Lowell portfolio i ltd vs tengo_suerte

[tengo_suerte]

Issue Date: 06/06/16
Amount approx: £2,473
Claimant: LOWELL PORTFOLIO I LTD
Solicitor: LOWELL SOLICITORS LTD
Original Creditor: CAPITAL ONE
Particulars of Claim:
1) The defendant entered into a CCA 1974 reg. agreement with Capital One under account ref XXXXX ('the agreement').
2) The defendant failed to maintain the required payments and a default notice was served and not complied with.
3) The agreement was later assigned to the Claimant on 31/08/2013 and notice given to the Defendant.
4) Despite repeated requests for payment, the sum of £2,118.52 remains due and outstanding.
And the Claimant claims
a) The said sum of £2,118.52
b) Interest pursuant to s69 County Courts Act 1984 at the rate of 8% per annum from the date of assignment to the date of issue, accruing at a daily rate of £0.464, but limited to one year, being £169.48
c) Costs

Is the debt Statute Barred? NO
List any letters you have sent: NONE YET
Any Other Info:

So unfortunately I've been on holiday twice and have not been able to give this the attention it requires. I have filed the Acknowledgement of Service via MCOL but have now run out of time and my defence is due by TOMORROW Sat 9th July (issue date + 33 days).

I have done a lot of reading through other very helpful threads on this forum and am fairly clear as to what the process should be, however the problem is that I have not yet sent either the CCA request to the Claimant OR the the CPR request to the Claimants solicitors (stupid I know). My intention is to do that immediately, however I suspect that I am not then able to file as part of my defence that I have not yet received that documentation accordingly.

Can anybody offer any advice as to the correct steps to take so that I may protect myself from a judgment being filed against me at the first hurdle?

Any help or guidance would be deeply appreciated.

Thanking all in advance who may take the time to read this...

[tengo_suerte]

Re: Lowell portfolio i ltd vs tengo_suerte

***UPDATE***

I've now sent off the following recorded post:

To the Claimant (Lowell Portfolio I LTD) with a £1 postal order:

My name, address & postcode


Thursday, 23rd June 2016


Lowell Portfolio I LTD
Ellington House
9 Savannah Way
Leeds, West Yorkshire
LS10 1AB




Dear Sir/Madam


Re:− Account Reference XXXXXXX (as per claim particulars)


Please treat this letter as a formal request for you to supply a copy of my Consumer Credit Agreement as is my entitlement under sections 77-79 of the Consumer Credit Act 1974.


I require you to provide me with a true copy, or reconstituted copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit.


Your obligation also extends to providing me with a statement of account. I enclose a £1 postal order, which represents payment of the statutory fee payable under the Consumer Credit Act. I understand that a copy of my credit agreement should be supplied within 12 working days from the date of this letter.


If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189.


I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.


Yours faithfully,




My Name

I've also forwarded a copy of the above, plus the below to the Claimant's solicitors (Lowell Solicitors LTD) via recorded post.


My name, address & postcode


Thursday, 23rd June 2016


Lowell Portfolio I LTD
Ellington House
9 Savannah Way
Leeds, West Yorkshire
LS10 1AB




Dear Sirs,


Claim Number: XXXXX


Request for documents mentioned in a statement of case under CPR 31.14


On 18/06/2016 I received a County Court claim from yourselves of which I have acknowledged receipt indicating my intention to defend in full.


To enable me to file my defence and/or counterclaim, I require inspection of documents you mention in your statement of case ahead of filing my defence on 9th July 2016.


1. Agreement
2. Default Notice
3. Assignment


In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.


You should note that this claim has not yet been allocated to a specific track and the provisions of CPR 27(2) are of no effect. Had your claim not been issued through CCBC the Claimant would have been obliged to attach copies of the documentation upon which it relies to the Particulars of Claim. I, as Defendant, am entitled to see the documents on which the Claimant relies and which you will have to produce at trial. Disclosure at this stage will enable me to fully plead my case and further the Overriding Objective.


You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter.


If you require more time in which to comply with this request you must tell me in writing and confirm your agreement to an extension of the time allowed for me to file my defence as allowed under CPR 15.5 so I may notify the court.


