**WON** Claim Received Incorrect Name

[Amethyst]

Re: Claim Received Incorrect Name

Documents to be provided 14 days before the hearing is normal ( and applies to you as well, so you would write a Witness Statement backing up your defence )

The Claimant has to pay the hearing fee for the case to continue. If they don't then the case is struck out usually. Normally they try and entice you into settling before they have to pay the hearing fee, so expect letters...

Application for a concession just means if they were on a low income and unable to pay the hearing fee, or if they needed to put it off for a time to continue negotiation etc.

If they pay then it usually does mean they believe they have a case.

You could still mediate if you wanted, but really it sounds like you have done your bit and the ball is in their court - they need to provide documents. If they do then we can relook at things, but for now you only need check with court in 30 days whether the hearing fee has been paid.

( Nem - it is already allocated to court - ie N180 has been done, mediation has been tried ( failed because the court mediation service is impossible to contact) and there is a hearing date )

[FlamingParrot]

Re: Claim Received Incorrect Name

Hello again...

Well I just received a court notice of allocation to the small claims track dated Oct 14th.
Hearing is set for January 8th however according to this notice they only have to provide documents (including any experts' report) no later then 14 days before the hearing.

It also states the claimant is to pay £335 within 28 days unless they make an application for a concession. Failure to pay the fee will result in the hearing being removed from the list. I know this part does not apply to me what does that mean or could that mean to me?

Hello
No, it refers to the claimant who is Lowell in this case.

What is a concession in this context and?...

When you make a claim you have to pay a hearing fee or apply for remission of the fee. Obviously a debt purchaser wouldn't qualify but the rules are generic because a claimant could be anyone such as you or me., for example I am a claimant in a different type of case and had to apply for remission.

If they pay that does it mean they probably have the documents they have so far refused to provide?

No, it means they are still hoping to be able to get them before the hearing. :flypig:

Court process can be rather lengthy so a hearing may not be scheduled till next year. Once it's scheduled, they will have to provide them at least 14 days before the hearing, that still leaves them with a bit of time to try and get their hands on them. It's out of their control as they rely on the original creditor and, if you look around, there's been a few recent cases where they've ended up having to discontinue because they just couldn't get them. ray: ray: ray:

Different creditors seem to operate in different ways: Cabot will often leave claims stayed for months to buy themselves time to get the paperwork, Lowell never seem to leave them stayed, they always reply saying they wish to proceed and hope that Santa will drop down their chimney this Xmas with a whole lot of paperwork for each and every claim they've made.

Lastly; the notice goes on to say - "Having considered the papers in your case the court believs that your case is suitable for mediation" etc and goes on to give details of how to get in touch with the mediation service yet again and I thought that boat had sailed once allocated to a court.

At this point I have still not received any of the requested documents

Can anyone lighten my darkness?

Those notices of allocation are generic, the option is mentioned in case you had received something that could make you change your mind and consider the mediation option again. The system is meant to encourage out-of-court settlement. You don't need to request mediation, it's just an option, not an obligation. :thumb:

[Proceed]

Re: Claim Received Incorrect Name

Well it seems they paid the fees and are going to court (or rather I am)... they won't be attending.

They have finally provided some documents none of which I have had sight of until now. Turns out its Virgin Money.

1. Copy of agreement - (No proof of ID provided interestingly)
2. Statements of account showing my last payment to be on 01/01/09
3. Notice of default they refer to was dated 04/08/09 and was sent to the wrong address and was therefore never received... However.
(I hope this is relevent)
It appears from the CC statements I received that the first "Notice of Default Sums" was sent to the same address on 03/02/09 when I was out of the country, returning only in July 2009 to a new address.
Doesn't that mean it was SB'd from that date? edit: I meant Defaulted from then and SB'd from 03/02/15

They also included the attached paragraph which Guess they are claiming a prescedent?

Any help, questions, advice grealy appreciated masred:

[nemesis45]

Re: Claim Received Incorrect Name

Well it seems they paid the fees and are going to court (or rather I am)... they won't be attending.

They have finally provided some documents none of which I have had sight of until now. Turns out its Virgin Money.

