** WON ** STRUCK OUT - Court claim from Bryan Carter / Lowells

[mitty68]

I received a claim form from Northampton CCBC at the beginning of April courtesy of Bryan Carter/Lowells.

They got the claim in with literally days to go before it became statue barred (from reading around, this seems to be something they like to do nowadays). Prior to this I've spent the last year playing letter tennis with Lowells, denying the debt and asking for their proof (CCA, Deed of Assignment, Default notice).

They've sent me an illegible copy of the CCA (My signature is about the only thing that you can make out) and also the notice of assignment, but it looks like they can't provide the deed of assignment as I have stated in every letter that I will pay the debt if they can produce this (from what I've read, an assigned debt is not enforceable without the DEED of assignment).

The issue date for the claim was the 8th April and I submitted the acknowledgement of service on the 15th April. So I think I'm right in saying that I have until the 10th May to submit my defence. From reading other posts on here, the advice appears to be to send a CPR to Bryan Carter and a CCA request to Lowells? In the letter templates I've seen, the CPR requests ask for the notice of assignment rather than the deed of assignment - is there a reason for not asking for the deed of assignment?

So should I send off the requests today and wait, or do I also need to do something regarding the preliminary defence on the moneyclaim website?

Further info : This is an unsecured loan from late 2007 and it is under £10k so it will go to small claims track.

[mystery1]

Re: Court claim from Bryan Carter / Lowells

The reason is twofold. 1 It rarely gets sent. 2. Nobody does anything about it.

That does not mean it's wrong to ask far from it Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607,.pdf

A wrong assignment generally means the wrong claimant as they don't legally own it.

M1

[mitty68]

Re: Court claim from Bryan Carter / Lowells

2. Nobody does anything about it.

Do you mean that the judge doesn't care if there's no deed of assignment? I'm pretty sure that one of the laws says that it's required?

[FlamingParrot]

Re: Court claim from Bryan Carter / Lowells

I received a claim form from Northampton CCBC at the beginning of April courtesy of Bryan Carter/Lowells.

They got the claim in with literally days to go before it became statue barred (from reading around, this seems to be something they like to do nowadays). Prior to this I've spent the last year playing letter tennis with Lowells, denying the debt and asking for their proof (CCA, Deed of Assignment, Default notice).

Does this refer to your other thread here? http://www.legalbeagles.info/forums/...165#post333165

They've sent me an illegible copy of the CCA (My signature is about the only thing that you can make out) and also the notice of assignment, but it looks like they can't provide the deed of assignment as I have stated in every letter that I will pay the debt if they can produce this (from what I've read, an assigned debt is not enforceable without the DEED of assignment).

The issue date for the claim was the 8th April and I submitted the acknowledgement of service on the 15th April. So I think I'm right in saying that I have until the 10th May to submit my defence.

Yes, it's a total of 33 days from the date on the claim. :clock:

From reading other posts on here, the advice appears to be to send a CPR to Bryan Carter and a CCA request to Lowells? In the letter templates I've seen, the CPR requests ask for the notice of assignment rather than the deed of assignment - is there a reason for not asking for the deed of assignment?

Yes, that's what you'd normally do, bearing in mind they have 14 days to respond to the CCA request but they should respond to the CPR request in 7 days. BC never do, nor are they agreeable to extensions. Most people end up submitting an unless order to force disclosure, but you'll have to follow the process of sending the request, chasing, requesting an extension, etc. before you do. :typing:

So should I send off the requests today and wait, or do I also need to do something regarding the preliminary defence on the moneyclaim website?

Presumably you stated your intention to defend in full when you acknowledged service online, didn't you? You have the option to EITHER submit a defence there and then, or acknowledge service which gives you the extra 14 days to submit a defence.

Further info : This is an unsecured loan from late 2007 and it is under £10k so it will go to small claims track.

Yes, it will, however, the case hasn't yet been allocated, nor will it be allocated till you submit your defence.

Being from LATE 2007, you may find it much harder to challenge enforceability, since you no longer have the protection of s.127 that prevented the court from issuing an enforcement order.

[mystery1]

Re: Court claim from Bryan Carter / Lowells

Do you mean that the judge doesn't care if there's no deed of assignment? I'm pretty sure that one of the laws says that it's required?

I mean that going to court to get just the deed of assignment is too much to risk for the average Joe public.

M1

[mitty68]

Re: Court claim from Bryan Carter / Lowells

Does this refer to your other thread here? http://www.legalbeagles.info/forums/...165#post333165

Yes. The other debt became statute barred.

Yes, that's what you'd normally do, bearing in mind they have 14 days to respond to the CCA request but they should respond to the CPR request in 7 days. BC never do, nor are they agreeable to extensions. Most people end up submitting an unless order to force disclosure, but you'll have to follow the process of sending the request, chasing, requesting an extension, etc. before you do. :typing:

Presumably you stated your intention to defend in full when you acknowledged service online, didn't you? You have the option to EITHER submit a defence there and then, or acknowledge service which gives you the extra 14 days to submit a defence.

I stated my intention to defend in full. Just to check, the extra 14 days is added to the other 14 days - it's not 14 days FROM the acknowledgment of service?

Yes, that's what you'd normally do, bearing in mind they have 14 days to respond to the CCA request but they should respond to the CPR request in 7 days. BC never do, nor are they agreeable to extensions. Most people end up submitting an unless order to force disclosure, but you'll have to follow the process of sending the request, chasing, requesting an extension, etc. before you do.

