Lowell Portfolio I Ltd v dasher13

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

successful mediation usually results in a Consent (Tomlin Order) which states only that which has been agreed between the parties nothing in regards to how said agreement was reached.

Successful Mediation results in a legally binding Mediation settlement not a Tomlin Order. There is no court order as a result of Mediation.

If either party break the terms of the settlement then they can return to court to seek an order which can be for the full amount originally claimed not the reduced amount agreed at Mediation (if that was the basis of the settlement). The Claimant is also able to obtain a CCJ at that point.

Di

[Amethyst]

Re: Lowell Portfolio I Ltd v dasher13

Sorry Nem, Mediation doesn't result in a Tomlin/Consent order - just a discontinuance, settlement or installments under a CCJ - If the documents did turn up and they were all kosher there is always an opportunity to negotiate directly with the claimant for settlement/installment arrangements under a Tomlin/Consent order thus avoiding the CCJ, with the claim held by the court incase of default on any arrangement as security. I really wouldn't worry too much about Mediation. It's just part of the game of chess that these types of claims have become.

Sorry - crossed with Di. ( said same thing though ( ish) )

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

It is also a misconception that you have to agree to mediation for fear of being sanctioned, a lack of documents to enable you to form any view of settlement is a reasonable excuse to refuse mediation as there is nothing to discuss.

I agree mediation is confidential however this did not seem to be the case coming from the judge, and appeared to either know a case I am not aware of or was doing it off his own back. without any specific knowledge of a case, for the purposes of mediation being confidential, when does that confidentiality kick in. Is it at the time when the mediator calls you first and then talks to you, or is it at the time you agree you are happy to proceed with the mediation? If it's the latter then telling the mediator you have no documents and no evidence which the claimant bases their claim would not fall within confidentiality, and perhaps the judge looked at it this way, I don't know.

Anyway, don't want to side track, but I don't think it changes my position that you must agree to mediation hoping something comes of it or to try and show willingness to mediate, when guidance does make clear its not suitable if you don;t have what you need and you can't be penalised for that. I've been in court a number of times where there has been an issue raised because one party refused to mediate on the basis of lack of documents and evidence (oral agreements are a different story) and it has been accepted both in county and attended a couple in the High Court that it is a reasonable excuse, albeit sometimes they did suggest that it would have been appropriate to obtain strike out/summary judgment.

It is of course Dasher's choice though whichever way it goes.

[MIKE770]

Re: Lowell Portfolio I Ltd v dasher13

one judge cannot always be right - on two occasions one judge has got it all wrong and ignored the obvious law/legislation and facts of life/business practices.

- - - Updated - - -

one judge cannot always be right - on two occasions one judge has got it all wrong and ignored the obvious law/legislation and facts of life/business practices.

but let us not forget these threads are here to assist a member not a debating society of who is right or wrong! onward and forward.

[nemesis45]

Re: Lowell Portfolio I Ltd v dasher13

How strange seeing that I have taken part in mediation on behalf of others and Tomlin/consent orders have been the outcome.

nem

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Thank you all so much - so, so very grateful.

I have sent the forms and will post again with any updates.

Can't really put into words how much it means to have your support.

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

Can't really put into words how much it means to have your support.

You just have

Di

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hello everyone. I haven't posted for a while as there was nothing to report.

That all changed today though.

I have received a Notice of Allocation to the Small Claims Track letter from the County Court.

It states that a District Judge has allocated the claim to the small claims track after considering the statements and questionnaires.

The date is 5th December.

However, I am really confused as it states that documents each of the Parties must send to each other and the court (that they will rely on at the hearing) must be no later than 14 days before the hearing. This is not possible as the letter from the court was dated the 22nd Nov and received today so that leaves only 11 days for when I got the letter (12 from the day of the letter) until the hearing. It is also only 8 working days if you include today.

Is this right? What does it mean? Does it mean I cannot submit any documents - surely that can't be as that is just not fair/right.