1. Copy of agreement - (No proof of ID provided interestingly)
2. Statements of account showing my last payment to be on 01/01/09
3. Notice of default they refer to was dated 04/08/09 and was sent to the wrong address and was therefore never received... However.
(I hope this is relevent)
It appears from the CC statements I received that the first "Notice of Default Sums" was sent to the same address on 03/02/09 when I was out of the country, returning only in July 2009 to a new address.
Doesn't that mean it was SB'd from that date? edit: I meant Defaulted from then and SB'd from 03/02/15

They also included the attached paragraph which Guess they are clain=ming a prescedent?

Any help, questions, advice grealy appreciated masred:

The MBNA Agreement should state at what point e.g. after 1 ,2 3 or missing Any Payment
at which the debt be comes into default can you find this.

nem

[Proceed]

Re: Claim Received Incorrect Name

Hi Nem,

No reference it at all,
It would appear they have not supplied the agreement in its entirety............
I have the page I signed and then a partial T&C's only up to para 3.
There is reference to paras 4-19 but my copy only goes to "para 3".
They issued a default notice monthly and adding interest monthly apart from first 28 days. see attached
Is that any help?

[Proceed]

Re: Claim Received Incorrect Name

I managed to find the case referred to in their Paragraph 10 http://www.casetrack.com/ct4plc.nsf/items/2-532-2706
I read it all and don't profess to understand it completely, but it appears that the judge allowed an appeal against a SB'd debt.
As my case has not yet been heard so I don't see how that can be relevant

[Amethyst]

Re: Claim Received Incorrect Name

You have argument enough under the Consumer Credit Act s.77/78 - your CCA request has not been fully complied with and there is no evidence that you received the full terms relating to the account referred to in the agreement.

BMW v Hart is argued that cause of action doesn't start until the creditor choses (basically)

the cause of action to recover the amounts claimed under clause 12 did not accrue on the customer's default alone, but only upon the election of the hirer to terminate the contract.

not when ( as we tend to argue ) they first had the right to ( so under the terms of the account the point at which they could have called in the full debt but chose not to ( which you don't know as they haven't provided the terms under the CCA 1974) There is quite a bit of discussion about BMW case on here - eg http://www.legalbeagles.info/forums/...e-Barred-Debts

You say they issued a default notice, a notice of default sums is different from a default notice, the default notice should give you 14 days to pay the arrears else they will call in the entire debt, close the account, end the agreement etc. The notice of default sums just tells you how much they will charge you for missing a payment and the agreement continues.

[nemesis45]

Re: Claim Received Incorrect Name

I believe that BMW Finance - v - Hart can be challenged on the point that it referred only to an Hire Purchase Account, i.e. a loan secured upon goods.
Lowell has backed down on this before.

nem

- - - Updated - - -

I believe that BMW Finance - v - Hart can be challenged on the point that it referred only to an Hire Purchase Account, i.e. a loan secured upon goods.
Lowell has backed down on this before.

nem

[Proceed]

Re: Claim Received Incorrect Name

Thanks Amethyst, and nem,
I'm till not quite clear.
Ignoring the BMW etc. for a moment..

You have argument enough under the Consumer Credit Act s.77/78 - your CCA request has not been fully complied with and there is no evidence that you received the full terms relating to the account referred to in the agreement.

Are you saying here that CCA request has not been fully complied with as they have not supplied a complete agreement with full set of T&C's?
Or am I missing the point?

You say they issued a default notice, a notice of default sums is different from a default notice, the default notice should give you 14 days to pay the arrears else they will call in the entire debt, close the account, end the agreement etc. The notice of default sums just tells you how much they will charge you for missing a payment and the agreement continues.

From this comment, it would appear that they have not supplied a copy of the default notice as the document they refer to is merely a notice of default sums. Is also a breach/failure under the Consumer Credit Act s.77/78?

[Proceed]

Re: Claim Received Incorrect Name

Still a bit puzzled...

[Proceed]

Re: Claim Received Incorrect Name

Hi Guys/Gals

Its all gone quiet, could do with some clarification before my hearing…

Here’s a quick recap of all thats occurred so far….

I have an unsecured credit debt case due in court Jan 8th, claimant is Lowells

The last payment made was 1st Jan 2009 it was assigned to Lowells on 30/09/2009
I believe the alleged debt is statute barred as no payment or unequivocal written acknowledgement has been made in over 6 years.

I made the recommended CCA requests from the claimant, the docs they referred to in their claim (1,2,3 below) - The usual Carter letters went back and forth.

