!! Won !! Notice of impending Legal Action: 5 year old Catologue Debt

[humanbean]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

Hiya xxx

Yes it's just a matter of waiting for the court to catch up xxx

Hiya Amethyst,xXx
(I'm sorry, this post is long, I've tried to add as much relevant info as I could.


:help:GUIDANCE NEEDED please !! ( also TIME - SENSITIVE) :help:

Yes , they are now up to speed again now.
I phoned the Court on Monday and received a 'Notice of Allocation to the Small Claims Track' through the post a day later. It states my 'Hearing' will take place on 4th November at the County Court (very little time to prepare !)

Firstly;

It says in the 'Hearing' Notice, 'Having considered the papers in your case, the court believes that your case is suitable for mediation' ( ?? )

This is a little confusing as I ticked the 'yes to mediation' box on the N180 I sent off a while back, but was turned down for this option as not suitable. Specifically, when mediation responded they asked me if I had received all paperwork I had asked for and I had to say 'no', as even though Lowell's provided (an 'incomplete'-you said) Credit Agreement, they had not managed to produce the requested Notice of Assignment.
Mediation replied to this by saying, if all requested paperwork had not been presented for inspection then mediation was not suitable. So we moved on to a Court date and that was the end of that.
Now mediation is being mentioned again, I'm wondering , if this is just the 'default' printout?

Your appraisal of my situation would be very gratefully received

I am worried.
It looks like Lowell's aren't going to pull out and I'm going to end up in Court. I admit I don't feel great about it. I am trying to appraise my situation and the best thing to do?
Whether to go to court, or try again for mediation if it looks like I am on dodgy ground with little to gain going to court as things stand.. ? ?

I would appreciate help to prepare and what to expect? (if that's possible?)

The two main things I can think of in my favor are:

1) The Credit Agreement they sent in response to my request was (as you said) incomplete.

2) The Notice of Assignment I requested wasn't provided for inspection.

I'm afraid there isn't really a lot I can say extra in my defence, if they are satisfied the slightly wonky credit agreement proves the debt. All I can add to the above is that my situation at the time was that I was overwhelmed with disability & health issues. I was struggling with finances as well as other things as a result. My memory of that time is not great.

If my chances are rather poor in Court
should I look at damage limitation and try to go through mediation?

If on balance you think I'm better off going to court ..
(I'm going in without representation - should I correct that?

If I need to go to Court and play it out, I could use help with my Witness Statement or what to expect at court.,
I would be very grateful if you could check through my defence (you have a copy & its posted on this thread).
Help in these areas would be greatly appreciated:



Tell me what you think?

yours confused ( is it worth risking a CCJ ?)

bean xXx:deadhorse:

Just to make it more stressful it says 'Each party must deliver to the other party and to the court office copies of all documents on which the party intends to rely at the hearingno less than 14 days before the hearing' , that's by Friday the 21st October .. just over a week away!

[Amethyst]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

Morning xxx Reading through everything now Stop stressing xxx I've replied to your email briefly earlier, am all coffee'd up now.

[Amethyst]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

DEFENCE that was submitted ( just so it's on here )

1. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

2. The Claimant’s statement of case contends that the claim is for a “non-regulated Shop-Direct account”.


3. It is denied that the Defendant has ever had a “non-regulated Shop Direct account”. Shop Direct is a catalogue company who provide goods on a running-credit account basis. Any such account would be regulated by the Consumer Credit Act 1974.

4. The Claimants pleadings are lacking detail, there are no details as to when the alleged default occurred, the degree of default, despite requests for information from the Defendant; the Claimant has not provided any details as to how the sums claimed have accrued.


5. The sparse particulars of claim state that the account was assigned to Lowell Portfolio 1 Ltd on 06/Dec/2010. This date is unproven as despite requests for disclosure of the notice allegedly given to the Defendant, no assignment notice has been received by the Defendant.

6. In respect of matters, which the Defendant is able to plead to, and despite the Claimants pleading that the alleged account was ‘non-regulated’ a request was made on 18th April 2016 pursuant to s78 (1) Consumer Credit Act 1974 and payment of the statutory fee of £1 was provided, to ascertain which agreement the Claimant was demanding payment under and to obtain further information about the terms of the contract.


