Lowell v TheRossitron

**MIKE770** · 19th September 2016, 10:33:AM

Re: Lowell v TheRossitron

) The Agreement was later assigned to the
Claimant on 19/06/2009 and notice given to
the Defendant.

- - - Updated - - -
@Diana M @Amethist

**Rossitron** · 19th September 2016, 10:38:AM

Re: Lowell v TheRossitron

Originally posted by MIKE770 View Post

) The Agreement was later assigned to the
Claimant on 19/06/2009 and notice given to
the Defendant.

- - - Updated - - -
@Diana M @Amethist

So they say

**Amethyst** · 19th September 2016, 11:05:AM

Re: Lowell v TheRossitron

Hiya xx

It sounds like you have done everything right so far on this.

It sounds like this company you used to help you sort out debts really made things worse. Maybe gave you a bit of a breathing space monthly outgoings wise though. Payplan will just send proportional payments to creditors so don't actually help get things sorted out.

In your CPR request I presume you have asked for a copy of the default and assignment notices?

You are coming up on your defence date ( about 24th Sept ) so should start putting that together.

Are there any other issues with the debt you recall ? Was the overdraft all spends or made up of charges ? Has it grown much since you ditched the account ?

**Rossitron** · 19th September 2016, 11:05:AM

Re: Lowell v TheRossitron

Is possession of required documents relevant in this case then? (Sorry I typed this before seeing the response Amethyst)

This is the letter sent:

REQUEST FOR INFORMATION IN RESPECT OF YOUR COUNTY COURT CLAIM NUMBER: ####
In respect of your account number: #####
I have received a recent court claim from your organisation. In order to file a defence I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.
The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.
1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.
2. All records you hold on me relevant to this case, including but not limited to:
a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor
b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with HBOS.
c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.
d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.
f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998.
h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.
i. Copies of statements for the entire duration of the credit agreement.
3. I require your organisation to provide written confirmation that states clearly whether you currently hold an original signed Consumer Credit Agreement, or whether you do not hold an original signed Consumer Credit Agreement pertaining to myself.
For the avoidance of doubt, an original signed Consumer Credit Agreement is just that; not an application for credit and not a reconstructed or microfiched document from other sources but indeed the original signed document purporting to be signed by myself.
Please note that until such times as a legally enforceable, original Consumer Credit Agreement can be produced and a copy sent to me by return, then this letter is not an acknowledgement of debt and this account will remain in an unenforceable state protected in line with s.127 (CCA1974).
4. Any other documents you seek to rely on in court.
I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence.
Yours sincerely,

I couldn't say for sure if there were charges but I would think so as the debt company incident was 2006 and payments didn't start until 08/09. Also, are they entitled to the s69 interest?

**Amethyst** · 19th September 2016, 11:08:AM

Re: Lowell v TheRossitron

Yes - they need to evidence that they own the debt, have the right to claim it, and that you actually owe it in the first place. Regardless of whether it is an overdraft, loan, credit card or invoice debt.

**Rossitron** · 19th September 2016, 11:18:AM

Re: Lowell v TheRossitron

Thank you, so if they don't send the required information is this a good enough defence?

Also, if there were charges applied to the overdraft, how does this affect the sum claimed?

**Rossitron** · 21st September 2016, 15:07:PM

Re: Lowell v TheRossitron

Received a letter from Lowell Solicitors today:

"Thank you for your letter.

We have requested that the original creditor send us a statement of your account , a copy of the agreement and the default notice. These will be forwarded to you upon receipt. A copy of the notice of assignment has been enclosed with this letter.

If you would like us to provide transcriptions of all telephone calls and copies of all the notes on the account, you will need to send us a data subject access request. There is also a £10.00 fee for this payable by cheque.

Costs and fees have been added to the account at a total of £150.00. Interest has also been added at a total of £89.29.

At this stage you should still respond to the claim form issued to you on 24th August 2016. If you do not respond to the form within 14 days, a county court judgement may be entered against you in default."

Is this all I need for a defence?

**Amethyst** · 21st September 2016, 15:53:PM

Re: Lowell v TheRossitron

That's quite a fair reply to the letter you sent ( where did that come from btw? - it is a SAR for bank charges not a CPR request )

They will need to provide the statement of account etc to you to evidence the debt.

