**DISCONTINUED** Lowell CCJ Court Letter - Debt 2009

[Dragonswife]

Re: Lowell CCJ Court Letter - Debt 2009

Well, it would seem that the court have agreed to hear the case, and have sent me some papers to complete and return regarding mediation.

I haven't had chance to read through them, as I only received them this morning and was on my way to work.

They have said that the cases "is defended" and I'm hoping that means that they're taking into account my defence and the fact that I've still received nothing from Lowell.

Can I, at this point, state that I believe the case is statute barred as I believe it is from 2009 or have I gone down the wrong track by not declaring it sooner?

I was hoping (I don't know, just a thought) that as Lowell have provided no evidence to back up their claim, the court might be willing to accept that I "think" it may relate to something from 2009 - and therefore statute barred?

I don't know, I'm probably grasping at straws, so any thoughts would be appreciated.
[MENTION=87380]Diana M[/MENTION] [MENTION=55034]nemesis45[/MENTION]

[Amethyst]

Re: Lowell CCJ Court Letter - Debt 2009

The court won't have looked at the claim at all yet, other than the amount to work out whether to put it in small claims or fast track - it's basically an automated decision so don't worry what the court think at the moment. You have submitted a defence and Lowell have told the court they are proceeding, so the court has sent out the directions questionnaires regarding which court to move the case to and mediation.

Your defence does sound absolutely fine, Lowell have still failed to provide any documentation so just complete the directions Q and send it back to court, and a copy to the claimants.

If any documents do turn up you can then look at amending your defence to please statute barring - as your defence currently says ' dunno what you're talking about' it would have been difficult to plead statute barring with any certainty anyway If you do have to amend later there may be a fee but that should be reclaimable if/when you win at court (or if they discontinue), or you may just be able to use it in negotiating with the claimants.

What will happen next will be a letter from your local court with a hearing date and an order for Lowell to pay the hearing fee and for you both to file witness statements. Just let us know when that happens, or if you get any response from Lowell in the meantime regarding your CPR letter.

[Dragonswife]

Re: Lowell CCJ Court Letter - Debt 2009

Thank you [MENTION=6]Amethyst[/MENTION], that's a huge load off my mind right now.

I'll complete the forms and return them over the weekend.

I was about to ask whether I should agree to mediation, but the papers that arrived have answered that for me.

There are two questions, with a "yes / no" box and if you answer "no" to either question then mediation is not suitable.

As I don't have anything from Lowell regarding the claim, I can argue that I don't have enough information to allow me to enter negotiations.

I will get out the letter from Lowell and see what they're saying regarding mediation as they are in favour.

[Diana M]

Re: Lowell CCJ Court Letter - Debt 2009

Can I, at this point, state that I believe the case is statute barred as I believe it is from 2009 or have I gone down the wrong track by not declaring it sooner?

I don't know, I'm probably grasping at straws, so any thoughts would be appreciated.
@Diana M

As I said in post # 44 on this thread, if you've not pleaded something in your Defence then you cannot argue it in court.

Why didn't you include the Statute Barred legal argument in your Defence which you uploaded in post # 30?

I've not been following your thread but from what you say Lowells have sent you a copy of their Directions Questionnaire.

If that is the case it means that they have informed the court that they intend to continue with the proceedings.

The court will then send you a DQ to complete and file by the deadline stated on it.

Perhaps your reference to "Mediation" refers to Lowells having ticked the 'Yes' box for Mediation on the form?

I've looked at the Defence you uploaded in post # 30 and I can see no mention of the debt being statute barred when you seemed so certain that it was since you said the last payment was in 2009. Did you discover something which made you change your mind?

If a legal argument isn't pleaded in the Defence then you may not be able to argue that issue in court at a later stage.

Di

[Diana M]

Re: Lowell CCJ Court Letter - Debt 2009

I'll complete the forms and return them over the weekend.

I was about to ask whether I should agree to mediation, but the papers that arrived have answered that for me.

There are two questions, with a "yes / no" box and if you answer "no" to either question then mediation is not suitable.

