WON Lowell vs S Lonie - Court date of 1st February - need to submit defence

**Amethyst** · 16th December 2016, 08:48:AM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Don't panic Sara. You have already submitted a defence so this will be your witness statement and supporting documentation. So those need to be in about 15th Jan ?

It would carry a cost to make the application to amend your defence - £100 (as it shouldn't need a hearing) - but first step to amending is to write to the other side with a draft of your amended defence and ask for their consent to the amendments so that you definitely won't need a hearing - but there is the risk it flags your case back up on their radar and they dig harder for the documents. If you have still not received any of the documents you have asked for you are likely to be okay without amending.

How strong is your case for the debt being statute barred ?

**slonie** · 16th December 2016, 08:56:AM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Hi Amethyst,

Thanks for the quick reply

I am pretty confident that this debt would be statute barred, all the debts I have are from 2009 and before, I am paying off the ones that I knew about, but because I dont have paperwork and dont know what this is, thats where im unsure.

I had read somewhere that if I hadnt mentioned statue barred in my original defence then they could ignore it if I mention in my witness statement.?

I am unsure of the process, and I havent really got £100 to spare on this at the minute.

Thanks.

**Amethyst** · 16th December 2016, 09:21:AM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Okay, if you aren't certain then it's probably okay to leave it for the moment, and only if they come up with all your documents ( CCA etc) in their witness statement (or before) then you could ask to amend - reason being that their witness statement clarifies what the debt is and that the debt is statute barred - the application to amend should then be dealt with at the same hearing. You could, and there probably is time, send a Subject Access Request to the original creditor, for all transaction data held - that would cost £10 - but might come in handy for evidence later. They have 40working days ( so 2 months) so it's tight if they leave it to the last day, but might be worth doing as it should show the date of last payment/contact. Of course there is then the possibility you paid Lowell direct but a look through your bank statements should clear that up.

**slonie** · 16th December 2016, 10:09:AM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Hi Amethyst,

Thanks for that information.

so, I would need to send the Subject Access Request to the original creditor that lowell state on their first papers.

I think it was JD Williams, and quote the account number that lowell have given? Is there a template letter on here for that? It would be a good starting place, perhaps to see what information they have.

Thanks

**Amethyst** · 16th December 2016, 10:30:AM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Yes, JD Williams - or you could first give them a ring and ask them - they are usually quite good and might be able to tell you the last time you made any payment, and what catalogue the account was. It may be that the account number lowell gave is different but they might be able to find your info on name and address.

I'll get a link for the SAR for you xx

**Amethyst** · 16th December 2016, 10:31:AM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

http://legalbeagles.info/forums/show...otection-Act-)

**slonie** · 7th January 2017, 11:09:AM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Hi Amethyst,

Sorry for not replying to that sooner, I hadnt seen the link come in. It is something that i will follow up, however, im into that period where i need to get documents to court and lowells solicitors by the 15th January, which is 14 days before the court date of the 1st Feb.

Do I merely send copies of the original defence that i submitted plus copies of the postage receipts and copies of the signatures showing what date lowell received the request? and could i check, i have no intention of attending court, i cant afford to take the day off work for a start, so is there a form to complete for that. I know that we were talking about applying for an extension, if lowell send me papers. If lowell dont send me any paperwork by the 15th January what do i do in that instance. So sorry for all of the questions, im definately feeling stressed and panicked by the whole thing.

Thanks in advance.

**charitynjw** · 7th January 2017, 11:30:AM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Example Witness Statements, courtesy of [MENTION=6]Amethyst[/MENTION]
http://www.legalbeagles.info/forums/...ness-Statement

**slonie** · 7th January 2017, 11:45:AM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Thanks charitynjw

i will start filling the witness statement in, if i post here when im finished, will someone take a look over it for me please.

Thanks

**slonie** · 8th January 2017, 19:32:PM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Hi, would you be able to take a look over this witness statement, and let me know if it would be ok to send as is, or if it needs amending. Thanks in advance.

IN THE DONCASTER COUNTY COURT

CASE NO: xxxxxxxxx

BETWEEN:

LOWELL PORTFOLIO LTD
CLAIMANT
-and-

xxxxxxxxxxxxxxxx
DEFENDANT

----------------------------------------------------------------------------------------------------------------
WITNESS STATEMENT OF xxxxxxxxxxxxxxxx
----------------------------------------------------------------------------------------------------------------

I,xxxxxxxx, of xxxxxxxxxxxxxxxx, being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

2. On the 25^th July 2016, or thereabouts, I received the claim xxxxxxxx from the County Court Business Centre, Northampton County Court, for the sum of £xxxxxxx.

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

4. The Claimant contends in their statement of case that the claim is for an alleged debt arising from a "non-regulated JD Williams account". I do not recognise the reference given nor the amount being claimed.

5. I am aware that "JD Williams" is a company which provides goods, and services, on credit terms, to its customers, via a mail order and online catalogue.

6. The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim in that the statement of case fails to;
i) state when the alleged agreement was entered into
ii) state how the debt arose
iii) detail what, if any, breach of any agreement, has led to this claim.
iv) detail how the sum claimed has been calculated

7. 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. I am unable to plead fully without further information. To do so would be guesswork. The Claimant did not provide any information to me prior to bringing this court claim.

