Lowell- court tomorrow

[nemesis45]

Re: Lowell- court tomorrow

I have about 30 minutes before I need to leave, wish me luck ! I will report back later

Good Luck and Best Wishes Lilu!!

nem

[pt2537]

Re: Lowell- court tomorrow

Okay, so after having the judgment set aside you only found out what the claim was for when you received the claimants witness statement. Take with you your letters asking Lowell what it was / notes of telephone conversations etc and tell the judge you believe the claim to be statute barred under the Limitations Act 1980 as the documents that have been sent by the claimant demonstrate, that you haven't had an opportunity to enter a defence to the claim and believe you have a good chance of success in your defence of statute barred. Also point out that the claimant hasn't provided the original agreement or terms and conditions of the account... so you're unable to check the account debt was incurred properly under the terms.... could also mention you wish to check the terms for fairness ( how the charges behave etc). Are there any issues with the actual amount claimed? Was the overdraft legitimate or made up of charges ? What issues were there at the time you ditched the bank account with the overdraft debt ?

There may be questions as to why the claim was sent to the wrong address originally - although that should already have been dealt with at the set aside, it may come up regards the statute barred - did the original creditor have your updated address when the account closed ? Were other records kept updated ? Were you aware of any debt outstanding on the overdraft at the time of closing. Things like that - you want to show that the claimant could have issued at the right address at the time of the original claim.

@Diana M for any tips on getting the Judge to allow the claim to proceed and Lilu to enter a full defence ( even if it buys time to sort out negotiating a settlement if there isn't actually a defence once it's looked into )

My slight concern is that you didn't submit a Witness Statement after you received the court date hearing letter - so I wouldn't bring up that theirs arrived the morning after the deadline at this point. Check through that hearing letter to see what was ordered.

If
no evidence has been filed and its a trial then the Court generally wont allow you to adduce evidence that hasnt been served. That being said, if the account is an overdraft, then the Court is mandated by EU law to assess the terms for fairness, and in those circumstances id raise the Foster Burnell judgment, if the Judge refuses to assess, then its open to appeal irrespective of any evidence from the consumer

[Amethyst]

Re: Lowell- court tomorrow

The hearing letter ordered any documents and witness statements be served no later than 4.00 pm on the 24/2/17. The original amount is a fair bit lower than that as hbos were adding £ 150 at a time as charges. At the time I was having personal problems and had to move to help my sister look after my mum who was having cancer treatment. I told hbos that I would start having problems at the time and I ended up arguing with my branch manager and gave them the card back and told them I wanted to close the account. They let direct debits go after this and then it snowballed a bit with charges etc. I honestly didn't know what it was for and my original witness statement was basically that ! I only got any information on the 25/2/17 from lowells WS
thankyou

Okay lets hope you can get the chance to defend the claim at this stage then and you should have a pretty good defence. You'll just have to keep to the had no info until after WS's were due to be exchanged and want the chance to defend now you know it is a disputed account.

Best of luck today xxx

[Amethyst]

Re: Lowell- court tomorrow

If
no evidence has been filed and its a trial then the Court generally wont allow you to adduce evidence that hasnt been served. That being said, if the account is an overdraft, then the Court is mandated by EU law to assess the terms for fairness, and in those circumstances id raise the Foster Burnell judgment, if the Judge refuses to assess, then its open to appeal irrespective of any evidence from the consumer

Indeed. Need to get it held up today though first. As the claimant wouldn't inform Lilu anything whatsoever about what the claim was for hopefully as a LIP the Judge could be sympathetic and adjourn to allow a defence to be filed? fingers crossed anyway.

[Celestine]

Re: Lowell- court tomorrow

And even if the Judge is reluctant to consider EU Law, there is this major recent piece of legislation:

The Consumer Rights Act 2015

71Duty of court to consider fairness of term

(1)

Subsection (2) applies to proceedings before a court which relate to a term of a consumer contract.