7. In addition, on 23rd April 2016 the Defendant made a further request for information from the claimant. He asked for inspection of documents mentioned in the Claimant’s statement of case under Civil Procedure Rule 31.14, being the agreement/ contract and the notice of assignment.

8. As the Claimant failed to provide any documentation the Parties agreed to an extension of 28 days to the time period allowed for filing of the defence under CPR 15.5 to allow the Claimants additional time to produce the relevant documentation to evidence their claim. They still have not been able to provide all the evidence required.
9. On the 8th June 2016 the Claimant disclosed copies of two regulated agreements on which they intend to rely.

10. The first agreement is for an account with Littlewoods Finance Company Limited and is regulated by the Consumer Credit Act 1974.


11. It is admitted that the Defendant held a Littlewoods Finance Company Limited account and purchased products from the ‘Littlewoods’ catalogue on 0% credit terms.

12. The Defendant contends that if there was any outstanding debt owed to ‘Littlewoods’ any such debt would be statute barred pursuant to section 5 of the Limitations Act 1980. The last payment or acknowledgment of any agreement with ‘Littlewoods’ was in 2009.


13. No statement of account or evidence of how the sums claimed have been calculated has been provided.

14. The Defendant does not recall that ‘Littlewoods’ served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.


15. The Claimant has also sent the Defendant a copy of a template of a Shop Direct Finance Company Limited agreement. The document does not contain any of the Defendant’s details and key prescribed terms regarding interest have information missing. The document is not dated nor is there any reference for the Defendant to make further enquiries. The Defendant has never seen this document before.



16. Under the circumstances, the Defendant avers that the request is not satisfied, as the documents supplied to date are incomplete and do not appear to be relevant to the Claimant’s statement of case.


17. It is denied that the Claimant has served notice of sums in arrears pursuant to s.86(c) Consumer Credit Act 1974. A notice of sums in arrears must precede enforcement and therefore the Claimant is not entitled to enforce the agreement.

18. 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 £1 claimed.

19. The Defendant has not yet been able to examine the terms and conditions which were in force at the time that the agreement was signed and therefore reserves the right to amend these pleadings to address any breaches that are identified if such terms and conditions are disclosed by the Claimant. The amendment will be due to the lack of disclosure by the Claimant and the failure to respond to the s78 CCA 1974 request correctly and the Defendant therefore also reserves the right to claim the cost of such amendments from the Claimant.


20. Lastly, the Claimant has sought to recover s.69 County Courts interest within this claim. The Defendant believes that the Claimant is not entitled to recover such interest due to the fact that this debt originates from an agreement regulated by the Consumer Credit Act 1974.Without sight of the full terms of the original agreement, it is not possible to state categorically whether the Claimant is entitled to seek such interest and until such terms are supplied and inspected, the Defendant denies the Claimants right to seek s.69 County CourtsAct 1984 interest.

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

[Amethyst]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

Agreements provided for ref

[Amethyst]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

Littlewoods agreement - Default charges - Please refer to paragraph 11 overleaf - there is no overleaf provided. Thus incomplete agreement.
Interest is 0%
Cost of Credit is £0
No information how balance claimed has been calculated.
Last payment in 2009 ( although looks like it was acknowledged in March 2010 by letter possibly ) As SB is pleaded in defence it is up to Claimant to prove otherwise.
No default notice
No notice of assignment
odd blank spaces in shopdirect agreement

[charitynjw]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

Littlewoods agreement - Default charges - Please refer to paragraph 11 overleaf - there is no overleaf provided. Thus incomplete agreement.
Interest is 0%
Cost of Credit is £0
No information how balance claimed has been calculated.
Last payment in 2009 ( although looks like it was acknowledged in March 2010 by letter possibly ) As SB is pleaded in defence it is up to Claimant to prove otherwise.
No default notice
No notice of assignment
odd blank spaces in shopdirect agreement

Also (just in case,a reminder).