Okay so I'll send off the letters tomorrow. As mentioned they have already sent me docs, but not an legible copy of the CCA and not the Deed of assignment. What does an "unless order" do exactly? If it forces them to provide documents, and they can't send me a legible copy of the CCA and the Deed of Assignment, can the case be thrown out? Regarding the illegible CCA, is this my best chance? It really is a terrible copy and non of the terms are readable, but I've heard they can "reconstitute" agreements and they may also have a much better copy or even the original somewhere?

[FlamingParrot]

Re: Court claim from Bryan Carter / Lowells

I stated my intention to defend in full. Just to check, the extra 14 days is added to the other 14 days - it's not 14 days FROM the acknowledgment of service?

The 14 days are ADDED, regardless of when you acknowledged, you have a total of 33 days.

Okay so I'll send off the letters tomorrow. As mentioned they have already sent me docs, but not an legible copy of the CCA and not the Deed of assignment. What does an "unless order" do exactly? If it forces them to provide documents, and they can't send me a legible copy of the CCA and the Deed of Assignment, can the case be thrown out?

You can only hope that would be the case, however, see M1's posts above with regards to the deed. Normally a notice of assignment would be considered acceptable.

Regarding the illegible CCA, is this my best chance? It really is a terrible copy and non of the terms are readable, but I've heard they can "reconstitute" agreements and they may also have a much better copy or even the original somewhere?

Yes, as per Carey v HSBC, they are allowed to reconstitute. My main concern here is that this is a post-April 2007 account.

[mystery1]

Re: Court claim from Bryan Carter / Lowells

An illegible copy for 31.14 is acceptable. It causes them other issues but not for 31.14.

M1

[mitty68]

Re: Court claim from Bryan Carter / Lowells

It causes them other issues but not for 31.14.

M1

Such as? It looks like that and the deed of assignment are my only chance.

I've just read Carey v HSBC - ffs why wasn't that appealed? "Oh we've not got an agreement, but it doesn't matter because we can just make one up anyway" :tinysmile_aha_t: Does the fact that it's assigned make any difference to that - can they reconstitute agreements that they were not even originally party to?

[mystery1]

Re: Court claim from Bryan Carter / Lowells

http://legalbeagles.info/wp-content/...Bachellier.pdf

Anyone can recreate them but it's tougher to make it "honest and accurate" if your records are not xactly comprehensive.

M1

[mitty68]

Re: Court claim from Bryan Carter / Lowells

An illegible copy for 31.14 is acceptable.

I find it hard to get my head around this part. If an illegible copy is acceptable, then taken to the extreme they could produce anything and say it's an agreement?

I understand that they can produce a reconstituted agreement, but surely that also has to be legible otherwise you could get some completely farcical situations.

[mitty68]

Re: Court claim from Bryan Carter / Lowells

I filed an N244 to try and get the documents off them and the deadline past today. The Order states

The claimant will be debarred from entering default judgment if it fails to comply with paragraph 1

Paragraph 1 basically ordered that BC comply with this section of a letter that I had sent to them, and included in my evidence bundle for the N244. It specifically stated that all 6 documents should be provided.

Pleasetreat this letter as my request made under CPR 31.14 for thedisclosure and the production of a verified and legible copy of eachof the following documents mentioned or implied in your Particularsof Claim:

1: the agreement.

2:the notice of assignment.

3: the deed of assignment.

4:the default notice.

5: the termination notice.

6:statement of account.

At the same time as filing the N244 I also made a s77-79 CCA1974 request to Lowells and copied BC in on the request.

A few days ago Lowells sent me the statement of account and an illegible copy of the agreement, via BC.

This does not fully satisfy the order, so do I now apply to have the claim struck out and then claim costs against BC, or will their original claim still continue?

[mitty68]

Re: Court claim from Bryan Carter / Lowells

Any advice on what to do next? I'm hoping I can put a letter together today and try and get this sorted asap. The main problem I have is the wording of the order:

The claimant will be debarred from entering default judgment if it fails to comply with paragraph 1

This is different from my draft order which basically said the claim would be struck out if they didn't comply. What is the difference between being "debarred from entering default judgement" and the case being struck out?

[mitty68]

Re: Court claim from Bryan Carter / Lowells

Okay I don't seem to be getting any help with the next course of action, so I'll chance it with what I've read on other threads.

Apparently if I don't dispute any documents I've been sent within 7 days, it's deemed that I accept them as authentic, so although I was sent documents as part of the CCA request, Bryan Carters letter didn't specify this and they could potentially say that they were partially complying with the CPR. Therefore I'll send a letter stating that I do not accept the illegible agreement as authentic and I will also point out that the order has been breached and the debt is now unenforceable.

I will request that they withdraw their claim and will include a list of my costs to date (N244 etc). I will give them 7 days to respond before I take legal action to recover my costs. Do I need to inform the court that they have breached the order?

I'm still worried about the wording of the order, "The claimant will be debarred from entering default judgment" is different from "the claim shall be struck out" . It almost makes it seem like I have to make them try and get default judgment and then use the unless order, in which case I would have to sit on my hands until the extended defence submission date past, not submit a defence and then wait for the case to go to court?

[Amethyst]

Re: Court claim from Bryan Carter / Lowells

Hiya, Sorry t'is weekend, always a bit slower on the weekend, I'll have a read back.