells and they have not replied , that is I think your best hope of defeating this claim . A copy of the CCA request in your witness statement and if needed a print out of the metadata as a bit of back up to support your balance of probabilities argument.

I've got this printed out ready to go, as FlamingParrot said, the proof that I sent it isn't required so much as it being likely that the request was made. I made the requests the same day I filed my defence which was, frankly, timely. I filed it on the 26th January, 2 days after receiving it in the post.

You can certainly challenge the fact that a DN was issued and it would be up to them to retrieve the log from the OC showing the details of the issue , the problem with that is that the debt could just go back to the OC, be defaulted and another claim placed although you could argue that is an abuse of process.

Hey I'd be happy for it to go back to ShopDirect, for them to let me rectify the issue and get the marker removed. I lost my job in April 2013 when the company I worked for folded overnight, (no notice), and we'd not been paid properly for 2 month prior to that anyway. I made ShopDirect aware of the situation, that I had literally not one bean to rub together and they led me to believe that they could wait. I was offered a job in September 2013 and started October 2013 and I made arrangements to pay off all of the people who'd cautiously waited for me to get back. The bank being a primary one who was put right immediately. Despite this whole affair, I like to think of myself as someone who gets things sorted out.

The fact is, I had no notice of default, if I'd had one I would have made sure it never came to this. The other fact is, I've tried to be accommodating, I've phoned Lowell and BC (thats a lesson learned, I can tell you), and I'm treat like dirt for the trouble.

I bet I have confused the hell out of you with all the what ifs and different scenarios but I do think your best bet is the lack of a CCA request

That's something else to fall back on.

[Berniethebolt]

Re: Court Caste Lowell/Bryan Carter - Worried sick

I swear on my mothers life that it was not there when I first looked at it.

So indeed there are two key arguments
1) The issue of the DN , on what date and they need to show that

2) The lack of the CCA request

Sorry but I know have a phone call with my new best friend to deal with something , that is if the lazy cow is back yet

[FlamingParrot]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Oh crap, I really do need my silly glasses on
I can not for the life of me find the phrase quoted by FP

If that is the case I think they are royally fooked if you can argue the point well

What phrase?

- - - Updated - - -

What phrase?

It's from this post:

The Particulars of Claim make no mention of a default date, only that the account was assigned to them around the 11th October 2013

The Witness Statement from Bryan Carter states the account defaulted on the 2nd October 2013 and that a notice of default was issued. They then go on to say that they acquired the account on the 4th October 2013. The witness statement has attached "evidence" from ShopDirect confirming the default date of 2nd October 2013 (but no copies of the default notice)

The WS says, exactly, "The account fell into default on 2nd October 2014. A default notice would have been sent to the defendant at the time"

However, I should get 14 days to rectify a defaulted account and the original creditor can only assign the debt to someone like Lowell if those 14 days pass without me making arrangements to either settle the account or get the payments up to date. By their own admission, (which seems fairly hilarious for a solicitor), they are admitting that ShopDirect have sold the account without going through proper procedures in this case. As I understand it, the Default itself is now invalid since no time was given to me to arrange anything. It certainly casts doubt on the validity of their claims that a notice was issued, (at least I think so)

[Berniethebolt]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Oh crap, I really do need my silly glasses on
I can not for the life of me find the phrase quoted by FP

The WS says, exactly, "The account fell into default on 2nd October 2014. A default notice would have been sent to the defendant at the time"

If that is the case I think they are royally fooked if you can argue the point well

They really do need to show what date the DN was issued for the claim to have a chance ( I hope)

[Berniethebolt]

Re: Court Caste Lowell/Bryan Carter - Worried sick

I think everyone is getting mixed up with terminology and I am not convinced that this an avenue worth exploring. An account can fall into default as soon as the minimum payment is not made , even when a default notice is issued it is still only in default. It can not be 'defaulted' until after the expiry of the DN and it can be defaulted sometime after that so it really is quite possible that it was defaulted on 2nd and sold on 4th . If however the witness statement says the DN was issued on 2nd and the account sold on 4th there may and I stress may be an challenge but I wouldn't put my shirt on it.

Of course a default on a Credit File can be placed without the issue of a default Notice and an account can possibly be terminated without a DN being issued or a marker placed on the credit file

If I understand correctly though, you sent a CCA request to Lowells and they have not replied , that is I think your best hope of defeating this claim . A copy of the CCA request in your witness statement and if needed a print out of the metadata as a bit of back up to support your balance of probabilities argument.

You can certainly challenge the fact that a DN was issued and it would be up to them to retrieve the log from the OC showing the details of the issue , the problem with that is that the debt could just go back to the OC, be defaulted and another claim placed although you could argue that is an abuse of process.