I am now really worried as this has confused me and I have no idea what to do or say on the 5th Dec.

Just as a bit of an update the only correspondence I have received from Lowell since I made the data protection request, the CPR 31.14 and the formal request for a copy of the Consumer Credit Agreement under sections 77-79 of the CCA 1974 are:

1-11-16 --- a letter from Lowell with their completed Directions Questionnaire
13-9-16 --- letter from Lowell apologising for not providing all of the documents I had requested and stating they had been requested and would be sent to me

They have sent me some documents in response to my data protection request but these are simply transcripts of emails and letters about another debt they handled 5 years ago that was settled and closed. There is nothing at all about the account this is all over other than internal transcripts stating I had sent letters requesting documents.

Also it seems Lowell ticked to agree to mediation as I did - but I have not had any contact from anyone about mediation.

So basically I am begging for help. I do not know what to do. I am so worried about the issue over the 14 days. Have the courts made a mistake? Should I contact them? If I have to get documents to Lowell and the courts what do I send them? Lowell have sent me nothing so how can they prove anything and how can I know if what they are taking me to court about is mine? Do they not have to legally provide these documents given that I requested?

Also just in case some of you are not aware I put in a counterclaim when I defended - not sure if this changes what I have to do on the 5th Dec.

I am so worried - so confused - can anyone please advise and help me? I would be so so so grateful.

dasher

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

I'll give [MENTION=71570]R0b[/MENTION] a nudge to make sure your post is seen, dasher.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Thank you- really appreciate it.

The one thing that has occurred to me is that I have not had anything from Lowell so this whole thing about sending documents to each other and the court no later than 14 days has not been adhered to by them either. So confused.

[Danny Butts]

Re: Lowell Portfolio I Ltd v dasher13

Hi Dasher,

I'm a n00b as well, but having read through your thread and done a little reading around the rest of this subforum, the fact that there are no documents to exchange is good news.*

If you dont have time to exchange documents, neither do they, and they dont have any anyway.

However the date is obviously wrong.

My advice is to ring the court in the morning and find out if there has been a typo or just a genuine cock up with a calendar that slipped out unnoticed.

Is this the exact wording of the letter?

"documents each of the Parties must send to each other and the court (that they will rely on at the hearing) must be no later than 14 days before the hearing."

Do you have a scanned/photograph copy you could post up?

There is a thread showing samples in the stickies at the top of the forums front page but the Notice of allocation is missing

http://legalbeagles.info/forums/showthread.php?72437-The-court-process-for-cca-debt-generally-letters-forms-etc

The stickies and the "won" threads are a great resource for following the steps to beating the opposition, and seeing how quickly they can capitulate. Its also a fantastic weight off the mind to follow someone elses progress from nervous wreck to WINNER!

Anyway, I'm sure someone with way more experience will be along to answer your specific questions.

Good luck.

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

Hi Danny Butts

This one is slightly more complex than most of the other threads as there is also a counter-claim in play.

[nemesis45]

Re: Lowell Portfolio I Ltd v dasher13

Hello everyone. I haven't posted for a while as there was nothing to report.

That all changed today though.

I have received a Notice of Allocation to the Small Claims Track letter from the County Court.

It states that a District Judge has allocated the claim to the small claims track after considering the statements and questionnaires.

The date is 5th December.

However, I am really confused as it states that documents each of the Parties must send to each other and the court (that they will rely on at the hearing) must be no later than 14 days before the hearing. This is not possible as the letter from the court was dated the 22nd Nov and received today so that leaves only 11 days for when I got the letter (12 from the day of the letter) until the hearing. It is also only 8 working days if you include today.

Is this right? What does it mean? Does it mean I cannot submit any documents - surely that can't be as that is just not fair/right.

I am now really worried as this has confused me and I have no idea what to do or say on the 5th Dec.