I have finally received them just over 14 days before the hearing

1. Agreement. - Only received front page but not complete T&C’s…
In their witness statement they state they have “supplied agreement COMPLETE with T&C’s and have therefore complied with CCA1974”
I say without T&C’s is not compliance.


2. Default notice. Never received from Credit card company nor Lowells as I had moved and not supplied to date
For the court hearing they are relying on a “notice of default sums” within the statements.
This part is I believe is quite important as they specifically refer to it to counter my claim the debt is statute barred. They state the default date to be 31st Aug 2009 and their claim was issued on 2nd July 2015. (Just inside the 6 yrs)

If the Judge will accept this as a default notice then he/she surely must accept the exact same notice issued 6 months earlier and each and every month thereafter.
Either way they can not prove I ever received any them because I did not- (all to old address plus I was out of country)

3. Notice of Assignment. This has now been supplied and shows it was sent to an old address. No proof that I received it

On the points above I believe that they have failed to provide supporting documents on all three counts as per my earlier CCA requests
Plus the blasted debt is SB’d

Does anything raise any questions for you?

[Amethyst]

Re: Claim Received Incorrect Name

It would appear they have not supplied the agreement in its entirety............
I have the page I signed and then a partial T&C's only up to para 3.
There is reference to paras 4-19 but my copy only goes to "para 3".

That is your main argument -

77 Duty to give information to debtor under fixed-sum credit agreement.

(1)The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)the total sum paid under the agreement by the debtor;

(b)the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

(c)the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

(2)If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3)Subsection (1) does not apply to—

(a)an agreement under which no sum is, or will or may become, payable by the debtor, or

(b)a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4)If the creditor under an agreement fails to comply with subsection (1)—

(a)he is not entitled, while the default continues, to enforce the agreement; F2. . .

(b)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[Amethyst]

Re: Claim Received Incorrect Name

1. Agreement. - Only received front page but not complete T&C’s…
In their witness statement they state they have “supplied agreement COMPLETE with T&C’s and have therefore complied with CCA1974”
I say without T&C’s is not compliance.

I agree. You cannot refer to para's 4 to 13 ( or whatever it is) as they are not provided and were not provided at the time so far as you are aware, you cannot check any terms about non payment etc as they don't seem to exist.

You can respond to their witness statement if you want to or wait and argue against it at court - should be quite a straightforward argument if you just point out where it refers you to other clauses that don't exist ( in their bundle).

You have had no contact nor acknowledged the debt since January 2009 - stick to that as it is the truth.

A notice of default sums is not a default notice in any case and they haven't provided any default notice copy. How can a notice of default sums be a cause of action ? It requires nothing to be complied with and doesn't give them any rights to end the contract etc so there's no action to take. A default notice under s.87 gives you 14 days to pay arrears and bring the account into order to stop them terminating the agreement and calling in the debt - that would give a cause of action - a default sums notice is meaningless and not evidence of anything other than Virgin Money added default sums to the account.

[Proceed]

Re: Claim Received Incorrect Name

Thanks, Ive been going down the wrong track trying to prove why I didn't receive the original documents; digging out documents to prove where I was living etc = Doh!
Please forgive my dumb questions, but feel quite lost in this realm.
May I ask you to further clarify a couple of minor details for me.

You can respond to their witness statement if you want to or wait and argue against it at court -

1. Respond as in write directly to the court?
I'd rather not have to take the time off to attend but its Jan 8th leaving little time to receive a response from them.

should be quite a straightforward argument if you just point out where it refers you to other clauses that don't exist ( in their bundle).

2. The reference to the missing clauses is in the first couple of lines of the T&C's that I do have.
In their witness statement the simply refer to "Agreement together with terms and conditions"
Is that all part of the "in their bundle" you refer to?

[Amethyst]

Re: Claim Received Incorrect Name

Do we have the full witness statement on here ? I can only see the notice of default sums and the excerpt about Hart v BMW.

In their witness statement the simply refer to "Agreement together with terms and conditions"

and they haven't attached any more than the front page and para 1 - 3 of the terms which refer to paras 4 - 19 of which they have not included any copy or recon or anything ?

A copy of the agreement they have provided might help - is it like this one http://www.legalbeagles.info/forums/...132#post178132 ( from 2003 not sure what date yours was opened )