Setting aside a CCJ - Lowell

[Amethyst]

Re: Setting aside a CCJ - Lowell

That sounds like a good start

We have had no POC and are making assumptions on what the original Lloyds debt is,
Lloyds have not provided the information requested Via SAR, only a basic account statements,
We have not received any correspondence from Lloyds saying the debt had been sold to Lowell,
Lowell have not provided CCA and CPR even after requested, check the template defence and use bits from that for yours
The debt we believe it is, is Statute barred as it was closed in 2009 and no payments or withdrawals have been made since 2007.

Defence Layout - as per this - http://legalbeagles.info/forums/atta...1&d=1407491762

So example ( VERY ROUGH TO GIVE YOU A STARTING POINT )

1: The Defendant did not receive the claim [Claim Number] from the [Name of Court - often Northampton or Salford] County Court or the Claimant. The Defendant has still not received a copy of the original Particulars of Claim despite requests to the Claimant. probs expand this to state about having the judgment set aside at hearing and this defence is submitted pursuant to the order of District Judge XXXX dated xxxxxxxxxxxxxxxx

2. The Defendant is embarassed and is unable to plead effectively to the claim. This Defence is based on the the Defendants own detective work as there has been no information at all provided by the Claimant.

3: This claim appears to be for an agreement regulated under the Consumer Credit Act 1974 held between Lloyds Bank Plc and the Defendant. The Defendant has held various products with Lloyds Bank Plc in the past.

4: The Defendant has sent a formal Subject Access Request to Lloyds Bank Plc as original creditor and is awaiting a full response.

5. With regards to any debts owed to Lloyds Bank Plc, which is denied, it is contended by the Defendant that any liability will be statute barred by virtue of section 5 of the Limitations Act 1980. The Defendant changed their banking in 2009 and has had no further contact with the bank and has not acknowledged nor made payment to the alleged original creditor nor any third party. The Defendant has checked her own records and can not see any payments made to, or withdrawals made or received from the bank after xxxxxxxx 2007.

6: On the [Date] I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to [Claimant's Solicitor]. I requested the Claimant provide copies of the [Agreement, Default Notice and Notice of Assignment] .

7. [Claimant's Solicitor] has not sent any of these documents to me.

8. On the [Date] I sent a formal request for a copy of the original agreement to [Claimant] pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.

9. 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.

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. 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.

12. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, 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.



Signed …………………………………………

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

[Madcookie]

Re: Setting aside a CCJ - Lowell

Thanks [MENTION=82993]CharlieP[/MENTION], I wrote in to lloyds requesting the SAR with in the first week of the judgement being set aside, have heard nothing back as of yet, and i imagine its too late to write in again with the defence needing to be posted tomorrow

Hi [MENTION=87380]Diana M[/MENTION],

We have had nothing to indicate they are using a solicitors so far. The person who came to the hearing was introduced as their "representative" like an agent my Mrs told me. We can put a request in the post tomorrow to the solicitors address that [MENTION=6]Amethyst[/MENTION] posted earlier in the thread (One of the addresses we sent a CPR to) if you think its a good idea? But it will get there about the same time as our defence now, so maybe no use?

With regards the CPR Request, we've had nothing back.

I'm about to start her defence, need to post it tomorrow as I'm away Friday-Sunday and will not get an opportunity to do it then.

As a brief outline of what i intend to state:

• We have had no POC and are making assumptions on what the original Lloyds debt is,
• Lloyds have not provided the information requested Via SAR, only a basic account statements,
• We have not received any correspondence from Lloyds saying the debt had been sold to Lowell,
• Lowell have not provided CCA and CPR even after requested,
• The debt we believe it is, is Statute barred as it was closed in 2009 and no payments or withdrawals have been made since 2007.

Do you think this is all correct? can you give me any pointers? I will post up her defence tomorrow before lunch.

Oh and do we just print it off normally, citing claim number on it? I assume a signature is required too?

Kind regards

Anthony

[Diana M]

Re: Setting aside a CCJ - Lowell

I see no harm in you asking the Claimant's solicitors for a copy of the claim form. Do this in writing asap. If you get no response then you may wish to refer to that in your Defence. Also email a copy of your letter to them due to the time restraints.

Did you go ahead with my earlier suggestion to get the POC from the solicitors?

And did you receive any response to your premature CPR 31.14 Request?

