** WON - DISCONTINUED ** Help with LOWELL court claim

[Chris11]

I have been dealing with a claim made by LOWELL on behalf of BT broadband I sent off the CPR 15.5 asking for a copy of the agreement and received this reply, any help and what to do next and advice on my defence would be greatly appreciated


Dear Mr.....

Client Name: Lowell Portfolio I Ltd
Our Reference:....
Balance: £483.54

We confirm receipt of your letter dated 21 May 2019. Thank you for confirming you are in receipt of the Claim form in regards to this matter.

As Your debt relates to a former telecommunications matter which is not regulated by the Consumer Credit Act 1974. This means that the original creditor is not required to retain a copy of the Agreement and therefore we are unable to request a copy of this document.

Our client is under no obligation to disclose the Deed of Assignment to you. This is a private record of a contract between our client and the original creditor, the terms of which are commercially sensitive and confidential. No part of the Deed of Assignment could provide, support or assist in any Defence you may wish to raise and you have neither need nor right to be privy to that content.
The Deed of Assignment is a confidential agreement between our client and the original creditor containing information to which you are not entitled to see. Our client will not disclose this information to you and no other agreement/novation agreement exists or has relevance to this matter.
We confirm that our client has not claimed to have entered into any contract directly with you, nor to have been a party to your contract with the original creditor. The benefit of that contract was lawfully assigned to our client pursuant to Section 136 of the Law of Property Act 1925 and the required Notice of Assignment was sent to you. A copy of the Notice of Assignment has been attached for your reference. Please also regard the Notice of Assignment as a formal demand for payment.
After reviewing your account we can see that you have filed the Acknowledgment of Service in regards to the Claim. This provides 28 days from the service date of the Claim, in this case being the 20 May 2019 for you to file your response. Please ensure you respond to the Claim within the specified timeframe.
If you wish to speak with a member of our team, please telephone us between 8:00am and 8:00pm Monday to Friday or between 8:00am and 2:00pm Saturday on 0113 335 3334.
Yours sincerely,

Lowell Solicitors

[jaguarsuk]

Okay, I'm assuming you meant the 31.14 request not 15.5 and that you left the part about the CCA in the letter.

You haven't entered into a credit agreement with BT and they are correct they cannot provide you with one under the CCA 1974. However, you must have entered into some sort of contract/agreement with BT if they are claiming money was owed and as a result they do have to provide a copy of that agreement to enforce this alleged debt.

A court cannot enforce a contract without first knowing what the terms of that contract are and if the original creditor has not retained a copy and Lowell don't have a copy (if they had it believe me they'd have sent it) then that's pretty fatal to their case.

They're correct about the deed of assignment, however have they provided you with Notice of Assignment from BT or just their own? Section 136 of the the Law of Property Act 1925 talks about the obligations of the assignor not the assignee, so in the the absence of a copy of the Notice of Assignment from BT or providing the Deed of Assignment they are not able to prove themselves to be the lawful owner of the debt.

Finally did you get full use of the service until the termination of the contract? As if they cut off your service then there is no loss to BT after that point, therefore any claim for the whole of the contract would not be legitimate.

I think you are going to need to post up the Particulars of claim and confirm the deadline for filing your defence?

[Chris11]

Thank you for your reply, no I didn't use the service at all as far as I remember I ended up in hospital with heart failure and couldn't work so missed the first payment and they cut me off.

I will post a copy of the letter I sent them.

[Chris11]

Dear Sirs, Claim Number:...
Request for documents mentioned in a statement of case under CPR 31.14

On 16/05/2019 I received a County Court claim from yourselves of which I have acknowledged receipt indicating my intention to defend in full.

To enable me to file my defence and/or counterclaim, I require inspection of documents you mention in your statement of case ahead of filing my defence on 15/06/2019 The documents I require are:

1.agreement with BT PLC
2.Notice of Assignment
3.Deed of Assignment

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

You should note that this claim has not yet been allocated to a specific track and the provisions of CPR 27(2) are of no effect. Had your claim not been issued through CCBC the Claimant would have been obliged to attach copies of the documentation upon which it relies to the Particulars of Claim.

I, as Defendant, am entitled to see the documents on which the Claimant relies and which you must produce at trial. Disclosure at this stage will enable me to fully plead my case and further the Overriding Objective.

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter.

If you require more time in which to comply with this request you must tell me in writing and confirm your agreement to an extension of the time allowed for me to file my defence as allowed under CPR 15.5 so I may notify the court.

Due to the limited time scale please email myself and the court in addition to sending your agreement to the address for service so that the court may be made aware.