The year I opened the account was 1996 and I ordered my first goods over the phone. Is this helpful? (please say yes !)

s127(3)?

[humanbean]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

Morning xxx Reading through everything now Stop stressing xxx I've replied to your email briefly earlier, am all coffee'd up now.

Thanks Amethyst,
I have to say I read through my post earlier, and I had to edit some of it!

it was all over the place. Somewhat embarrassing.
(that's what happens when I'm tired)

SORRY xXx
bean

[Amethyst]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

Also (just in case,a reminder).

s127(3)?

I'm not certain as the actual credit agreement as signed in Dec 2007. Not sure why that would be if the account had been in operation since 1996. Did they send out a bunch to customers to become compliant?

[charitynjw]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

I'm not certain as the actual credit agreement as signed in Dec 2007. Not sure why that would be if the account had been in operation since 1996. Did they send out a bunch to customers to become compliant?

Morning Ame

Could it be that the the other party ̸i̸̸s̸̸ ̸̸l̸̸y̸̸i̸̸n̸̸g̸̸ ̸̸t̸̸h̸̸r̸̸o̸̸u̸̸g̸̸h̸̸ ̸̸t̸̸h̸̸e̸̸i̸̸r̸̸ ̸̸t̸̸e̸̸e̸̸t̸h has made a mistake. What documentary evidence is there to prove the 1996 position?
(I haven't read through the thread yet 'cos
it's Sunday morning*/I haven't had my morning cuppa yet*/I'm a lazy sod*)

* Delete as necessary

[Amethyst]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

Nothing. Only Bean's testimony at the mo. They haven't supplied any statements etc. So for now we have to treat it as a Dec 2007 CCA case - ie. I don't think there would be any specific implications of signing a new credit agreement in Dec 2007 anyway tbh. Possibly that any debt acrrued pre Dec 2007 wasn't enforceable ( but I believe the debt was accrued after then anyway).

[charitynjw]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

Nothing. Only Bean's testimony at the mo. They haven't supplied any statements etc. So for now we have to treat it as a Dec 2007 CCA case - ie. I don't think there would be any specific implications of signing a new credit agreement in Dec 2007 anyway tbh. Possibly that any debt acrrued pre Dec 2007 wasn't enforceable ( but I believe the debt was accrued after then anyway).

Erm.......

https://s3-eu-west-1.amazonaws.com/d...npgo74qNwAU%3D

[humanbean]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

I'm not certain as the actual credit agreement as signed in Dec 2007. Not sure why that would be if the account had been in operation since 1996. Did they send out a bunch to customers to become compliant?

hi,
if I remember correctly, my account had not been used for a little while and was 'sleeping'. I think signing the agreement( in 2007) was so I could start using it again.

bean x

[Amethyst]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

DRAFT WS for input as a starting point. It should give you an idea how to put the WS together - of course the number needs sorting out, and all the facts need checking and associating with documents. I haven't done any penalty charges argument as it wasn't in the defence, we don't have a breakdown on the sums claimed, nor do we have default charges as they are missing from the copy agreement. If anyone thinks there should be a mention then feel free to add something, but I think it's a tad long anyway - so you could probably leave out some of the back and forth letter writing sections - I included them as I think it shows you have tried to get docs and sort things out and the claimant has behaved like a bit of a plank.


In the xxxxxxxxxxx County Court


Claim No. XXXXX


xxxxxxxxx
Claimant


HumanBean
Defendant


Dated 20^th October 2016

-------------------------------------
WITNESS STATEMENT
------------------------------------

I, HumanBean, of xxxxxaddressxxxxxxxxxxxxxxxxxxxxxx , am the Defendant, a litigant in person, and I make this statement in support of my defence in this case;
Background

1. I received the claim dated 14th April 2016, on the 16^th April 2016, from the Northampton County Court Business Centre (EXHIBIT A)

1. The Claimants claim form failed to adequately or even accurately set out the nature of the Claim.

1. On 23rd April 2016 I wrote to the Claimant (EXHIBIT B) requesting copies of documents mentioned in their statement of case pursuant to CPR Part 31.14. These documents being the notice of assignment and the account agreement. The request was sent to the Claimant’s solicitors – ‘ Cohen Cramer Solicitors’ and was signed for on 26^th April 2016.

