Received CCJ from Lowell HELP !

[Marra2]

Re: Received CCJ from Lowell HELP !

Hi again people,
I,m trying to figure out what to do next !
I,m past the 14 days to submit a witness statement even though its been sent so what to do now ?
Can I send a 2nd witness statement or similar ?
Still not heard back from the solicitors and doubt I will now
Thanks

[Marra2]

Re: Received CCJ from Lowell HELP !

Ok so I,m going to send a new witness statement which will be below and is open to amendment (please help) of course the document which proves it is statute barred will be attached and I propose as Di says is to send it to the solicitors first with a chance for them to withdraw before sending it to the court.


Claimant
- and –
Defendant
XXXXXXXXX

_________________________________

WITNESS STATEMENT OF XXXXXXXX
_________________________________



I XXXXXXX of XXXXXXXXXXX being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

2. This 2nd or amended witness statement is made due to new evidence only coming to light after receiving the claimants witness statement on the afternoon of 29/9/2016 and having filed my witness statement a week earlier this evidence wasn't available to me .

3. Please find attached evidence marked cw101 which proves that the last payment or any acknowledgement of this debt was
10/7/2009.

4. Since this date was 6 years and 8 months before the claimant began proceedings in the court this debt was already statute barred when proceedings against me began.

Statement Of Truth
[MENTION=87380]Diana M[/MENTION] [MENTION=55034]nemesis45[/MENTION]

[Diana M]

Re: Received CCJ from Lowell HELP !

Ok so I,m going to send a new witness statement which will be below and is open to amendment (please help) of course the document which proves it is statute barred will be attached and I propose as Di says is to send it to the solicitors first
@Diana M

Just to be clear I have not proposed anything neither have I given any legal advice. As far as I can tell it has not yet been established whether the debt is statute barred or not.

I've put forward an informal opinion during a general discussion on your situation without having seen any paperwork.

Any advice given and any steps you take will come from the Legal Beagles forum not my firm.

Di

[Marra2]

Re: Received CCJ from Lowell HELP !

Understood Di

[Diana M]

Re: Received CCJ from Lowell HELP !

The thing is I know you're desperate to get rid of this situation but as Amethyst has previously said in post # 74 you need to discuss your next step with all those helping before you jump in with both feet.

Sometimes a bit of a discussion is needed to suss out the best way forward in a claim, particularly at this stage.

Your 6 am email to Lowells wasn't the best way of handling things so why not take a breather until Monday morning and then decide the best way forward.

They'll be no one in Lowells' offices until then anyway

Di

[nemesis45]

Re: Received CCJ from Lowell HELP !

[QUOTE=Marra2;680762]Ok so I,m going to send a new witness statement which will be below and is open to amendment (please help) of course the document which proves it is statute barred will be attached and I propose as Di says is to send it to the solicitors first with a chance for them to withdraw before sending it to the court.


Good Marra!

On your intro it would be better to say (imo)

I Marra of your address will say as follows. (from experience judges like it to be clear as to who's statement it is.


Don't forget a covering letter to the court asking permission to have the new WS admitted.

nem

Claimant
- and –
Defendant
XXXXXXXXX

_________________________________

WITNESS STATEMENT OF XXXXXXXX
_________________________________



I XXXXXXX of XXXXXXXXXXX being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

2. This 2nd or amended witness statement is made due to new evidence only coming to light after receiving the claimants witness statement on the afternoon of 29/9/2016 and having filed my witness statement a week earlier this evidence wasn't available to me .

3. Please find attached evidence marked cw101 which proves that the last payment or any acknowledgement of this debt was
10/7/2009.

4. Since this date was 6 years and 8 months before the claimant began proceedings in the court this debt was already statute barred when proceedings against me began.

Statement Of Truth

[Diana M]

Re: Received CCJ from Lowell HELP !

Okay, In your original defence you include this line;


and in your Witness Statement it will have said something similar about documents not being received.

So you have the opening to you to amend - and claim costs from the other side, due to their failure to provide ANYTHING until witness statement exchange.

You will need to amend the defence as it didn't include any defence other than the lack of documents, unfortunately as you didn't bring up statute barred in your defence, then it isn't pleaded and can't be used in court. Although in small claims you can sometimes get away with it but it would be winging it, so i'd be happier if you amended before court

Hang fire for the mo and let Di have another look at the thread and then we can help with a more formal letter to the solicitors and a draft of the proposed amended defence.

marra, maybe read Amethyst's post # 78 again before you finally decide your next step.

I can see from your email to Lowells that there was no mention of what you might do if they did not "withdraw" (I presume you meant Discontinue) their claim.

There's no reference to an amended defence (or possible supplemental witness statement) and no deadline for them to respond to your request.