Should it be the case that I have to file my defence without being in receipt of these documents, I shall have to ask the court to order upon receipt of all necessary documents and being able to properly assessing my position that they order you pay the cost of amending my defence should I deem it necessary.

I look forward to hearing from you.

Yours sincerely

[jaguarsuk]

Nope, You haven't asked for a credit agreement, you have done everything correct there and they are just sending you a load of rubbish because they can't provide the information they need to win the claim.


You can amend the Example Defence to your own situation, but basically it's:

Deny entering into agreement with BT Plc, uou requested a copy of the agreement to prove you did, they have refused, to determine the terms of an agreement and liability of a party under an agreement they will be required to produce it, they haven't provided a notice of assignment from BT (if they didn't) and so you don't believe they own the alleged debt.

[Chris11]

They attached these to the email regarding deed of assignment.

[Chris11]

I may be wrong but I think they got the debt from a different debt Company so I don't think that letter is actually from BT as it says for and on behalf of BT

[Chris11]

Do I need to reply or send anything else to lowell or just submit my defence now? And any help with how to word my defence and what to say will be greatly appreciated.

[Chris11]

Any help with this from anybody please?

[jaguarsuk]

There's no value in replying to them, litigation by correspondence achieves nothing and they'll just keep reiterating the same blurb. There are two ways to deal with this depending on your aversion to risk and financial position.

Any application to the court carries a risk of the losing party having to pay the successful party costs, so if you were to apply to the court to strike out the claim and lose potentially as well as having already paid for the application you could end up paying the claimants costs of defending the application.

That said, the Solicitors have basically admitted they cannot evidence you entered into a contract with BT Plc and that if they ask BT to evidence it they won't be able to, therefore an application for summary judgement to dismiss the claim is appropriate.

If you choose this option you'll file a form and Witness Statement, the content of the WS will be similar to the below.

If you don't want to risk costs and/or do not have £255 to pay for an application to the court you will defend on the same basis.Use the formatting in the Example Defence to put in the below.

1.The Defendant received the claim [Claim Number] from the Northampton County Court Business Centre on XX/XX/2019.

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

3.This claim appears to be for a telecommunications agreement with BT Plc.

4.It is denied that the Defendant has entered into an agreement with BT plc.

5.On the 21/05/2019 the Defendant sent a request for inspection of documents mentioned in the Claimant’s statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors to requested the Claimant provide a copy of the Agreement.

6. Lowell Solicitors responded by refusing to provide a copy of a credit agreement regulated under the Consumer Credit Act 1974 when none was requested and stating they are not able to obtain a copy of any agreement between the Defendant and BT Plc, which avers they are unable to evidence the agreement stated in their Particulars of Claim. Now produced is a copy of that response marked CQ1.

7. For the court to make any ruling in a claim for breach of contract as alleged by the Claimant the terms of said contract should be presented to the court and evidence that both parties entered into said terms.

8. 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.

9. As the Claimant have admitted they are not able to evidence their claim, the Defendant believes it to be an abuse of process, that the Claimant has no real prospect of succeeding on the claim or issue and there is no other compelling reason why the case or issue should be disposed of at a trial.

10.The Defendant respectfully requests the court orders the Claimant to provide the necessary documentation in order for The Defendant to fully plead his case else pursuant to CPR 24.2 the Claim be dismissed.

11.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.

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

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.
Sign
Date

[Chris11]

Thank you for that, I'm am unable to work at this time due to my condition so I really don't have the money to pay for an application.

I am using the online money claim website to file my defence so do I just attract their email to my defence and label it CQ1 and do I need to include a copy of the letter I sent to them or not?

[Chris11]

Sorry **attach their email

[jaguarsuk]

Yes just attach it and label it, you don’t need to include your letter as only the response is really relevant.

[Chris11]

Hello so just an update on this, I have received a cop of the questionnaire completed by LOWELL to have the case referred to small claims mediation service.

So what does that mean exactly?

Any help and advice and what I need to do will be hugely appreciated please.

[Amethyst]

That will be their copy of the directions questionnaire. The court will send you a copy and tell you when to file and serve it by. Lowell often do theirs a bit early.

So the directions questionnaire basically tells the court how to manage the case, tells them which court to transfer it to, And any special requirements e.g. for witnesses disabilities et cetera.

It is usually best to say yes to mediation just in case the claimant send you all the relevant documents before the hearing so you can come to an instalment or settlement arrangement outside of court. The mediation is done on the telephone, a mediator calls you and asks you a couple of questions and then put you on hold while they talk to the other side and then come back to you and tell you what they said, basically. There is no obligation to come to any agreement and of course if you don't have documents evidencing their case you can just told mediator that at the start and mediation will end.