1. On both the 18^th April 2016 and 20^th April 2016 (EXHIBITS C and D) I sent a formal request for a copy of the original Consumer Credit Agreement to LOWELL PORTFOLIO 1 LTD pursuant to my entitlement under section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

1. On 26^th April as I was uncertain about the claim I telephoned Shop Direct directly and spoke to a gentleman in their ‘Legal Team’. They confirmed that any account held with them would be regulated under the CCA 1974 as Shop Direct act as creditor and provide the debtor with credit of any amount, and the agreement is not an exempt agreement as specified in section 16 of the CCA 1974. They held no record of an account held by me.

1. On the 28^th April 2016 I received a letter (EXHIBIT E) from the Claimant’s Solicitors ‘Cohen Cramer Solicitors; which stated their client would not be able to provide any documents for a minimum of 45 days.

1. The letter also stated that they agreed an extension of time for my filing of a defence for 14 days after they had supplied the documents.

1. I was somewhat confused by this as under the CPR 15.5 the maximum extension for filing a defence that can be agreed is 28 days. In addition, the Claimant should have had possession of the documents mentioned in their statement of case and on which they intend to rely in the claim before filing the claim.
2. I responded to the Claimant’s solicitors letter on the 30^th April 2016 (EXHIBIT F) and confirmed an agreed extension of the maximum 28 days and that I would be filing my defence on 14^th June 2016 and requested their client ensured they had complied with my CPR request for documents by that date.

1. I received a response from the Claimant’s solicitors confirming that the extension was confirmed to the 14^th June (EXHIBIT G) and I subsequently informed the court of the agreement by email to ccbcdefendants@hmcts.gsi.gov.uk.

1. I received a letter dated 16^th May 2016 (EXHIBIT H) from the Claimant which stated I should correspond directly with a third party (of whom I had not previously heard off nor had any contact with) and stated ‘This account is currently managed by Lucas Credit Services Ltd.’. I found this very confusing.

1. I responded to the Claimant’s letter (EXHIBIT I) informing them that as I had not received any notification from the Court regarding a change in Claimant or Solicitors I would continue to correspond with the Claimant directly. I also confirmed that I was still awaiting a copy of the alleged credit agreement under the CCA 1974 and that pursuant to s.189 the Claimant was considered to be the creditor.

1. I received a copy of a single page agreement with Littlewoods Finance Company (EXHIBIT H) and a reconstruction of a Shop Direct Finance Company agreement on XXXXXX 2016 ((EXHIBIT J)

1. I submitted my defence in the case on xx June 2016. EXHIBIT I)

1. On 14^th July 2016 I received a ‘Notice of Change of Solicitor’ from Cohen Cramer to Lowell Solicitors.(EXHIBIT J)

1. On 14^th July 2016 I received a copy of the Claimants completed Directions Questionnaire.(EXHIBIT K)

1. On 21^st July 2016 I received a letter from the Northampton County Court enclosing a blank Directions Questionnaire for me to complete. I did this a returned it to the court.

1. On xx October 2016 I received the Notice of hearing from the court.(EXHIBIT L)

The Claim

1. The claim relates to an agreement between Littlewoods Finance Company and myself.

1. The Claimants statement of case states “The claim is for the sum of £2200 due by the Defendant under a non-regulated Shop-Direct account.”

1. It is my understanding that any credit agreement that may exist between myself and Shop Direct would be regulated under the Consumer Credit Act 1974 (CCA 1974).

1. I have never signed any agreement with Shop Direct. However I understand Littlewoods Finance Company Limited changed their name to Shop Direct Finance Company Limited in January 2009.

1. Indeed, the Claimant has produced a copy of an alleged credit agreement between myself and Littlewoods Finance Company Limited (EXHIBIT H) which clearly states at the top “Credit Agreement regulated by the Consumer Credit Act 1974”

1. I been a customer of the Littlewoods Catalogue since 1996. At the time of opening the account I did not sign any credit agreement at all, I would simply telephone Littlewoods to place an order and later make a payment for the goods received.