8. In order to find out more information, on the 11th August 2016, I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to the Claimant Solicitors, Cohen Cramer, Suite 1B Joseph's Well, Hanover Walk, Westgate, Leeds, LS3 1AB. I requested the Claimant provide copies of the Agreement, and Notice of Assignment, as mentioned in their statement of case.

9. Additionally, on the 11th August 2016, I sent a formal request for a copy of the original agreement to Lowell Portfolio Ltd (Claimant) pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee. Any agreement with "JD Williams" would be a running credit agreement and therefore be regulated under the Consumer Credit Act 1974. [Exhibit A]

10. On 12^th August 2016, the Claimant's solicitors replied to my written request without the requested documentation. [Exhibit B]

11. The Claimant has not sent any of these documents to me.

12. The Claimant has failed to comply with s 78 (1) Consumer Credit Act 1974 and by virtue of s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

13. The Claimants statement of case states that the account was assigned from J D Williams (Creditor) to Lowell Portfolio Ltd (Claimant) on 20th December 2012. The Defendant does not recall receiving notice of this assignment.

14. It is denied that J D Williams (Creditor) 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. 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. This documentation should include;
i) The Agreement and all applicable terms.
ii) Notice of Assignment
iii) Default notice
iv) Statements of Account
v) List of transactions on the account

16. 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.

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

18. After filing my defence, with Northampton County Court, I received a letter on the 31^st August 2016, from the claimant's solicitors, Cohen Cramer informing me that the claim was now being dealt with by the claimant's in house solicitors. [Exhibit C]

19. On the 5^th September 2016, I received a letter from Lowell Solicitors, P O Box 149, Northampton, NN2 1BU, informing me that they were now dealing with the claim, on the claimant's behalf, including a copy of the claimant's directions questionnaire, the notice of the change of solicitor, and informing me that they had been instructed to proceed with the claim. [Exhibit D]

20. On the 12^th September 2016, I received my notice of proposed allocation to the Small Claims track.

21. I returned my completed directions questionnaire on the 22^nd September 2016, stating that I would be happy to attempt mediation.

22. On the 29^th September 2016, I received appointments for mediation, unfortunately, I could not continue with the mediation process, as I could not answer yes to all of the mediation requirements, this was due to still having not received the paperwork that I had requested from the claimant.

23. I received a Notice of Transfer of proceedings on the 10^th October 2016.

24. On the 5^th November 2016, I received the Notice of Allocation to the Small Claims Track (Hearing).

Statement of Truth

I, xxxxxxxxxxxx, the Defendant, believe the facts stated in this Witness Statement, to be true.

Signed ……xxxxxxxxxxxx………………………………

Dated ..........8^th January 2016......................................... ....

**charitynjw** · 8th January 2017, 21:53:PM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Hi slonie

Para #11, I'd put 'Neither the Claimant nor their solicitors have sent any of these documents to me'.

Are you going to try & 'shoehorn' Statute-barred in there somewhere?

**Diana M** · 8th January 2017, 23:38:PM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Originally posted by slonie View Post

I am pretty confident that this debt would be statute barred . . . I had read somewhere that if I hadnt mentioned statue barred in my original defence then they could ignore it if I mention in my witness statement.?

This is true.

If you haven't pleaded it in your Defence then you can't argue it in court.

A Defendant's WS is a response to the Claimant's POC.

A Claimant's WS is a response to the Defendant's Defence.

If the Claimant has disclosed further documents then the Defendant may want to file an Amended Defence.

The court process is very much prescribed but as a LIP you may be able to 'wing it' on the day if the DJ is willing to listen to your new legal arguments and ignore any opposition to newly introduced legal arguments by the Claimant.

How confident are you that this debt is SB and can you exhitbit anything to back that up in your WS?

Di

**slonie** · 9th January 2017, 17:26:PM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

Thanks charitynjw, and diana M,

I will amend para 11 as suggested.

I still havent received any paperwork from Lowell, so im still not confident in what this even is as yet. My rough plan was going to be, send the WS to the court and lowell, wait to see if I get anything from Lowell.

If not then apply to court to have it struck out, if i get papers, apply to court and lowell for an extension, so i can double check information, at which point, i would then be able to apply for an amended defence, and mention statute barred at that point.

I also have to let court know, that i am unable to attend, due to work commitments.

Other than that, once ive amended paragraph 11, would there be anything else i need to put in, or can it go like that?

Thanks for your help.

**Diana M** · 9th January 2017, 18:40:PM

Re: Lowell Portfolio Ltd vs S Lonie - Court date of 1st February - need to submit def

I'm afraid it's probably 'Now or Never' if you want to raise the SB legal argument. In fact you should have raised it in your Defence.

You can't just sit and wait to see what the other side put in their WS and Exhibits (which should be exchanged simultaneously) and then react to it.

The time for reaction will be at the hearing.

Any application to strike out the claim is likely to be dealt with at the hearing since the date is close. The fact you're not able to attend the hearing makes that difficult.

If you want/need an adjournment you will have to either get Lowells to consent (you'll have to pay the filing fee if they do). If they don't consent then you would have to make an application for an adjournment which is likely to be dealt with at the start of the hearing, which again will be difficult if you're not going to be there.

The court process isn't as elastic as you would like

Di

WON Lowell vs S Lonie - Court date of 1st February - need to submit defence