If an amended defence were to be the way forward then normally a draft of that amended defence would be attached to any formal letter (not an email) sent to the Claimant's solicitor inviting them to discontinue.

Di

[Amethyst]

Re: Received CCJ from Lowell HELP !

Morning xxx

I'll give you a hand with this this evening (slightly sore head this morning and out for rest of day) as basically we need this letter and draft application to be absolutely correct to give you the best chance of the claim being discontinued without having to go through a formal application or hearing. As Di says there's no-one at Lowell at the weekend anyway so rushing won't benefit you at all, so just have a breather today and don't send anything.

I'll be back later on when my brain is functioning like a human being rather than a fuggy sheep.

[Marra2]

Re: Received CCJ from Lowell HELP !

Thank you everyone 😃

[Amethyst]

Re: Received CCJ from Lowell HELP !

Okay just a draft for now - will do app and defence tmw morning.

Just thinking whether it's even worth asking them to consent to the amendment. No need to attach a copy of their own witness statement to the letter btw.

Anyway don't do anything with it, we need to send the draft app and draft amended defence with it, Di might have a stronger line of wording - I've kept it LIP as poss.

---------------------------------------

Dear Lowell Sols ?

Ref: County Court Claim Number XXXXXX
xxxxxxxxxxxx County Court. Lowell Portfolio v xxxxxxxxxxx.
Hearing Date 14th October 2016

I am in receipt of your Witness Statement and exhibits dated xx September 2016 and received by me on xxxxxxxxx 2016.

I note that your Witness Statement and attached exhibits state that the date of default is 10th July 2009, therefore the earliest point at which your client/the original creditor could have sued for the full balance owing to this debt was more than six years ago. Your Witness Statement also pleads that the last payment made to the original creditor was a sum of £71.43 made on 23rd November 2008, and confirms that no further payment was made after that date.

This debt is therefore statute barred by virtue of section 5 of the Limitations Act 1980.

Despite my requesting copies of documentation evidencing your client's claim since receipt of the claim in April 2016 this is the first time your client has provided any information regarding the alleged debt. In my defence to your clients claim I reserved the right to amend my defence should documentation be provided that enabled me to plead effectively.

I therefore give notice of my intention to file a formal application with the xxxxxxxxxxx County Court to amend my defence pursuant to Civil Procedure Rule 17.1(2) ( see copy attached ). This will be filed on 7th October 2016 and I will be asking the court to award the costs of this application against your client due to their inability to produce any documents until this very late stage, on exchange of Witness Statements, despite my request for this information being acknowledged nearly 6 months ago. I will invite the court to hear my application at the hearing on 14th October 2016, in order to avoid taking up additional court time.

Your client therefore may find it appropriate to discontinue their claim in order to avoid the further time and costs of amendment and the hearing, and I would invite them to do so and ensure I am in receipt of their notice of discontinuance before 4pm on the 7th October 2016. Should your client wish to proceed with their claim I ask that your client consents to the amendment of my defence in light of the new information provided.

I look forward to hearing from you.

Kind regards


xxxxxxxxxxxx
Defendant


------------------------------------------------------

[Marra2]

Re: Received CCJ from Lowell HELP !

Brilliant, thanks [MENTION=6]Amethyst[/MENTION] I won't do anything yet until you say, but thanks again.

[Amethyst]

Re: Received CCJ from Lowell HELP !

Application draft attached


DRAFT ORDER

In the xxxxxxxxxx County Court Business
Claim No. XXXXX
Lowell Portfolio
Claimant (Respondent)


and
xxxxxxxxxxxxxx
Defendant (Applicant)



-------------------------------------
DRAFT ORDER
------------------------------------

Before District Judge Sitting at the xxxx County Court, ADDRESS OF COURT on the ............. day of .............. 2016
Upon reading the application of the Defendant;

IT IS ORDERED THAT:
The Defendant has permission to amend their defence.
The Defendant shall by 4pm on ……….. 2016 file and serve their amended defence.
The Claimant may file and serve a reply to the amended defence by 4pm on ……………. 2016.
The Claimant pay the Defendant's costs of the application of £255.00.

Witness Statement

In the xxxxxxxxxx County Court Business
Claim No. XXXXX
Lowell Portfolio
Claimant (Respondent)


and
xxxxxxxxxxxxxx
Defendant (Applicant)


_________________________________

WITNESS STATEMENT OF XXXXXXXX
_________________________________



I XXXXXXX of XXXXXXXXXXX being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of my application to amend my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

2. This claim was brought by the Claimant on xx April 2016.

3. On xx April 2016 I made two requests to the Claimant for copies of documents relating to the claim pursuant to CPR 31.14.

4: The Claimant acknowledged receipt of my requests on xx April 2016.