As I don't have anything from Lowell regarding the claim, I can argue that I don't have enough information to allow me to enter negotiations.

I will get out the letter from Lowell and see what they're saying regarding mediation as they are in favour.

There's much debate on this forum over whether a Defendant should decline the offer of Mediation especially when the other party (the Claimant) has agreed to give it a go (sincerely or otherwise).

You need to make up your own mind on the pros and cons.

Personally and professionally I would always put a cross in the 'Yes' to Mediation box at the DQ stage.

Di

[Dragonswife]

Re: Lowell CCJ Court Letter - Debt 2009

I didn't quote "statute barred" in my defence because I was hopeful that Lowell would provide the information relating to their case - which they didn't.

I believe it's statute barred, but there is the difference between what I think and what I can prove - so I had to rely on the defence that they have not provided any evidence to prove their case.

I'll give serious thought to mediation before I send back the papers, but my concern is that I'll end up going in "blind". I have no idea what information Lowell has so my side of the story is purely "I think xxx" where theirs will be "I have this evidence to back up my claim".

I have no documents from 7 years ago - rightly or wrongly - but that's the top and bottom of it.

[Kati]

Re: Lowell CCJ Court Letter - Debt 2009

[MENTION=87380]Diana M[/MENTION] [MENTION=55034]nemesis45[/MENTION] [MENTION=6]Amethyst[/MENTION] ... could a SB'd assertion be added to a witness statement at all :noidea:??

[nemesis45]

Re: Lowell CCJ Court Letter - Debt 2009

I didn't quote "statute barred" in my defence because I was hopeful that Lowell would provide the information relating to their case - which they didn't.

I believe it's statute barred, but there is the difference between what I think and what I can prove - so I had to rely on the defence that they have not provided any evidence to prove their case.

I'll give serious thought to mediation before I send back the papers, but my concern is that I'll end up going in "blind". I have no idea what information Lowell has so my side of the story is purely "I think xxx" where theirs will be "I have this evidence to back up my claim".

I have no documents from 7 years ago - rightly or wrongly - but that's the top and bottom of it.

Please state your reasons for your belief that the alleged debt is statute barred.

nem

[Diana M]

Re: Lowell CCJ Court Letter - Debt 2009

I'll give serious thought to mediation before I send back the papers, but my concern is that I'll end up going in "blind". I have no idea what information Lowell has so my side of the story is purely "I think xxx" where theirs will be "I have this evidence to back up my claim

Ticking the box on a DQ saying you are willing to attempt Mediation is not a firm commitment to actually go ahead with it. Think of this as like accepting a party invite RSVP but not turning up on the night (I do that all the time because I'm a shy person ).

After the Small Claims Court Mediation get your contact details they'll call you to arrange an appointment or send you an email asking you to update things. At that point you can let them know that since you haven't got the paperwork there's no point in going ahead (unless you want to settle that is).

If you do go ahead with the Mediation and Lowells say "I have the evidence to back it up my claim" then that begs the question why on earth haven't they sent it to you to satisfy their statutory obligations to do so?

Di

[Diana M]

Re: Lowell CCJ Court Letter - Debt 2009

I was hopeful that Lowell would provide the information relating to their case - which they didn't

While I'm always hopeful that the the Claimant won't provide the information relating to their case

I'm forever explaining that the Claimant has to prove their case. If they can't do that then they have a problem.

So many Defendants fret that documents haven't been disclosed so they can't defend the claim when in fact it's the opposite - the absence of documents is their Defence.

Di

[Dragonswife]

Re: Lowell CCJ Court Letter - Debt 2009

Please state your reasons for your belief that the alleged debt is statute barred.

nem

I think this relates to a phone bill from 2009, September ish - just after my ex left me in a huge amount of debt (he cleared the account, and overdraft).

I spoke to every creditor, and explained the situation, 3 weren't interested - the phone wasn't used again after about September, and I was so busy paying back everyone that had agreed to wait that 3 got left at the bottom of the pile.