Just as a bit of an update the only correspondence I have received from Lowell since I made the data protection request, the CPR 31.14 and the formal request for a copy of the Consumer Credit Agreement under sections 77-79 of the CCA 1974 are:

1-11-16 --- a letter from Lowell with their completed Directions Questionnaire
13-9-16 --- letter from Lowell apologising for not providing all of the documents I had requested and stating they had been requested and would be sent to me

They have sent me some documents in response to my data protection request but these are simply transcripts of emails and letters about another debt they handled 5 years ago that was settled and closed. There is nothing at all about the account this is all over other than internal transcripts stating I had sent letters requesting documents.

Also it seems Lowell ticked to agree to mediation as I did - but I have not had any contact from anyone about mediation.

So basically I am begging for help. I do not know what to do. I am so worried about the issue over the 14 days. Have the courts made a mistake? Should I contact them? If I have to get documents to Lowell and the courts what do I send them? Lowell have sent me nothing so how can they prove anything and how can I know if what they are taking me to court about is mine? Do they not have to legally provide these documents given that I requested?

Also just in case some of you are not aware I put in a counterclaim when I defended - not sure if this changes what I have to do on the 5th Dec.

I am so worried - so confused - can anyone please advise and help me? I would be so so so grateful.

dasher

You are going to have to prepare your witness statement and submit is within the timescale. This is your story of the debt/history and the claim.

Phone the court office this morning about the dates.

nem

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

Morning,

The first thing I would like to say for future reference is that, it is never best to wait for the court to give you instructions on what to do next. The same format is almost always the case in small claims in that you must send exchange documents you want to rely on 14 days before trial and witness statements. Although the Order is dated late and you do't have the 14 day period it should not prevent you from preparing your case early on - both claimants and defendants often misunderstand how long it can take to prepare for any trial and the more prepared you are, the more convincing you will sound to the judge.

Presumably Lowell have only just received the notification from the court too, I suspect that they may want an adjournment because the 14 day window has elapsed and have not had time to prepare for the case and consider all the evidence but also nobody has exchanged anything. If you are of the same opinion you could agree to an adjournment and for the trial to be re-listed in 28 days time and the parties to exchange 14 days before the trial date, that could give you some more time to prepare and the downside being you have to wait a bit longer.

You are still going to have to prepare your witness statement though and gather your evidence, which you should do so as soon as possible.

Did you send the defence / counterclaim to Lowell and the court or just the court?

I am also confused on the subject access request you made, did you make the SAR to Lowell or Capital One? If it was to Lowell I am not sure why you did that as I think it should have been sent to Cap One to see if they still hold any agreement or other relevant information on you.

I think you should call the court anyway and explain the situation but you may have to turn up on the 5th December anyway to explain what's gone on.

The counterclaim is relatively straightforward, your argument is based on the fact that Lowell have sent no documents to you since the claim has been issued despite repeated requests. You should refer the judge to the page and paragraph which is referred to in your counterclaim and explain that it is an abuse of process for Lowell to issue a claim against you when they have no basis for doing so and the lack of evidence/response to request for the agreement and other information suggests that is the case. They may have then attempted to obtain the relevant documentation "hoping that it may turn up" during the course of proceedings but as Justice Cooke has stated in his decision (Nomura v Granada) that is not acceptable. Claimants are required to at least take some pre-proceedings investigations to establish they necessary grounds to bring a claim and formulate the particulars - Lowell in this case clearly haven't done this.

The alternative argument is that the case is brought maliciously, and refer to the Supreme Court Case and the quotation. To establish malicious prosecution, you need to show:

(1) there was no reasonable and probable cause for bringing the claim
(2) the claimant brought proceedings maliciously

The first part can be satisfied where the claimant has no proper case to bring before the court. Here no evidence/documents from Lowell at all despite the amount of time they have had, proves they have no proper case to bring and so this test is easily satisfied.