I bet I have confused the hell out of you with all the what ifs and different scenarios but I do think your best bet is the lack of a CCA request .

I suppose the crux of the matter is , did you have the goods, are the figures correct and did you owe the OC the dosh although I am all for you going the dirty debt dodgers club of which I am a proud paid up member.

[FlamingParrot]

Re: Court Caste Lowell/Bryan Carter - Worried sick

The Particulars of Claim make no mention of a default date, only that the account was assigned to them around the 11th October 2013

The Witness Statement from Bryan Carter states the account defaulted on the 2nd October 2013 and that a notice of default was issued. They then go on to say that they acquired the account on the 4th October 2013. The witness statement has attached "evidence" from ShopDirect confirming the default date of 2nd October 2013 (but no copies of the default notice)

The WS says, exactly, "The account fell into default on 2nd October 2014. A default notice would have been sent to the defendant at the time"

However, I should get 14 days to rectify a defaulted account and the original creditor can only assign the debt to someone like Lowell if those 14 days pass without me making arrangements to either settle the account or get the payments up to date. By their own admission, (which seems fairly hilarious for a solicitor), they are admitting that ShopDirect have sold the account without going through proper procedures in this case. As I understand it, the Default itself is now invalid since no time was given to me to arrange anything. It certainly casts doubt on the validity of their claims that a notice was issued, (at least I think so)

Under s.87 of the CCA a default notice should be issued giving the debtor at least 14 days to remedy the breach from when the notice is served, which would be at least two days later, before they can terminate the agreement or demand early repayment. Imagine if you had decided to pay off the arrears and bring the account back up to date and it had already been sold! :scared:

[Amethyst]

Re: Court Caste Lowell/Bryan Carter - Worried sick

The Default Notice could have been dated 17th Sept ( or thereabouts) giving a date of 1st Oct (or thereabouts) - which would mean it would enter into default on the 2nd Oct and be assigned same/next day.

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

The Particulars of Claim make no mention of a default date, only that the account was assigned to them around the 11th October 2013

The Witness Statement from Bryan Carter states the account defaulted on the 2nd October 2013 and that a notice of default was issued. They then go on to say that they acquired the account on the 4th October 2013. The witness statement has attached "evidence" from ShopDirect confirming the default date of 2nd October 2013 (but no copies of the default notice)

The WS says, exactly, "The account fell into default on 2nd October 2014. A default notice would have been sent to the defendant at the time"

However, I should get 14 days to rectify a defaulted account and the original creditor can only assign the debt to someone like Lowell if those 14 days pass without me making arrangements to either settle the account or get the payments up to date. By their own admission, (which seems fairly hilarious for a solicitor), they are admitting that ShopDirect have sold the account without going through proper procedures in this case. As I understand it, the Default itself is now invalid since no time was given to me to arrange anything. It certainly casts doubt on the validity of their claims that a notice was issued, (at least I think so)

[Berniethebolt]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Hi
In your very first post you say that Lowell state the account defaulted on 2nd Oct, now you are saying it fell into default. I am sorry to be picky and you may have answered it but what exactly does it say in the POC and the witness statement .

Defaulted and fell into default could IMO mean two very different things

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

I think I've pretty much got my attack plan for when I go to court. I'll list them here.

1. I've been looking at the "evidence" submitted with the WS from Bryan Carter. Attached is supposedly a copy of the Statement of Account from ShopDirect which says, clearly, date of default 2nd October 2013. From research I've conducted online, a default notice should be issued and I would effectively have 14 days to recitify the problem. Which I couldn't possibly have, (or was denied to me), by the assignment of the debt to Lowell. The WS from Bryan Carter says that a default notice would have been issued but this makes the whole system of issuing the notice utterly pointless if ShopDirect are simply going to sell the debt without giving any opportunity to either settle it or come to an arrangement. It's also presses home my insistance that no default notice was sent, I personally think they just sold it on to Lowell without going through procedure. Again, from research, it appears that the debt could only be sold to Lowell if I did not respond to the notice within 14 days - they sold it in 2 apparently.

2. BC list multiple dates for the assignment. They claim the 4th October in the Witness Statement, they claim the 11th in the Particulars of Claim. They can't seem to get any dates right at all. Like they're pulling them from a dark passage located in their rear-end. If they can't even get that right, how can they say things were sent to me that weren't.

3. Another piece of evidence they attached is purported to be a letter from Shop Direct to me, dated the 15th October, telling me the account was now in the hand of lowell. Weirdly the same date that they supposedly wrote to me as well. Neither letter hit my doormat. Just immediate demands from Lowell. However, if they're saying that ShopDirect did send that letter to me, it's been written well before the time I should have been granted to put any account in order.

I must say, I'm starting to feel better about this whole situation