5. The Claimant failed to provide any information in addition to their original particulars of claim until filing and serving their Witness Statement on the 29th September 2016.

6. I was unable to fully plead to the claim until receipt of that information, and I am now in a position to be able to fully plead.

7. The Claimant's Witness Statement and Exhibits evidence that the alleged debt is Statute Barred pursuant to section 5 of the Limitations Act 1980, and I wish to amend my defence accordingly.

8. I have attached a copy of my proposed amended defence.

9. Costs of the application should be awarded against the Claimant because it is only due to their failure to produce any information or documentation relating to their claim for over 5 months that this amendment is required. In my statement of case I stated that "In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment."

Statement Of Truth
I, xxxxxxxxxxxxxxxxxx, believe the facts in this Witness Statement are true.

signed

dated

Okay just finding your original defence so we can do amendment rather than full rewrite.

[Amethyst]

Re: Received CCJ from Lowell HELP !

Okay this was original defence, so working on the amendments now xxxx

I don't know how to do a strike through bit on here so have done underlining the bits to be removed and bold red the amendments. Need three copies of this attached to the application when you make it, but for sending copies of draft docs to Lowell/BW Legal now only one is necessary.

So LETTER, DRAFT ORDER, DRAFT N244 and DRAFT AMENDED DEFENCE to go to the claimants.

In the xxxxxxxxxx County Court

Claim No. XXXXX
Lowell Portfolio
Claimant



and
xxxxxxxxxxxxxx
Defendant




-------------------------------------
DRAFT AMENDED DEFENCE
------------------------------------

1: I received the claim xxxxxxx from the Northampton County Court on 5/4/2016

2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3: This claim appears to be is for a Mobile Telecoms Agreement regulated under the Consumer Credit Act 1974.

4: It is denied that the Defendant has previously entered into an agreement with EE for provision of credit. It is admitted that the Defendant has previously entered into an agreement with T Mobile for provision of a mobile telephone service.

5: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

6. The particulars of claim fail to state when the agreement was entered into. The Claimant has stated that the original agreement was entered into on the 9th April 2007. The Claimant has also stated that the agreement was for a 24 month contract due to end on 9th April 2009. This is neither admitted nor denied by the Defendant and is reliant on the pleadings of the Claimant in this respect.

7. The Claimants statement of case states that the account was assigned from EE TMobile to Lowell on 30/09/2010. The Defendant does not recall receiving notice of this assignment. The Claimant has since sent a copy of the notice of assignment dated 19 November 2016.

8. It is denied that EE Tmobile served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant has not provided any copy of a Default Notice.

9: On the 18/04/2016 I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to BW Legal. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

10. BW Legal has not sent any of these documents to me. The Claimant has provided the Claimant with a copy of the Terms and Conditions applicable to the account. A copy of an invoice dated June 2009. A copy of the notice of assignment of the alleged debt from TMobile to Lowell Portfolio 1 Ltd dated 19 November 2010. A copy of the Notice of Assignment from Lowell Portfolio, also dated 19 November 2010. A copy of a letter from BW Legal dated 27 April 2016 acknowledging receipt of the Defendant's request for documentation.

The Claimant has failed to provide a copy of the original signed agreement or the Default notice.

11. On the 18/04/2016 I sent a formal request for a copy of the original agreement to Lowell pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.

12. The Claimant has failed to comply with [s77 (1) / s 78 (1)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement.

13. 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.

14. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

16. The Defendant contends that the debt is time barred by statute pursuant to section 5 of the Limitations Act 1980 in that;

i) No payment or acknowledgement of the debt has been made since a payment of £71.43 made on 23rd November 2008. This is over 6 years before the Claimant issued the claim in this case.

ii). The evidence provided by the Claimant provides that the account entered default in June 2009. This is over 6 years before issue of the claim in this case.

iii). The evidence provided by the Claimant states that the original contract was for a period of 24 months until April 2009. This is over 6 years before issue of the claim is this case.

Therefore they are unable to enforce the debt and have no reasonable prospect of success in bringing this claim.

16. 17. It is denied that the Claimant is entitled to the relief as claimed or at all.

17. The Defendant therefore respectfully requests that the Claimant's claim be struck out and costs awarded to the Defendant.

Statement of Truth

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



Signed

[Marra2]

Re: Received CCJ from Lowell HELP !

Ok got all that I think !
Should I post this or email her that sent the WS to me ?
What should be the date for the ultimatum 7th October ?
And thanks again [MENTION=6]Amethyst[/MENTION]

[Amethyst]

Re: Received CCJ from Lowell HELP !

Personally I would put it all in one document as a PDF and print it out, send a copy to the solicitors as put on the claim form, and send an attachment PDF of it all to the solicitors email ( for reference)