Lowell solicitors letter before action

[Diana M]

Re: Lowell solicitors letter before action

Anyway cut a long story short the judge set aside the ccj . . . . The judge said I have 14 days to prepare my defence for the new hearing.

Does this mean I have to go back to court?
Or will this just mean I have to respond to a claim form?

First of all well done you for succeeding with your set aside application without having legal representation to help you in court.

The answer to your question is if the court Order says you must file a Defence within 14 days of the Order then that is what you must do. There will be a hearing listed eventually. Once a CCJ is set aside it's as if it never happened and you go back to square one - defending the claim.

Did you file a Draft Defence with your set aside Application and if so did it only mention the Statute Barred issue?

It seems from what you say that you are now free to file a 'proper' Defence so I would suggest you check out if there are any other legal arguments you can add into the mix just in case the SB argument isn't enough to defeat this claim. You won't be restricted to what you said in your Draft Defence.

My firm finds that 99.9 % of clients who come to us claiming a debt is SB find out it isn't.

Send a Subject Access Request to Vodafone to get the full history of the account including payment transactions. The proof of the pudding is in the eating (as they say).

The debt may have been assigned to Lowells but that doesn't excuse Vodafone from complying with a SAR.

This forum has an Authorised Representative from Vodafone on board so PM him to see if he can help you to get the information quickly.

I'll tag him to see if he can help [MENTION=19723]Lee Vodafone Company Rep[/MENTION]

Meanwhile you may wish to deal with the fact there's probably a CCJ registered with Trust Online and on your CRA files. Following your successful set aside (yay!) you don't currently have a CCJ so that needs to be tidied up

Di

[Diana M]

Re: Lowell solicitors letter before action

I've attached photo of original particulars of claim

I would send Lowells Solicitors a formal CPR 31.14 Request asking them to produce the documents they've mentioned in the Particulars of Claim which are:

1. The Vodafone agreement with the account number/reference (specifically mentioned in the POC).

2. The Default Notice (as mentioned in the POC).

3. The Notice of Assignment dated March 2014 (as mentioned in the POC).

This forum has a CPR 31.14 Request template here > http://legalbeagles.info/forums/show...382#post410382

If this was a set aside hearing it's possible that the claim has not been allocated to any 'track' yet.

Time to put them under pressure.

If there's a slightest question mark over the SB date you need to have a fall back position with other potential legal arguments.

Di

[Debtadvice78]

Re: Lowell solicitors letter before action

Hi

Thanks for all your help, I do appreciate it. No I didn't file a draft defence with the set aside application. My only concern with the SAR request is that my 14 days is up this Thursday so I need to get my defence in super quickly; I'll get the letter off to Lowells first thing tomorrow for proof of payment but I did request this in march 2016 and never received it, by their own admission they can't provide it and by my own bank statements no payment was made; I didn't and still don't hold any other accounts.
I could really do with some guidance as to how to set out and word the defence as I've never had to do this before. Many thanks again

[Diana M]

Re: Lowell solicitors letter before action

I didn't file a draft defence with the set aside application. My only concern with the SAR request is that my 14 days is up this Thursday so I need to get my defence in super quickly; I'll get the letter off to Lowells first thing tomorrow for proof of payment but I did request this in march 2016 and never received it, by their own admission they can't provide it and by my own bank statements no payment was made; I didn't and still don't hold any other accounts.
I could really do with some guidance as to how to set out and word the defence as I've never had to do this before. Many thanks again

Someone on this forum will help you with your Defence.

I'm not in a position to do that (because I have to consider my firm's insurance) but I'll try to give you a nudge in the right direction. Ask someone if the forum's template Defence would be a good starting point.

You may be able to address the SB issue in your Defence putting them on 'strict proof' to deliver the goods (evidence) if they want to challenge your positive assertion (that it's SB). That might have more punch than sending them a letter asking for details.

If they want to challenge your Defence (once it's been filed/served) then they can do that in their Witness Statement later on. You can also provide the court with your proof/evidence of your case in your WS later on.

The set aside took you back to square one.

My boss sometimes says "we don't litigate through correspondence" meaning let's not exchange letters when the facts/evidence produced/disclosed need to be signed and sworn in a document which can be put before the court.

The burden of proof is on the Claimant in legal proceedings.

Di

[Debtadvice78]

Re: Lowell solicitors letter before action

Hi I sent this on 03/03/16. Their response was that they cannot request a copy of the original agreement as their client has no obligation to provide a signed agreement and that inserting the sim and usage of equipment is taken of acceptance of the terms and conditions of the contract. I received nothing else until the set aside hearing; I'll attach some photos from their witness statement. Could you look at no 29 as it doesn't make sense to me; they're saying that the limitation period runs from 7 march 2010 to 6th march 2016 and that thief claim was 7th November 16 and within the 6 year period but by my calculations that's outside the period or am I reading it wrong?

[Diana M]

Re: Lowell solicitors letter before action

Their response was that they cannot request a copy of the original agreement as their client has no obligation to provide a signed agreement and that inserting the sim and usage of equipment is taken of acceptance of the terms and conditions of the contract.

^ ^ ^ So have they produced the Terms and Conditions of the contract?