Di

[CharlieP]

Re: Setting aside a CCJ - Lowell

You'll need to request the SAR, along with the £10 fee directly with their DSAR team. The details can be found half way down HERE

Under the Data Protection Act you have the right of access to your personal data. The Act allows us to charge a fee of £10 for this service. If anything is inaccurate or incorrect, please let us know and we will correct it. For further details on how to request a copy of your information, please write to the:
DSAR Unit
Lloyds Bank
Customer Service Recovery
Charlton Place, C57
Andover, SP10 1RE

[Madcookie]

Re: Setting aside a CCJ - Lowell

Good morning [MENTION=87380]Diana M[/MENTION], [MENTION=6]Amethyst[/MENTION].

On the N244 form we asked them in section 3 to set aside judgment because she had never received any court summons or letters stating that money was owed to Lowell. The first she knew was found out on a credit report 2 years later.

The defence we put in (section 10 on N244) to gain the set aside was:

"I moved to ###### in 2012, starting work in September 2012. My credit report even shows this 6 months before the CCJ was issued.
The letters I have since received, say I originally owed Lloyds this debt. I don't recall having any accounts with them since 2007 when i left the country to go traveling for 6 months."

That was it with regards a defence.

We still have no POC even with 2 emails, 1 phone call and a court visit this week. I will ask her to call again this morning.

I never got in to the hearing last time and we never requested a POC at the hearing, our mistake.

With regards Lloyds, the Mrs went in yesterday and asked for this information. It was not part of the SAR, we have heard nothing back from that letter. What we got was just the monthly account statements from 2006 till it closed 2009. They didn't charge for this information. Do i need to ask her to go in again today? Would they be able to give the required SAR information same day? I was hoping to write her defence today and post it tomorrow...

Kind regards

Anthony

[Amethyst]

Re: Setting aside a CCJ - Lowell

Madcookie, You know when you went into the bank to get the information on the account, was that actually you picking up the SAR information requested? Just thinking that, if it was, I'd be writing again stating that you'd like the notes on account/screen notes etc as well....as they may clear up some of the confusion around the closure of the account that may or may not have occurred.

[Amethyst]

Re: Setting aside a CCJ - Lowell

Ahh perfect. Mad isn't it that you can go through a set aside hearing and have it granted without ever having had sight of the original claim - it just makes no sense for the court not to simply provide a copy from their system when the application is made.

Far too many Bank Holidays this year

Here

[Diana M]

Re: Setting aside a CCJ - Lowell

you've been ordered to file and serve your defence following the set aside - have you had the order in writing from the court yet ?

It's uploaded in post # 27 but it doesn't show when I re-quote the post

The OP has until 1st May to file their Defence which is Bank Holiday Monday so Tuesday 2nd May by 4 pm may be an option for them.

There's still hope that they can get the POC emailed to them before then.

We were successful in having it set aside and were told we must have our defence in by 4pm on the 1st of May.

. . . I've attached the redacted set aside order

Di

[Amethyst]

Re: Setting aside a CCJ - Lowell

She may not have any evidence, but there will be screen notes or something - maybe an appt with the customer manager etc ? which SHOULD show up on a full SAR disclosure. The issue is unless she went in to close it with £750 odd cash in hand to pay up the overdraft she wouldn't have been able to close it. There would have had to be some discussion around how to repay that debt before they'd allow closure. So I'm not sure it will help unless she can remember anything else about the conversation at the bank when she tried to close the account?

So you've been ordered to file and serve your defence following the set aside - have you had the order in writing from the court yet ? Blooming tricky without the POC or any documents at all, but we just put that.

Can you pop on here the text from your set aside app and any defence? you put in with that. Just to make sure everything tallies up.

Will give you a hand in the morning xxx

Oh statute barred would be roughly....

The Defendant contends that any alleged debt is statute barred by virtue of paragraph 5 of the Limitations Act 1980 in that there has been no payment or acknowledgment of the debt for at least six years prior to the issuance of the original claim in this case.

which refers to this

Actions founded on simple contract
5 Time limit for actions founded on simple contract.

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

[Madcookie]

Re: Setting aside a CCJ - Lowell

Thanks for the quick reply [MENTION=6]Amethyst[/MENTION].

The £715.05 was the account overdrawn balance at the end of that month, it had an overdraft limit of £750 so at that time still with in the agreed limit. The statements up till June 2009 show monthly applied interest leading to the closing balance of £958.60, which I guess would be right if the account was never closed properly. The fact it doesn't show any money going in around the time she says she closed it is weird but it's that long ago she has nothing to prove she went in and closed it.

As for other withdrawals, there is only 1 other before that, which was a withdrawal of £400 in September 2007. No more before that. Both were over the counter.

