Lowell Portfolio Ltd v Studly

[warwick65]

Re: Lowell Portfolio Ltd v Studly

Well .... received this letter back today, looks like the extension for the defence has been declined!

Not necessarily a bad thing especially if you add a line about them covering the costs of your amended defence if they stump up the docs after the deadline.

Why, in all honesty do we give them longer to find the documents which I believe they should have before issuing a claim but in fact they rarely have and hope for a default judgement.
I believe the rules are changing next year which might account for what seems like a flurry of capital One claims at the moment.

Or maybe Lowell are seeking to maximise their assets for other reasons

[studly]

Re: Lowell Portfolio Ltd v Studly

If the court claim issue date is 15th March (post #1), I reckon that your defence is due latest 17th April.

Thanks for that [MENTION=5553]charitynjw[/MENTION] , on double checking the dates you are right. I guess I must have just added 28 days to 15th March and not allowed for the 5 days for service :-)

- - - Updated - - -

Not necessarily a bad thing especially if you add a line about them covering the costs of your amended defence if they stump up the docs after the deadline.

Why, in all honesty do we give them longer to find the documents which I believe they should have before issuing a claim but in fact they rarely have and hope for a default judgement.
I believe the rules are changing next year which might account for what seems like a flurry of capital One claims at the moment.

Or maybe Lowell are seeking to maximise their assets for other reasons

Should I not respond with a letter pointing out that it hasn't yet been allocated to small claims yet then? Or is that just being a little pedantic?

[warwick65]

Re: Lowell Portfolio Ltd v Studly

Erm not sure. No harm done i guess. If you do keep a copy and get proof of postage.

[MENTION=87380]Diana M[/MENTION]

[studly]

Re: Lowell Portfolio Ltd v Studly

Good afternoon all! :-)

Further to my previous post re: responding to the last letter please could [MENTION=6]Amethyst[/MENTION] [MENTION=55034]nemesis45[/MENTION] [MENTION=5553]charitynjw[/MENTION] [MENTION=11177]Joanna[/MENTION]_c [MENTION=61310]diana[/MENTION]_m or fellow pro's scribble their thoughts if possible?

Sorry, I understand how busy you must be ....

[Diana M]

Re: Lowell Portfolio Ltd v Studly

Further to my previous post re: responding to the last letter please could @Amethyst @nemesis45 @charitynjw @Joanna_c @diana_m or fellow pro's scribble their thoughts if possible?

I understand how busy you must be ....

I see my name is on that long list of members you've tagged for urgent help, so let me see if I can explain things to you (it's a weekend so that's why you'll find volunteers busy).

I've looked at the letter you posted up last night. It seems harmless to me and doesn't require a response.

You appear to have sent a CPR 31.14 Request to the Claimant's solicitors and they appear to say they won't comply until later on in the proceedings. Fair enough, that's their prerogative.

They say they don't want an extension of time for you to file your Defence unless you do in which case they'll entertain your request for one. Fair enough.

From what I can see your Defence deadline has been predicted to be 17th April. If documents haven't been forthcoming by that date then I'm guessing your Defence will reflect that.

Has there been any response to your s.78 CCA Request yet?

It's a difficult concept to grasp (I mean that in a good way) but the absence of documents from the Claimant can actually be a good thing. Maybe, just maybe, they haven't got them or they didn't exist in the first place.

They need documentation to prove their claim. Be happy that they haven't got any (yet)

Di

[Diana M]

Re: Lowell Portfolio Ltd v Studly

I would prefer to correspond in order to confirm an extension of 28 days, plus also hint that I believe it will be statute barred.

The last payment to this account from my partner's record was circa Nov 2010 for £1 according to her bank statements

Personally I wouldn't have written another letter following your CPR 31.14 Request for documents which they intend to rely on to prove their case.

This is a £900 claim so I doubt the court will be interested in awarding costs to either party unless their conduct has been totally unreasonable.

I now see the draft of what you intended to send in post # 13. I do hope you didn't "hint" at the debt being SB in the final version.

Why give them anything to work with?

Less is more with litigation.

Di

[Diana M]

Re: Lowell Portfolio Ltd v Studly

no acknowledgement or payment has been made while at her current address, which occurred in Apr 11 but is unable to recall exact details of the CCA in question or associated negotiations.

What "associated negotiations" ?

If she entered into any written dialogue about repayment of the debt that may have a negative impact on the SB argument if the negotiations were to be perceived as an acknowledgement of the debt despite no actual payments being made.

Were these negotiations carried out on a Without Prejudice basis?

Di

[studly]

Re: Lowell Portfolio Ltd v Studly

Hi Di,

Hopefully I didn't spam everyone by my tags earlier, was a just a little unsure which way to head. Thank you so much for getting back to my anyway! :-)

No response from Lowell at all yet re: CCA request, nor any acknowledgement from JD Williams regarding the SAR. The only correspondence has been between my partner and Lowell Solicitors (Cohen Cramer).

I can see that no response can be a good thing, it just feels a little like we're working blindly without sight of the facts behind this claim, or that it may even be statute barred?

I have already helped drafted a defence for her using the templates provided, based on nil response for documents so will just hold out for another week or so.

I was (mistakenly) under the impression that they were obliged to provide the documents requested following a CPR 31.14 request so that a claim could be defended.

Thanks again for your help, and apologies for seeming a little pushy in getting a response. Best Wishes, studly

[Diana M]

Re: Lowell Portfolio Ltd v Studly

I can see that no response can be a good thing, it just feels a little like we're working blindly without sight of the facts behind this claim, or that it may even be statute barred?