For your information and records I enclose a copy of the formal request for a copy of the credit agreement relating to this claim, pursuant to the Consumer Credit Act 1974, which has been posted to your client with the statutory fee of £1 today, 23rd June 2016.


I look forward to hearing from you.


Yours sincerely


My Name

I have backdated the letters to the date I filed the Acknowledgment of Service, I have no idea whether that was a good idea or not - obviously the postal date will show today.

I now have to file my Defence, by tomorrow.

I've rehashed another defence statement from another thread (see below), but am unclear about points 9 and 11, since the Claimant has not been given enough time to reasonably respond to my request for documentation.

Any help or pointers would be really appreciated!


Claim No: XXXXX


Between


Lowell Portfolio I LTD Claimant


and


My Name Defendant


Of My Address


1: I received the claim XXXXX from the County Court Business Centre on 18^th June 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 for a Credit Card agreement regulated under the Consumer Credit Act 1974.


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


5. The particulars of claim fail to state when the agreement was entered into.


6. The Claimants statement of case states that the account was assigned from Capital One to Lowell Portfolio I LTD on 31/08/2013. The Defendant does not recall receiving notice of this assignment.


7. It is denied that Capital One 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.


8: On the 8^th July 2016 I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors Limited. I requested the Claimant provide copies of the Agreement, Default Notice, Notice of Assignment and Formal Demand.


*****9. Lowell Solicitors Limited has not sent any of these documents to me.*****


10. On the 8^th July 2016 I sent a formal request for a copy of the original agreement to Lowell Portfolio I LTD pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.
*****11. The Claimant has failed to comply with s 78 (1) Consumer Credit Act 1974 and by virtue of s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.*****


12. 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.


13. 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.


14. 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.


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


Statement of Truth


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

[Guest]

Re: Lowell portfolio i ltd vs tengo_suerte

I hope it's not too late to reply, I see there's been no response and your defence was due today. You may well be in luck because it's the weekend. To clarify, once the deadline to submit a defence expires, the claimant is able to request default judgment against you, that's not done automatically by the court.

Have you done anything about submitting your defence yet?

• When did you take out this Cap One card? Do you recall how you applied for it? Was it online? a mailshot?
• Did you send a CCA request in the past? Even if it was months or years ago?
• Did you dispute this account in any way?
• Was there PPI you think could have been mis-sold?
• Did you receive a default notice when you stopped paying? A defective one is usually much better than just arguing you didn't receive one, provided you've got your own copy to check for compliance.
• Did you receive a notice of assignment?

[tengo_suerte]

Re: Lowell portfolio i ltd vs tengo_suerte

I hope it's not too late to reply, I see there's been no response and your defence was due today. You may well be in luck because it's the weekend. To clarify, once the deadline to submit a defence expires, the claimant is able to request default judgment against you, that's not done automatically by the court.

Have you done anything about submitting your defence yet?

• When did you take out this Cap One card? Do you recall how you applied for it? Was it online? a mailshot?
• Did you send a CCA request in the past? Even if it was months or years ago?
• Did you dispute this account in any way?
• Was there PPI you think could have been mis-sold?
• Did you receive a default notice when you stopped paying? A defective one is usually much better than just arguing you didn't receive one, provided you've got your own copy to check for compliance.
• Did you receive a notice of assignment?

Hi Spiegs,

Thank you for your response!

Unfortunately I'm unclear on most of your questions.. the answer is just "I don't know". I have been out of the country for several years and changed my correspondence address several times.

I can say that I have never before sent any CCA requests to ANY creditors nor to my knowledge challenged or disputed any credit accounts.

I have not yet submitted any defence, is the deadline midnight tonight? If I submit the defence tomorrow, is it likely to be accepted assuming the Claimant's solicitors are not back at their desks until Monday morning?

I am unfortunately not in a position to settle the outstanding amount, and so feel as though my best POA is to challenge the claim in the hope of avoiding a judgment on the chance the Claimant is not able to provide the required documentation - or could I just be digging a deeper hole?? Have I in-fact missed my chances of filing such a defence due to my delay in sending CCA/CPR letters?

[charitynjw]

Re: Lowell portfolio i ltd vs tengo_suerte

Hi tengo_suerte

A bit lastminute.com, lol!

If you did not at least acknowledge the claim within 14 days of service, the claimant may have already got a default judgment.