As for the second part, this is where the claimant has deliberately misused he court process. You could argue here that this is also satisfied because Lowell knew that they had no documents or evidence which proves that there was no foundation to the claim yet issued proceedings anyway in the hope that you would settle the agreement or not dispute the claim and. Not sure how useful but if there are any statistics from the courts on how many discontinues Lowell have done over the last 12 months or so could also be inferred that those discontinues are likely to be the fact that they know there is no foundation for bringing the claim and to avoid any costs in doing so. Their aim is to pressure litigants who do not know the court system and to obtain judgments to enforce a claim which they cannot substantiate.

You need to print off both cases below and take a copy if possible for the judge

Willers v Joyce - https://www.supremecourt.uk/cases/do...4-judgment.pdf

Nomura v Granada - http://www.bailii.org/ew/cases/EWHC/Comm/2007/642.html

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Thank you all for replying...still so reassuring to know help is out there. I am really sorry that this post is a little long.

Danny - yes the document from the court definitely says both Parties have 14 days to get witness statements and documents to the court and this is not possible as the date of the letter to the hearing date is less than 14 days. By the way is the 14 days period working days or just 'days'?

Thank you R0b (again) - I think I messed up with the SAR request as I did send it to Lowell not Capital One.

I have phoned the court and am waiting for a call back. I have also emailed them.

I have put another request in writing to Lowell for the documents they have failed to send. I know they will not reply but I want to show the court that I was still persisting right to the end and giving Lowell every opportunity to send the documents (which I believe they are legally obliged to do) and that Lowell simply did not respond.

I will put together my witness statement but I have to be honest I do not know how it should be set out. Is there a specific way it must read? Is there a template or an example on here that I can use? Also if I do one would anyone be willing to look over it for me?
Sorry if it is obvious where templates can be found on here - not used to all this. Is there anything specific I should say or any way I should say it? Do I point to the cases and the judgements that you have provided links to R0b?

In regards to the counterclaim I will follow your advice to the letter (obviously) R0b. Do I need to refer to my defence and counterclaim in my witness statement and refer to page numbers etc where the counterclaim points are listed? In my counterclaim I pointed to Willers v Joyce and stated that the reasons I brought the counterclaim was because Lowell failed to comply with a number of provisions under CPR, did not disclose reasonable grounds for bringing a claim and did not have the requisite knowledge to bring such a claim and therefore it amounts to an abuse of process. So do I refer to this in my counterclaim/defence and then include the cases you have provided links to and direct the judge to relevant pages in those cases?

In regards to my witness statement and documents that I will rely on at the hearing should I include all of my correspondence to Lowell including proof of delivery (my letters were all received and signed for)? Do I need to include all the documents I have received from Lowell? This amounts to letters starting in December 2015. I received nothing before then.

However, despite ignoring my other requests for documents Lowell did respond to my Data Protection request (this request was sent the dame day as my other requests for documents and is the only one that have responded to). They provided me with the letters I have sent to them, their letters to me since December 2016 and a letter from 16th July 2015 (one I did not receive) which is a 'statement of your account' letter.

There is nothing else at all - none of the documents I have requested they send to me as part of my CPR and CCA request and which they have used to bring the case. How does that make sense? By responding the data protection request and not providing these documents does it not show that they do not have them??

In their covering letter to me which was sent with the documents they sent after the data protection request they state that they have "searched our records and enclose the following information"...then state they have included "Copy of the information that we received from your original creditors at the point the debts were assigned to us" --- but there are no such documents included. Nothing from Capital One, no notice of assignment, no default notice etc - nothing.

What was interesting about the stuff they sent me after the data protection request is that that sent an internal document which is essentially an overview of the case. It has the case file reference no for the court and the date their claim was issued and served by the court. It then states that I acknowledged the claim but am not defending it and then in a section for 'judgement' says 'payment schedule: judgement by instalments' - as if the case has been heard and judgement made. Just seemed odd to me but may just be what they hope to achieve I guess.

Thanks again for all of your help and thank you for bearing with me and reading such a long post. You don't know how grateful I am.

dasher