So if we are right I can argue that it is statute barred now as she has not had anything to do with this account since it was closed in 2009. How do I go about arguing this?

And do we just send the defence in a letter to the court/Lowell? We have no forms.

Kind regards

Anthony

[Amethyst]

Re: Setting aside a CCJ - Lowell

Okay. I think it needs looking into further then - did you send a formal SAR into Lloyds ?

Seems likely this is for the same account ( although they still should evidence that) as a closing balance of £950 would easily turn to £1200 with dca's and a court claim.

The balance of £715.05 was overdrawn ? To make the withdrawal of £100 was that within the Overdraft authorised limit ? (is that stated on the relevant statement ? )

If she went to close the account and there was an overdrawn balance of £700 odd then they wouldn't have allowed her to close the account down until that was repaid. Particularly if that was already over any overdraft limit.

I know it was a long time ago but do the transactions made around that time make sense and jog any other memories about why the account was to be closed ?

If the account was closed in June 2009 and no contact/acknowledgment/payment was made to do with the account since then then yes it would be statute barred.

[Madcookie]

Re: Setting aside a CCJ - Lowell

[MENTION=87380]Diana M[/MENTION], [MENTION=6]Amethyst[/MENTION],

Hi both

My partner went into Lloyds today and got their information with regards the claim. lets just say it was not what we expected.

There was no evidence of the account being closed, quite to the contrary, it was open up to June 2009. We have all the statements from jan 2007, upto June 2009, when it appears to have been transferred to a debt collection department, with an outstanding balance of £958.60. No mention of Lowell there though.

The last time it appears she has made any in/out of the account was a withdrawal of £100 on 16th October 2007, which left the balance at £715.05, other charges were interest up till the account was closed.

Now we know this does it change our defence? She is adamant she went in to lloyds 2007/2008 and closed the accounts, yet the evidence doesn't back this up and she has no way of proving it.

What do we write as her defence?

She has had no letters from Lloyds/Lowell showing the debt was sold/transferred. The account was closed 2009, which is over the 6 years required for it to be Statute Barred. Is this correct and would this be a valid defence?

We have to write it up and post it by Thursday at the very latest i would guess, so not a lot of time to do this.

We have been in to the court too today and the said we have to email for the POC. We did this yesterday and have heard nothing back yet, so still don't know what Lowell are claiming for.

Kind regards

Anthony

[Madcookie]

Re: Setting aside a CCJ - Lowell

It also appears that she may have told the court that it was an overdraft (in front of Lowells' representative). Does she recall doing that and does she recall what the representative said in response (if he did)? Was it agreed in court (common ground) that it was an overdraft?

If it's been established in court that it was an overdraft then it's possibly futile to send the CCA Request now. I was looking to throw a curved ball especially if Lowells didn't know what the balance outstanding was for.

Di

I'm not sure is the honest answer. even if she did say it was an overdraft, she is only making an assumption surely as we still do not know what the original debt is for?

[Diana M]

Re: Setting aside a CCJ - Lowell

I'm not sure what a WS is so i guess we don't have one.

She said that the DJ did say she may want for her defence to consider either statute barred, saying the claim is less than the amount asked for or that its not her debt (although he said this is probably not an option as she had said about her account with lloyds). This means they know its probably an overdraft as she said that is the only thing it could be, although we haven't put this in writing anywhere.

Sorry I should have said Witness Statement not just the initials WS.

I was asking to see if Lowells had sent you any clues/evidence about the claim if they had filed a WS in relation to your set aside Application.

I can only assume the DJ saw the POC because they should have been in his file/Bundle.

From what you say he gave some pointers as to what your wife might plead in her Defence but they could have just been hypothetical examples of the sort of things she could argue (if applicable).

It also appears that she may have told the court that it was an overdraft (in front of Lowells' representative). Does she recall doing that and does she recall what the representative said in response (if he did)? Was it agreed in court (common ground) that it was an overdraft?

If it's been established in court that it was an overdraft then it's possibly futile to send the CCA Request now. I was looking to throw a curved ball especially if Lowells didn't know what the balance outstanding was for.

Di

[Madcookie]

Re: Setting aside a CCJ - Lowell

I would suggest you send the CCA Request template used by members of this forum here >

http://www.legalbeagles.info/forums/...=7670#post7670

Di

I took the template from there, the lengthy version near the bottom of the first post. would you recommend the first template, the shorter one? I've attached what i have got to send if so...

As for the consent, we never spoke to Lowell at all before it was set aside, just the court through the N244 form. we had no correspondence after submitting that form other than the court setting dates.

Kind regards

Anthony