As the '33' days for your defence falls on a weekend (Sat 9th July), you should be allowed to present it by close of court business on Monday (4pm).........as long as there's no judgment yet.

Have you tried checking on MCOL?

[tengo_suerte]

Re: Lowell portfolio i ltd vs tengo_suerte

Hi tengo_suerte

A bit lastminute.com, lol!

If you did not at least acknowledge the claim within 14 days of service, the claimant may have already got a default judgment.

As the '33' days for your defence falls on a weekend (Sat 9th July), you should be allowed to present it by close of court business on Monday (4pm).........as long as there's no judgment yet.

Have you tried checking on MCOL?

Hi Charitynjw,

Very lastminute, and arguably down right stupid.. :/

I did acknowledge the claim via MCOL, hence the 33 days.

Do you know if I can still submit the above defence in light of my delayed request for CCA etc?

[charitynjw]

Re: Lowell portfolio i ltd vs tengo_suerte

Hi Charitynjw,

Very lastminute, and arguably down right stupid.. :/

I did acknowledge the claim via MCOL, hence the 33 days.

Do you know if I can still submit the above defence in light of my delayed request for CCA etc?

Your CPR request gives the claimant an opportunity of a 28-day extention.

You could ask them if they're willing, & if yes, inform the court accordingly.

[Amethyst]

Re: Lowell portfolio i ltd vs tengo_suerte

Yes you could ask for an extension if you are okay ringing/emailing them on Monday, but have defence prepped to be in before 4pm Monday if they refuse.
If they agree then you will need to inform the court ( http://legalbeagles.info/forums/show...filing-defence info on extension )

Amended defence a little for you to account for time issues.


1: I received the claim XXXXX from the County Court Business Centre on 18th June 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 for a Credit Card agreement regulated under the Consumer Credit Act 1974.

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

5. The particulars of claim fail to state when the agreement was entered into.

6. The Claimants statement of case states that the account was assigned from Capital One to Lowell Portfolio I LTD on 31/08/2013. The Defendant does not recall receiving notice of this assignment.

7. It is denied that Capital One 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.

8: In order to find out more information, I have sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors Limited. I requested the Claimant provide copies of the Agreement, Default Notice, Notice of Assignment and Formal Demand and I have also sent a formal request for a copy of the original agreement to Lowell Portfolio I LTD pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee. I await a response from the Claimant.

10. 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.

11. 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.

12. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence.

[tengo_suerte]

Re: Lowell portfolio i ltd vs tengo_suerte

OK, should I contact the Claimant or the Claimant's solicitors to request an extension?

Under what grounds should I request the extension - just that I need more time to prepare my defence? Or explain that I am waiting for the CPR request to be fulfilled?

It would seem to me that it is in neither the Claimant's nor their solicitors interests to grant me an extension, as without it they (are very likely?) to obtain the judgment they're seeking, so I'm not really sure how to best articulate that to them over the telephone...

In the (likely?) event that they decline I can submit the above amended Defence and hope for the best?

Thank you both so much for your input!

[tengo_suerte]

Re: Lowell portfolio i ltd vs tengo_suerte

Update:

I have received no response to either the CCA request, nor the CPR letter.

I have now received DQ (N180) from the court with a covering letter that appears to be directed at the Claimant, it states:

"TAKE NOTICE THAT:

1. This is now a defended claim.

The Defendant has filed a defence, a copy of which is enclosed.

2. It appears that this case is suitable for allocation to the small claims track.

If you believe that this track is not the appropriate track for the claim, you must complete box C1 on the Small Claims Directions Questionnaire (Form N180) and explain why.

3. You must by 19 August 2016 complete the Small Claims Directions Questionnaire (Form N180) and file it with the court office."

The defence is not enclosed as stated, just a copy of form N180.

Could anybody kindly offer some direction as to the best course of action for the next steps?

Should I agree to mediation despite not receiving the requested documentation?

Many thanks.

Also:

My defence was received by the courts on the 11th July, my understanding is that the Claimant then has 28 days to respond taking us up to the 8th August? ..else the claim with be stayed? As that date has passed and all that is stated on MCOL is 'DQ sent' on the 2nd August - should I assume that the Claimant has responded to my defence directly to the court?

Apologies for rambling, this is all just a little alien!

TS