Lowell VS Richisup

[richisup]

Hi,

My partner has received A claim form from the county court business centre (see attached) which indicates those lovely folks from Lowell Portfolio would like to claim £611 on behalf of O2. My partner says she had an O2 contract back in 2011 but she thought the debt was paid off and the contract cancelled. She changed address shortly afterwards so I suspect one of two things 1: O2 have sent a cancellation fee to her old address which was not forwarded on to her new address or 2: the next tenant has used her identity to fraudulently take out a new contract.

Either way I am not willing to pay this fine totaling £742 until I know exactly what I am paying for!

So the details:

The claim was issued on 20/09/2016
“The Agreement” was assigned to the claimant on 29/02/2012
My submitted online acknowledgment of service on 24/09/2016 at 14:23:35

I have also signed up to Experian credit to run a full report which interestingly shows no indication of my partner ever having any dealings with O2.

My next step is to send this letter to Lowell Portfolio requesting more information:

Your name
Your address
Your postcodeDate
Claimants name
Claimants address
Claimants postcode
Dear Sirs,
Claim Number: XXXXXX

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

On 23/09/2016 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.

1. Agreement – account reference:
2. Default Notice
3. Assignment dated 29/02/2012 and a copy of notification to defendant

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 procedure 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 document(s) 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.
I look forward to hearing from you.

Yours sincerely

Your Name



So I think the above is all in order – please correct me if I am wrong?

Big thanks to @nemesis45 for your work (a true war hero)
Good luck to @Dragonswife and @Marra2 – hope all goes well

[charitynjw]

Re: Lowell VS Richisup

Hi richisup & welcome to LB

Strange that a Default Notice is mentioned, but it is on the Claimant's PoC.
Is this a regulated agreement?

[richisup]

Re: Lowell VS Richisup

Hi charitynjw and thanks.

Unfortunately this is all the paperwork we have

[EXC]

Re: Lowell VS Richisup

I've deleted your other post and given [MENTION=87380]Diana M[/MENTION] a shout.

[richisup]

Re: Lowell VS Richisup

So I have a little more information today - there is now a red flag marked on Experian credit report which shows a debt held with Lowell for £560, it details the account started xx/01/2011 and defaulted 11 months later. This ties in with the actual account held so yes there is a real debt unpaid however the amount seems a little inflated.


That being that I would like to check what direction if any should I take


a: Send my prove it letter (stamped and ready to go)? - Worst case loose and pay the full amount of £742, best case pay nothing if the claimant fails to show
b: Call the claimant and ask if they would consider withdrawing the CCJ by offering them a cash sum? I am not sure if this is an option so feel free to put me straight - this would at least reduce the amount which I would be happy with.


Also I should note I am not interested in monthly payment plans, I have been stung in the past by paying fines twice which almost killed me so would opt to pay in full


Oh and please don't feel you need to tip toe your words - I am open to suggestions and will take full responsibility on my choices


Kind Regards
richisup

[EXC]

Re: Lowell VS Richisup

Bumping.

[Amethyst]

Re: Lowell VS Richisup

You can either defend, or negotiate settlement, so both your options are valid. Sometimes you can get them down by 50% negotiating - particularly if they don't have the documents in hand. But as you don't believe this is actually a valid debt then I wouldn't be happy paying anything until I knew what it had come from.

If you did negotiate settlement with them you want a tomlin order to put the claim on hold until you have paid it and their written agreement to discontinue or inform the court the claim is settled and no judgment should be entered.

When you come to do your defence detail that the account was closed in 2011/2012, it had been paid in full and has never appeared on your credit file, until the claimant themselves added it. You dispute that this is your debt and put the claimant to strict proof of the debt being owed and of amount claimed. You could also add this information to the CPR request letter as tbh Lowell sending you the agreement means not a lot as you know the original debt existed its that there is any debt owing on it that is in dispute.

It might be worth a call to O2 and asking if they have any records at all of the account and the closure process, terms etc that lead to any debt remaining.

When your partner moved house did she have post forwarded for a while afterwards ?

[richisup]

Re: Lowell VS Richisup

Thanks Amethyst,

I have been in contact with O2 this evening but unfortunately they are unable to trace any account records using the information I could provide - i.e my partners name, address (inc. parents address), email or Lowell's reference number. I know an account existed frustratingly we don't have any other info such as a mobile number or account number.

The post was not forwarded on as my partner did not have any reason to do so and I would imagine they traced our current address using the electoral roll which my partner signed during the whole brexit thing

So not much to go on really, tomorrow I will send off the prove it letter and probably try again with O2 on the phone as they must have something!

Thanks again

[richisup]

Re: Lowell VS Richisup

Looks like my prove it letter in my first post has been received by Lowell on the 3rd - I therefore expect a response by the end of Monday the 10th.

I will keep this post updated

Thanks all

[richisup]

Re: Lowell VS Richisup

Ok I am a bit unsure now what to do now as I only have this week to sort this (deadline approaching).

I received a letter from Lowell today which included the original o2 account number so I was able to speak to o2 who acknowledged the account number and I passed the security questions. However the only information they could provide was a start date - xx/01/2011 as they only hold records for 2 years. They were unable to even say what the mobile number was - interesting to find they held the security details mind you. I have attached a copy and included below for ease, I really appreciate you help on this one

Dear….

