Lowell - Capital One Short Agreement form urgent advice needed

[Browneyes1992]

I have to do my witness statement for my court case at Liverpool Civil Court on the 11th Jan Credit card £8500 debt. It was initially with MCOL who after mediation failed (i hadn't received all the documentation I asked for in my CPR and CCA requests) transferred my case. I just need some clarification.

I've received a copy of the notice of default from Capital One, a print out of account transactions and Statement Balances (not actual statements) and a copy of my the Capital One Short Agreement form with my signature from Oct 2004. They very curtly said I couldn't have a copy of "the Deed of Assignment" as it contains confidential information. I asked the "the Assignment" maybe I should have said "Notice of" but i also asked for "any other documents mentioned in the Particulars of Claim" .

1. I've found the defence to counter no copy of notice of assignment. and also to counter if they throw disclosure not necessary at me.
2. The notice of default may not be legal, what should the format be, what should I look for?
3. exactly what is the score with the short agreement form and what is the defence. should the prescribed terms have been on the front where i signed? If they come up with a set of terms and conditions from that time, does Carey v HSBC apply if not why not?
4. I think I have to file my defence by Wednesday and yes I am cutting it very fine, As well as the court do I have to send my defence to Lowell Solicitors AND Lowell Portfolio or just Lowell Solicitors by recorded delivery, Can I email the defence as a backup to the court and claimants in case of delays?
Also I hove not received a witness statement from Lowell as per the District Judges instructions.

Thanking you in advance.

[Browneyes1992]

Re: Lowell - Capital One Short Agreement form urgent advice needed

Also the debt was assigned in 2014 and the last payment was made on the account in 2013 so its not statute barred.

[cymruambyth]

Re: Lowell - Capital One Short Agreement form urgent advice needed

Hi someone will be along with greater detail, but you need to post up the documents with all identifiable details removed. The short application forms aren't 'usually' enforceable. The prescribed terms need to be within the agreement. They need to supply the correct t&cs for the agreement at the time if was taken out. It's difficult to give exact advice without the documents.

[Browneyes1992]

Re: Lowell - Capital One Short Agreement form urgent advice needed

Hi someone will be along with greater detail, but you need to post up the documents with all identifiable details removed. The short application forms aren't 'usually' enforceable. The prescribed terms need to be within the agreement. They need to supply the correct t&cs for the agreement at the time if was taken out. It's difficult to give exact advice without the documents.

Files as requested.

I've only scanned one statement page as they are all in that format.

The Agreement is difficult to read so I've magnified the two terms paragraphs by 100%.

[Browneyes1992]

Re: Lowell - Capital One Short Agreement form urgent advice needed

Also when I put the witness statement together if I mention any case law do I have to print out entire copies of the judgements?

- - - Updated - - -

Sorry If I'm asking stupid questions I have MS and suffer from MS fatigue so although I'm clever after a while I get tired and there is so much reading so can miss or forget stuff.

[nemesis45]

Re: Lowell - Capital One Short Agreement form urgent advice needed

Good afternoon,

The application form is not an agreement it's short of terms and conditions, also the DN I think should have a specific date for remedying the default.
The statement does Not comply with the requirements of CCA 1974 as it must be a certified current statement of the amount outstanding not an historical statement.

Is the app form as unreadable as it in the attachment?

Can you see anywhere in the terms and conditions any mention of further t's and C's being supplied at a later date or directing you to further terms in the full agreement.

I ask because Capone sends a booklet containing the full t's & c's when a card is issued.

So from what I can see this is another Lowell " solicitors " cock up!

nem

[Browneyes1992]

Re: Lowell - Capital One Short Agreement form urgent advice needed

To be able to read it I had to magnify it by 100% the print the copy and then look at it under a magnifier.
It says as well as lots of info on credit reference agencies.
"I have read the terms and conditions setting out the agreement with Capital One and, if my application is accepted, I agree to be bound by these terms and conditions, as amended from time to time. I understand and agree that Capital One may instead issue a premier card. I am over 21 years of age and earn at least £10,000 a year."
The last 2 paragraphs are about credit scoring and marketing.
I honestly don't remember if there were any terms and conditions, at that time I was undergoing tests for my MS and under a great deal of stress.