I have already helped drafted a defence for her using the templates provided, based on nil response for documents so will just hold out for another week or so.

I was (mistakenly) under the impression that they were obliged to provide the documents requested following a CPR 31.14 request so that a claim could be defended.

Thanks again for your help, and apologies for seeming a little pushy in getting a response.

You weren't being pushy at all.

I just didn't want you to think that your plea for help had been overlooked overnight just because some of us had to do the washing and supermarket shopping (well at least that's what I was doing most this weekend!).

I also wanted to help you to realise that the onus of proving the claim rests with the Claimant. If you think the debt may be Statute Barred then add that to your Defence then the Claimant will have to prove you wrong.

That way you're being proactive not reactive

Di

[warwick65]

Re: Lowell Portfolio Ltd v Studly

Thanks for responding Di. I wasn't sure about the cpr follow up, that was the received wisdom in the old days but I see perfectly your reason

As you say

Less is more.

Something i I am not personally good at.

Greetings from the land of solidarity , how appropriate

[studly]

Re: Lowell Portfolio Ltd v Studly

I now see the draft of what you intended to send in post # 13. I do hope you didn't "hint" at the debt being SB in the final version.

Why give them anything to work with?

Less is more with litigation.

Di

Di, unfortunately yes it was hinted at in the letter sent back to CC, but no reference was made to that in their response. I see your point with regards to information divulgence.

[studly]

Re: Lowell Portfolio Ltd v Studly

What "associated negotiations" ?

If she entered into any written dialogue about repayment of the debt that may have a negative impact on the SB argument if the negotiations were to be perceived as an acknowledgement of the debt despite no actual payments being made.

Were these negotiations carried out on a Without Prejudice basis?

Di

Enquiries were made at the time (Circa mid to late 2010) with regards to setting up a DRO with a number of creditors due to circumstances at the time, but it was never actually implemented due to the potential loss of their family car. Not sure if they were made without prejudice.

[Diana M]

Re: Lowell Portfolio Ltd v Studly

Enquiries were made at the time (Circa mid to late 2010) with regards to setting up a DRO with a number of creditors due to circumstances at the time, but it was never actually implemented due to the potential loss of their family car. Not sure if they were made without prejudice.

If this was in 2010 it won't impact on any assertion you make that the debt was Statute Barred before the claim was issued in March 2017 *phew*.

Di

[studly]

Re: Lowell Portfolio Ltd v Studly

Well, the defence submission is only a few days away .... eek!

The claim was issued on 15 March, which means Bank Holiday Monday (17th April) is the 33 day deadline. Is it advisable to submit by 4 pm on Thu 13th April in this case, due to the long Easter weekend?

A defence has been drafted anyway, and a redacted version is detailed below. Pretty please could I ask that you awesome people on LB have a look and provided some much needed feedback, specifically with regards to the defences submitted and the order of merit. Many thanks in advance :-)

****************

Defence Draft
-----------------------------------------------------------------------------------------------

1. I received the claim ####### from the Northampton County Court on ## ### 2017.

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 JD Williams Catalogue account, an 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 statement of case fails to state when the agreement was entered into.

6. I am of the belief that the alleged debt is statute barred under the provisions of The Limitation Act 1980. The Claimant is put to providing unequivocal proof that the alleged debt is not statute barred else the claim should be struck out.

7. The Claimants statement of case states that a Default Notice, pursuant to s.87(1) of the Consumer Credit Act was served. I do not recall receiving this Default Notice. The Claimant is required to prove that a compliant Default Notice was served.

8. The Claimants statement of case states that the account was assigned from JD Williams to Lowell Portfolio I Ltd on ## ### 2012. I do not recall receiving notice of this assignment.

9. On the ## ### 2017 a formal request was sent to Cohen Cramer Solicitors for inspection of the following documents mentioned in the statement of case under CPR 31.14;

a. Agreement
b. Default Notice
c. Notice of Assignment
d. Deed of Assignment.

10. Cohen Cramer Solicitors have not provided me with any of these documents.

11. On the ## ### 2017 a letter was sent to Cohen Cramer Solicitors, requesting an agreement in writing to a 28 day extension (as allowed under CPR 15.5) to the time period allowed for the filing of my defence, pending receipt of the documents requested.

12. The response received to this request indicated that this extension was denied.

13. On the ## ### 2017 a formal request for a copy of the original agreement was sent to the Claimant, pursuant to s.78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

14. The Claimant has failed to comply with s.78(1) Consumer Credit Act 1974 and by virtue of s.78(6) of the Consumer Credit Act 1974 cannot enforce the agreement.

15. Under CPR 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. I request that the court orders the Claimant to provide the documents requested in order that I may fully plead my case else the Claim should be struck out.

17. In the event that the documents are received from the Claimant, I will then be in a position to amend my defence and would ask that the court orders the Claimant to bear the cost of this.

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

[studly]

Re: Lowell Portfolio Ltd v Studly

Well, the defence submission is only a few days away .... eek!

The claim was issued on 15 March, which means Bank Holiday Monday (17th April) is the 33 day deadline. Is it advisable to submit by 4 pm on Thu 13th April in this case, due to the long Easter weekend?

A defence has been drafted anyway, and a redacted version is detailed below. Pretty please could I ask that you awesome people on LB have a look and provided some much needed feedback, specifically with regards to the defences submitted and the order of merit. Many thanks in advance :-)

Good Morning! With just a few days before submission is due (if indeed it needs to be in by Thursday), please could I ask that someone cast their eye over the defence draft? Have removed the flip flip referencing between myself and 'the defendant' and kept it to 'I' or 'me' instead. Many thanks