(2)

The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it.

(3)

But subsection (2) does not apply unless the court considers that it has before it sufficient legal and factual material to enable it to consider the fairness of the term.

[Lilu]

Re: Lowell- court tomorrow

Well the judge totally sided with lowells, said there was no reasons to give me any time and just upped the judgement to £2500 ! I told him I thought it was unfair and I'd had no time to dispute anything at all till recently and I hadn't seen any evidence etc apart from a photocopy of a bank statement, he also said it wasn't statute barred ! He wouldn't accept that lowells continued to tell me I had no account with them and there would be no action etc. At the end he basically said it's £2500 and I had 14 days to pay ! While the weasel from lowells was sat sniggering �� What can I do from here ? I just think it's really unfair that after owing Halifax around £800 it's now £2500 and I've no chance to do anything ! Is there anything I can do from here ?
Thanks

[pt2537]

Re: Lowell- court tomorrow

Well the judge totally sided with lowells, said there was no reasons to give me any time and just upped the judgement to £2500 ! I told him I thought it was unfair and I'd had no time to dispute anything at all till recently and I hadn't seen any evidence etc apart from a photocopy of a bank statement, he also said it wasn't statute barred ! He wouldn't accept that lowells continued to tell me I had no account with them and there would be no action etc. At the end he basically said it's £2500 and I had 14 days to pay ! While the weasel from lowells was sat sniggering �� What can I do from here ? I just think it's really unfair that after owing Halifax around £800 it's now £2500 and I've no chance to do anything ! Is there anything I can do from here ?
Thanks

yes,there is

Appeal

[Lilu]

Re: Lowell- court tomorrow

Thanks @pt2537
do I just fill in another n244 and appeal that the judgment is unfair ? What would my argument be ? Also he said I had 14 days to pay ! Can I stop that in any way ?
thanks

[Celestine]

Re: Lowell- court tomorrow

Sounds great in principle, but not something she can do alone. Can either of our consumer credit solicitors firms take a look? Im presuming the word appeal wasn't muttered by anyone at the actual hearing today?

So sorry for this outcome Lilu, very frustrating and patently wrong.

[Lilu]

Re: Lowell- court tomorrow

I did ask if I could appeal but was just ignored ! I'm stunned that I wasn't even listened to regarding anything at all. All the judge said was that I had 14 days to pay and Lowell would be in touch

[nemesis45]

Re: Lowell- court tomorrow

Sounds great in principle, but not something she can do alone. Can either of our consumer credit solicitors firms take a look? Im presuming the word appeal wasn't muttered by anyone at the actual hearing today?

So sorry for this outcome Lilu, very frustrating and patently wrong.

Sounds just up PT's street !!

nem

[Lilu]

Re: Lowell- court tomorrow

Any advice on where I go from would be great ! Otherwise I think I may have a big problem paying

[pt2537]

Re: Lowell- court tomorrow

Any advice on where I go from would be great ! Otherwise I think I may have a big problem paying

Appeals from a small claims case ought to be a little more straight forward, but they can be a pain, there is no way you can tell really.

It shouldnt be too hard to do in theory, you would need an appellants notice, grounds of appeal and a skeleton argument although in small claims they dont always insist on them.

You would ideally need a note of the judgment too, this would be something that could be obtained from the other side as they were represented, so would have taken a note i would have thought

[Lilu]

Re: Lowell- court tomorrow

Thank you for your reply!
What could be my grounds for appeal? Would it be that the judgement was made unfairly? That is was made in error? That I had no knowledge of the debt to be able to defend myself? That I wasn't given an opportunity to even defend the debt let alone against the ccj that was made today?
Also, what is an appellants notice? Is it a form?
Im guessing that Lowells will be sending me the notice in due course as that is what the judge stated.

[Celestine]

Re: Lowell- court tomorrow

Tom Brennan, our 'go to' consumer barrister thinks this could be 'interesting'.