[Browneyes1992]

Re: Lowell - Capital One Short Agreement form urgent advice needed

Also The statement Is pages and pages of the same as I posted ending with the last payment and balance. Is that what you mean by a current certified statement?

[nemesis45]

Re: Lowell - Capital One Short Agreement form urgent advice needed

To be able to read it I had to magnify it by 100% the print the copy and then look at it under a magnifier.
It says as well as lots of info on credit reference agencies.
"I have read the terms and conditions setting out the agreement with Capital One and, if my application is accepted, I agree to be bound by these terms and conditions, as amended from time to time. I understand and agree that Capital One may instead issue a premier card. I am over 21 years of age and earn at least £10,000 a year."
The last 2 paragraphs are about credit scoring and marketing.
I honestly don't remember if there were any terms and conditions, at that time I was undergoing tests for my MS and under a great deal of stress.

I can confidently that Capone send the full T's & C's when the card is issued so there's not enough detail in that document.

Your WS :

If you quote case law state the name of the case and court + a short statement of what you intend to rely on from the judgment : e.g. In the Appeal Court Judgment in BMW Finance Ltd - v -Hart
Their Lordship decided that the date a contract was defaulted was the commencement of the relevant 6 year period in relation to the provisions of the Limitation Act 1980.
nem

[Browneyes1992]

Re: Lowell - Capital One Short Agreement form urgent advice needed

Thank you so much. If Lowell produce a t&cs from 2004 and try to claim its a reconstruction. Why oh why does Carey not apply. It's the only thing. Don't get. I think it's something to do with 2004 but not sure why.

[nemesis45]

Re: Lowell - Capital One Short Agreement form urgent advice needed

Thank you so much. If Lowell produce a t&cs from 2004 and try to claim its a reconstruction. Why oh why does Carey not apply. It's the only thing. Don't get. I think it's something to do with 2004 but not sure why.

A reconstituted agreement cannot just be cobbled together and recently that's what's been happening with Lowell claims.

A recon must have.

1.The debtors name and address as it was when the account was opened..

2, As above for claimant.

3. The T's & C's relevant when the account was opened.

4, T;s & C's relevant when the account was closed.

5. Any other documents mentioned in the t's and C's.

6. A Current signed and date statement of the account i.e. the amount outstanding.

Agreements signed prior to April 2007 should be the original signed agreement to satisfy the CCA request and to be produced in court.

Lowell will still try to pass off a poor recon as compliant.

nem

[Browneyes1992]

Re: Lowell - Capital One Short Agreement form urgent advice needed

it was the April 2007 date I couldn't understand just realised it was the changes in the consumer credit act 2006 that made the difference.

[Browneyes1992]

Re: Lowell - Capital One Short Agreement form urgent advice needed

Hi my court date is Wednesday. I submitted my defence which was received by the court on the 29th December 2016 as did Lowell Solicitors (the last day permissible by the court. I have the proof of deliveries. Lowell Sent their witness statement to me on the 29th December (Envelope franked on the 29th December, although the letter is dated 28th December) so i didn't receive it until the 2nd of January. Will the court strike their witness statement out as I know the court hadn't received anything from them by the 29th unless are they were allowed to file electronically?
The only new thing Lowell sent in their witness statement is a notice of assignment and some copies of chasing correspondence purportedly sent to me.

Anyway please find below the defence I submitted, I ran out of time to get it on the forum to have it checked before I sent it but would appreciate any comments and any advice on conducting myself at the court and what to take with me, aside from the original exhibits.

Thanking you in advance.

[Browneyes1992]

Re: Lowell - Capital One Short Agreement form urgent advice needed

Also they've lied in their Witness statement stating that on the 5th August they sent a response to my CPR "enclosing the notice of assignment and informing the Defendant that the Claimant has requested the other documents from the original creditor, and on receipt a copy would be provided" . They didn't and they've not put a copy of that letter as an exhibit.


They've asked that the court strike out the defence in accordance with CPR3.2(2) (a) the Defendants statement discloses no reasonable grounds for defending a claim,
Obviously they are basing this witness statement on the original no documents received defence.

[Browneyes1992]

Re: Lowell - Capital One Short Agreement form urgent advice needed

One thing I've just thought of. If I win tomorrow is the agreement then unenforceable? what happens then with regards to that debt does my credit file have to be changed is it like the debt was never there in the first place i.e. what do I do next?