The Assigment Notice they have sent you - is that from HBOS to Lowell ? Do you have any recollection of whether this debt went elsewhere before Lowell ? Maybe on your old payplan payment statements ?

So you need to be writing your defence really, based on lack of information and evidence - so have a look at | Defence Example | and take out the bits relating to the CCA 1974 s.77-79 etc. Then we have a decent starting point to add in overdraft fees / disputes etc.

**Rossitron** · 21st September 2016, 18:51:PM

Re: Lowell v TheRossitron

The letter came from Lowell solicitors today. They sent me a copy of the alleged notices from Lowell to me and HBOS to me but nothing from HBOS to Lowell. The notices were back to back on one piece of paper and looked printed, not a photocopy with any original signatures etc.

I don't think the debt went anywhere else as I thought they were collecting on behalf of Halifax not the owners of the debt.

Payplan didn't actually handle any debts, just helped me contact creditors to make arrangements.

**Rossitron** · 22nd September 2016, 15:37:PM

Re: Lowell v TheRossitron

How is this defense statement?

1: I received the claim ######## from the Northampton County Court on 29/08/16.

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

3: This claim is for a bank account 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 to 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 HBOS to the claimant on 19/06/09. The Defendant does not recall receiving notice of this assignment.

7. It is denied that HBOS 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 and they have confirmed that they are not in possession of any default notice.

8. It is denied that the claimant sent annual statements on the account as required.

9: On 09/09/16 I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors, which was received by them on 12/09/16. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

10. On 09/09/16 I sent a formal request for a copy of the original agreement to Lowell Solicitors pursuant to section [77 or 78] of the Consumer Credit Act 1974. The claimant stated in a responding letter dated 21/09/16 that they were not in possession of the original agreement, default notice or statement of account.

11. 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.

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. It is denied that the claimant is entitled to 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 £0.245, but limited to one year being £89.29 due to County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3).

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 defense, and would ask that the Claimants bear the costs of the amendment.

16. 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.

Should I be making a counterclaim for money already paid or is that pushing it?

**Amethyst** · 22nd September 2016, 15:50:PM

Re: Lowell v TheRossitron

I've taken out the para's relating the to CCA request as it doesn't apply here.

And no, you have no counterclaim.

Originally posted by Rossitron View Post

How is this defense statement?

1: I received the claim ######## from the Northampton County Court on 29/08/16.

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

3: This claim is for a bank account 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 to 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 HBOS to the claimant on 19/06/09. The Defendant does not recall receiving notice of this assignment.

7. It is denied that HBOS 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 and they have confirmed that they are not in possession of any default notice.

8. It is denied that the claimant sent annual statements on the account as required.

9: On 09/09/16 I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors, which was received by them on 12/09/16. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

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. It is denied that the claimant is entitled to 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 £0.245, but limited to one year being £89.29 due to County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3).

12. 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.

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

14. 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.

**Rossitron** · 23rd September 2016, 10:50:AM

Re: Lowell v TheRossitron

Defense filed yesterday, I'll update the outcome once received.

**Rossitron** · 18th October 2016, 12:10:PM

Re: Lowell v TheRossitron

I received a questionnaire from the court (and a copy of Lowell's questionnaire) regarding mediation. I still haven't received any credit agreement or other information requested from Lowell, but it seems they are requesting mediation rather than a hearing. I can't see the point in mediation, but any advice is welcome.

**nemesis45** · 18th October 2016, 12:41:PM

Re: Lowell v TheRossitron

Originally posted by Rossitron View Post

I received a questionnaire from the court (and a copy of Lowell's questionnaire) regarding mediation. I still haven't received any credit agreement or other information requested from Lowell, but it seems they are requesting mediation rather than a hearing. I can't see the point in mediation, but any advice is welcome.

A judge would have reviewed the case so far without going in depth, and has stated that he/she believes the claim is suitable for mediation Lowell will always tick yes even if they know mediation can't take place because they have failed to comply with the CCA request or have nothing at all to back up the claim.

You should tick yes too.

nem

Lowell v TheRossitron