Di

[Debtadvice78]

Re: Lowell solicitors letter before action

No they haven't

[Debtadvice78]

Re: Lowell solicitors letter before action

Hi, wondering if you can give me a nudge; ive put together my defense and wondering if its ok before i submit it tomorrow; i'll also be requesting proof of payment that Lowells have claimed (I know there was no payment) and send a SAR request off to Vodaphone. (Hopefully this will turn up in time for the next hearing).
1. The defendant has not acknowledged the debt in writing in six (6) years
2. The defendant has not paid any part of this debt in the last six (6) years
3. The defendant has reminded the Claimant that the debt has become statute barred in accordance with THE LIMITATIONS ACT 1980 (Section 5) on a letter dated 26^th March 2016.
4. The defendant requested copies of documents on 03/03/16 (Agreement and terms of the account; default notice, the notice of assignment; Statement & bills of account; details of how the amount had been calculated in accordance with Practice Direction Pre-Action Conduct Paragraph 3 and also in accordance with CPR 31.14 but the claimant has failed to comply with this request, (See 5. below).
5. The claimant is unable to provide the Agreement, terms and conditions of account, default notice, evidence of payment within the last six (6) years and full statement & bills of account (They have provided partial bills of account).
6. The defendant has requested evidence of any payments within the last six (6) years again on 16/05/17 the claimant is to put strict proof of any payments within the last six (6) years and the method by which this/these payments were made.
7. Accordingly the defendant seeks the claimants claim to be dismissed by the court as the debt is statute-barred under the Limitations Act 1980 Section 5.
8. I believe the facts stated in this defense are true.

I do appreciate all your help

[charitynjw]

Re: Lowell solicitors letter before action

Hi

Defence example - tweak it to suit.
http://legalbeagles.info/forums/show...t-Court-Claims

If this a mobile phone bill claim, & if it does not involve the Consumer Credit Act, scrub all the relevant paras.
Incorporate any/all of your draft, esp the SB (LImitations) bit.

A defence largely addresses the issues raised in the Particulars of Claim, though other issues can be introduced.
However, if you do not defend issues raised by the Claimant, they may well be deemed to be admitted by you, so it's important to make sure that you're covered for this.

[Debtadvice78]

Re: Lowell solicitors letter before action

Thank you so much

[Debtadvice78]

Re: Lowell solicitors letter before action

@pt2537 [MENTION=5553]charitynjw[/MENTION] I got my defence in on time; still haven't heard back from court with regards to confirmation from set aside hearing on 4th May or on my defence (I have called and they have a backlog, hence not receiving anything) but had a response from Lowells today from my letter requesting evidence of payment that they claimed was made on 30th November 2010 (which it wasn't); they have stated that their client has made the commercial decision to discontinue the claim and attached a notice of discontinuation which is great but I'm also a little disappointed as I was going to claim back my costs from them at the next hearing.
Any ideas on how I go about this?; I just find it unfair that they have successfully applied for a ccj that was statute barred at the time of their application and I've had to pay £255 application fee; take a day off work plus all the time I've put into getting this removed and I've got to pay £120 for their solicitors time at the hearing (unless this letter means they won't be pursuing that).
Would it be best writing a letter stating I want compensating or do I need to file a small claims case?
Or should I just let this go!
Any advice would be appreciated.
Thanks in advance

[pt2537]

Re: Lowell solicitors letter before action

@pt2537 @charitynjw I got my defence in on time; still haven't heard back from court with regards to confirmation from set aside hearing on 4th May or on my defence (I have called and they have a backlog, hence not receiving anything) but had a response from Lowells today from my letter requesting evidence of payment that they claimed was made on 30th November 2010 (which it wasn't); they have stated that their client has made the commercial decision to discontinue the claim and attached a notice of discontinuation which is great but I'm also a little disappointed as I was going to claim back my costs from them at the next hearing.
Any ideas on how I go about this?; I just find it unfair that they have successfully applied for a ccj that was statute barred at the time of their application and I've had to pay £255 application fee; take a day off work plus all the time I've put into getting this removed and I've got to pay £120 for their solicitors time at the hearing (unless this letter means they won't be pursuing that).
Would it be best writing a letter stating I want compensating or do I need to file a small claims case?
Or should I just let this go!
Any advice would be appreciated.
Thanks in advance

If theyve discontinued the Claim and the Claim was likely to be a small claims matter, then you generally dont get your costs.

That said, if you have a cost order against you that would technically be enforceable in my view, so perhaps its worth doing a deal with the Claimants solicitors whereby you dont have to pay them the costs, in return you wont pursue them for your costs. This seems to me the most sensible approach.

if you were to go after them for costs, you would need to show unreasonable conduct er CPR 27.14(2)(g) and that can be difficult im afraid

[Joanna C]

Re: Lowell solicitors letter before action

Our experience is that when a claim that would have been allocated to the small claims track is discontinued before allocation then then normal rule on the payment of costs applies. Proportionality is taken into account though.

[Parker6650]

Hi im new to the forum and in the middle of a lowell debt issue, and im hoping to get some info on how to proceed.

[Amethyst]

You'd be best off starting a new thread here http://legalbeagles.info/forums/new-content/21