1. I am not aware of an outstanding balance owed on that account. If there is an outstanding balance as claimed by the Claimant I do not know how this amount has been arrived at. The Claimant has failed to provide any evidence of how the sum claimed has been calculated or how any debt has arisen.

Statute Barred

1. It is my contention that the alleged debt is statute barred by virtue of section 5 of the Limitations Act 1980.

1. I last made a payment to Littlewoods in 2009. I have checked my records and find no evidence of any payment made to either Littlewoods Finance Company or Shop Direct after December 2009.

1. The Claimant has offered no evidence of any later payment or acknowledgement of the alleged debt.

The Agreement

1. The Claimant has sent me a copy of the alleged credit agreement as requested pursuant to s.78 of the Consumer Credit Act.(EXHIBIT H) The agreement sent is between Littlewoods Finance Company Ltd and myself and is clearly regulated under the Consumer Credit Act 1974.

1. The credit agreement is dated December 2007.

1. The agreement states the total charge for credit is £0 and the rate of interest is 0%.

1. The agreement states that Default Charges may be payable in accordance with clause 11 overleaf. However, the Claimant has not provided a copy of the term referred to. Clause 11 on the same page relates to Littlewoods right to vary the agreement. I therefore contend that the agreement is incomplete and therefore improperly executed in accordance with s.61 of the Consumer Credit Act 1974.

“61 Signing of agreement.
(1)A regulated agreement is not properly executed unless—
(a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b)the document embodies all the terms of the agreement, other than implied terms, and
(c)the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.”

1. In the event the court finds that additional terms were supplied at the time of executing the agreement, then I contend that I have not yet been able to examine those terms and conditions and the Claimant remains unable to enforce the agreement.

1. The Consumer Credit Act is quite clear on this issue in section 78(1), “The creditor under a regulated agreement for running-account 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,”.
2. Under section 78(6) “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;”

1. The Claimant has sent a further copy of an agreement, however this is a template / reconstructed agreement from ‘Shop Direct Finance Company Ltd’ (EXHIBIT J) This agreement does not carry any of my details, I have not seen it prior to receipt from the Claimant, and it appears to be from a recent date. There are a number of blank sections in relation to interest rates (paragraph 10, 12) In addition, I believe that Littlewoods did not change its name to Shop Direct until January 2009. I therefore conclude that this is supposed to be a copy of the terms as varied at the point of alleged default in 2009.

Notice of Sums in Arrears

1. It is denied that the Claimant has served notice of sums in arrears pursuant to s86C Consumer Credit Act 1974. A notice of sums in arrears in a condition precedent on enforcement and therefore the Claimant is not entitled to enforce the agreement

Default

1. The Claimant has failed to provide evidence of a Default Notice as required under s.87 Consumer Credit Act 1974.

Assignment

1. The Claimant has failed to provide of copy of the notice of Assignment as requested under CPR 31.14 on 26^th April 2016.

Conclusion
31. Accordingly, I contend that;
a) The Claimant has failed to plead properly in this matter
b) The Claimant has not complied with s61, 78, 86, and 87 Consumer Credit Act 1974 and therefore cannot enforce the agreement.
c) The debt is Statute Barred pursuant to section 5 of the Limitations Act 1980.



Statement of Truth
I believe that the facts stated in this statement are true.
Signed
__________________
xxxxxxxxxxxxx
(Defendant) – Claim No. XXXXX

[charitynjw]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

[MENTION=6]Amethyst[/MENTION]

The CCBC email addy referred to in the WS......I've tried it a couple of times recently & it bounces back 'undeliverable'.
Was it ok in June?
(Or maybe for some strange incomprehensible reason CCBC doesn't like me?)

[Amethyst]

Re: Notice of impending Legal Action: 5 year old Catologue Debt

Yes afaik they changed it at the end of September - goodness knows why, just to annoy people I think.