I think I must have done a google search, or read somewhere about statute barred debts being a debt that hasn't been paid (or communication?) for over 6 years - that's why I think it is

I don't recall receiving letters from Lowell regarding the debt, and I know that I've not paid anything to 3 since about August / September 2009 - mainly because I didn't have the money - they wanted it all in one go... or not at all and although it's less than £200, I still don't have that sort of money available to pay in one go.

I could be totally wrong, and lose anyway, and end up paying it all (along with a CCJ against my name) but I'm where I am... so I have to continue down this track

- - - Updated - - -

Ticking the box on a DQ saying you are willing to attempt Mediation is not a firm commitment to actually go ahead with it. Think of this as like accepting a party invite RSVP but not turning up on the night (I do that all the time because I'm a shy person ).

After the Small Claims Court Mediation get your contact details they'll call you to arrange an appointment or send you an email asking you to update things. At that point you can let them know that since you haven't got the paperwork there's no point in going ahead (unless you want to settle that is).

If you do go ahead with the Mediation and Lowells say "I have the evidence to back it up my claim" then that begs the question why on earth haven't they sent it to you to satisfy their statutory obligations to do so?

Di

That puts it into a different light - thank you

[Diana M]

Re: Lowell CCJ Court Letter - Debt 2009

I think this relates to a phone bill from 2009, September ish - just after my ex left me in a huge amount of debt (he cleared the account, and overdraft).

I spoke to every creditor, and explained the situation, 3 weren't interested - the phone wasn't used again after about September, and I was so busy paying back everyone that had agreed to wait that 3 got left at the bottom of the pile.

I think I must have done a google search, or read somewhere about statute barred debts being a debt that hasn't been paid (or communication?) for over 6 years - that's why I think it is

I don't recall receiving letters from Lowell regarding the debt, and I know that I've not paid anything to 3 since about August / September 2009

As Kati said in post # 13 the CCA Request argument doesn't apply to mobile phone contracts (well it does nowadays where handsets are involved but it didn't in 2009).

From what you have said your strongest legal argument would be SB which you've not pleaded. It would be up to the Claimant to prove it wasn't SB.

As Amethyst said in post # 47 you've filed an "I dunno" Defence because you believe you don't have enough info to make sense of the claim. If/when the Claimant comes up with the documents you may want to amend your Defence either by consent with the Claimant or after an application to the court (if you're on a low or no income you may be entitled to fee remission for that task).

Di

[Diana M]

Re: Lowell CCJ Court Letter - Debt 2009

I think this relates to a phone bill from 2009, September ish . . .

I spoke to every creditor, and explained the situation, 3 weren't interested - the phone wasn't used again after about September, and I was so busy paying back everyone that had agreed to wait that 3 got left at the bottom of the pile.

I think I must have done a google search, or read somewhere about statute barred debts being a debt that hasn't been paid (or communication?) for over 6 years - that's why I think it is

I don't recall receiving letters from Lowell regarding the debt, and I know that I've not paid anything to 3 since about August / September 2009

I could be totally wrong, and lose anyway, and end up paying it all (along with a CCJ against my name) but I'm where I am... so I have to continue down this track

The only potential fly in the ointment I can see to your SB argument may be if you didn't actually cancel your mobile contract (typically requiring 30 days notice in writing) so even if you didn't pay anything the contract may have still been running regardless of any calls/texts/data not made/used.

That's why you need to see any Default Notice which may indicate when the account/contract was subsequently terminated. (On the assumption you were actually sent a DN.)

From what you say Lowells have not been able to produce that yet

Di

[Dragonswife]

Re: Lowell CCJ Court Letter - Debt 2009

Thank you everyone,

It seems that my best defence right now is that Lowell have failed to provide any evidence - I'll keep my fingers crossed that it doesn't turn up in the post tomorrow.

I will agree to the mediation, with the view that I can argue lack of information and hopefully have this settled without the need for an actual court appearance.

[Dragonswife]

Re: Lowell CCJ Court Letter - Debt 2009

Update

I had my mediation email, and spoke to them (explaining that I had received nothing from Lowell) - they said that the matter wasn't suitable for mediation and would be passed to the court.

Not sure if this is a good or bad thing - but it's a thing, so I'll live with it