We confirm receipt of your letter requesting an agreement for the above account.
As this account is a telecommunications account it is not regulated by the Consumer Credit Act 1974 therefore the original creditor is not obliged to provide you with a copy of the agreement. However we have requested the default notice from our client. Once we receive a response we will respond accordingly.
A County Court Claim has been issued on 20 September 2016, you should ready this fully and reply to the claim. If you are admitting the debt in full and wish to pay by instalments, our team are available to complete the admission form response with you over the telephone if you prefer. They can be contacted by calling the above number between 8:00am and 8:00pm Monday to Friday or between 8:00am and 2:00pm Saturday.
Failure to respond to us within 14 days may result in us applying for a County Court Judgment _(CCJ) in default to be issued against you with terms set out by the court. This would mean further costs and could make it difficult for you to obtain credit, mortgages or even some employment whilst it remains unsatisfied on your credit file for a maximum of six years.
We trust this clarifies our position and look forward to hearing from you.

[richisup]

Re: Lowell VS Richisup

Bumping as I am worried as I may miss the deadline on this

[Amethyst]

Re: Lowell VS Richisup

Issue date 20th Sept, so Defence would be due for the 23rd October at the latest so you are okay timewise xx

[Amethyst]

Re: Lowell VS Richisup

So your defence would be that you believe you had an account with O2, it was paid off and closed in 2012, you have contacted O2 and they have been unable to locate any information, therefore as the claimant has also failed to provide any details of how the amount claimed has arisen, the date of any agreement, nor any copy of an agreement, nor a default notice nor any notice of assignment, you are unable to plead effectively as to the claim. You can adapt the standardDefence Exampleto suit - removing mention of the CCA 1974 s.77-79 as that doesn't apply. Do you want to have a bash at it and post a draft up here xxx

[richisup]

Re: Lowell VS Richisup

Bashing away... will post a draft soon

[richisup]

Re: Lowell VS Richisup

Ok, I admit I am no Plato when it comes to writing these things so I hope everything is in context....



IN THE COUNTY COURT BUSSINESS CENTRE

CASE No: #####

BETWEEN:

Lowell Portfolio Ltd
CLAIMANT
-and-

########
DEFENDANT

----------------------------------------------------------------------------------------------------------
DEFENCE




Preliminary Matters

1. The Claimants claim form fails to adequately set out the nature of the Claim.

2. The Defendant avers that the Claimants pleadings are an abuse of process. The Claimants pleadings are lacking detail, there are no details as to when the alleged default occurred, the degree of default, despite requests for information from the Defendant, the Claimant has not provided any details as to how the sums claimed have accrued. Accordingly the Defendants contend that the pleadings are wholly inadequate for a contested matter and that the Claimant should be required to plead its case coherently and accurately as required by the CPR 16 and PD 16. The Defendants reserve the right to replead their defence should the Claimant replead its claim adequately

3. The Defendant accepts the claim was issued in the Northampton County Court Bulk Centre and that there are restrictions on pleading. However the bulk centre rules clearly state that if you cannot plead in the allowed number of characters then you should not use the Bulk Centre or in the alternative the Claimant was at liberty to issue and set out that particulars were to follow.

The Claim

4. The Claimant states the claim relates to an agreement with O2 (UK) Ltd under account reference ###### but without further details the Defendant is unable to identify such an account within his own records.

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

6. The Claimant has failed to produce and has not disclosed any documents relating to their claim to the Defendant.

7. No date of inception of the account has been given

8. No default notice has been received by the Defendant

9. The Defendant does not recognise the debt from the details given and is unable to ascertain whether there is any amount owing to the original creditor or the claimant

10. The particulars of claim state that the account was assigned/purchased by Lowell Portfolio Ltd on ##/02/2012 and notice given to the Defendant. The Defendant has no knowledge of receiving notice of this assignment.

11. The Defendant has contacted O2 requesting further information the using details given by the claimant however they have no record of such debt or notice.

12. Upon the Claimant clarifying matters set out above the Defendant reserves her position to amend this Defence further. The Defendant shall seek the costs of the amendments from the Claimant due to the Claimants failure to plead its case adequately.

13. The Defendant has also sent a request for inspection of documents on the ##/09/2016 to Lowell Portfolio mentioned in their statement of case as allowed under CPR 31.14. The Claimant has not provided these documents.

14. For the avoidance of doubt the Defendant requires the Claimant to plead effectively and disclose the legible documents upon which the Claim is based. In the event the Claimant fails to replead, then the Defendant reserves the right to apply for whatever orders it deems fit including an order striking the Claim out.

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.

16. Should the Claimants adequately evidence the debt the Defendant reserves the right to amend his defence.



Default Notice

17. It is denied that the original creditor O2, 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.

18. Due to the Claimants failure to allow the Defendant to inspect the Default notice alluded to within the Claim form the Defendant is prejudiced.

19. Accordingly the Defendant reserves his position to amend this Defence with the costs of the same paid by the Claimant if the Claimant provides a copy of the Default Notice.

Notice of sums in arrears.

20. It is denied that the Claimant has served notice of sums in arrears pursuant to s86B Consumer Credit Act 1974. A notice of sums in arrears is a condition precedent on enforcement and therefore the Claimant is not entitled to enforce the agreement.

Conclusion

Accordingly, the Defendant avers that

21. The Claimant has failed to plead properly in this matter and has failed to provide any information relating to this debt.

22. The Claimants attempts at claiming post judgement interest are an attempt at unjust enrichment. The Defendant refers to s74 County Courts Act 1984 and section 2 of the County Courts (Interest on Judgement Debts) Order 1991 as a statutory bar on the Claimants claim to interest. Furthermore no contract entitling the Claimant to post judgement interest has been adduced in evidence and accordingly there is no entitlement to post judgement interest. Interest being owed as claimed is denied.

23. Therefore, the Claimants Claim should be dismissed and the Claimant should pay the Defendants costs.



Statement of Truth

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



Signed …………………………………………

Dated .................................................. ....


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Thanks again