set aside advice please

[echat11]

Isn't the question whether the alleged debts were statute barred at the time the Court proceedings were issued?

In post 1, the OP says 'I have credit card debt from nearly 6 years ago'.

In post 13, the OP says 'Also these debts are now over 6 years old.'

We need to know when the account was opened? It might be that the OP needs to send a SAR requesting information the account, to get concrete facts, i.e. date account was opened, last payment was made etc. Make sure you get Proof of Postage.

https://legalbeagles.info/library/gu...ccess-request/

[atticus]

Well, indeed.

[echat11]

Well, indeed.

The thing is that Lowell's knows the date the account was opened, it's well known tactics where they go for a CCJ, just before statuted barred.

[atticus]

indeed

[eire13]

Hello,

Thanks for previous replies. Yes unfortunately I think they just got the CCJ before they became statete barred. The earliest one the default was at the end of April 2016. So I believe they won't be statute barred.

So now the case has been set aside ready to put in my defence in a few days. I have just copied the example defence from here. Could someone look over it please and advise if I need to amend it at all. Also where do I post it. Is it to the local court?

In the [Northampton County Court Business Centre]

Claim No: H5KQ9X8P

Cxxxx xxxxxx

Claimant

And

Lowell Portfolio I Ltd

Defendant

DEFENCE

1.The Defendant became aware of the claim Hxxxxx from the Northampton County Court on 24^th January after checking the credit file.



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

3.This claim is for a 3 Credit Cards and a Catalogue Account agreements regulated under the Consumer Credit Act 1974.



4.It is admitted that the Defendant has previously entered into an agreements with Original Creditors for provision of credit.



5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim. As I had not received the original claim at my correct address I have no details to refer to.

6.The Claimant’s Particulars of Claim fail to state when the agreement was entered into.



7.The Defendant contends the alleged debt from JD Williams ref Bxxxxxxx balance of £1xx.20 is statute barred by virtue of Section 5 of the Limitations Act 1980 in that no payment or acknowledgment has been made for over 6 years.



8.The Claimants statement of case states that the accounts were assigned from Original Creditor to Carmel Nelson with no date stated. The Defendant does not recall receiving notice of any assignment.



9.It is denied that Original Creditors 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. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.



10.On the 7^th February 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 Portfolio Ltd. I requested the Claimant provide copies of the Agreements.



11.Lowell Portfolio has not sent any of these documents to the Defendant.

12.On the 7^th February The Defendant sent a formal request for a copy of the original agreement to Lowell Portfolio pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.



13.The Claimant has failed to comply with [s77 (1) / s 78 (1)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement.



14.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.

16.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.



17.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.



18.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.


If someone could advise if this is ok please and also where to send it.

Thaks so much

[echat11]

Send a copy of the Defence to the Court, make sure you get Proof of Postage.
Send a copy of your defence to the Creditors solicitors, make sure you get Proof of Postage.
Just to add, can't check the facts as such, as that information hasn't been posted.

DEFENCE

1.The Defendant became aware of the claim Hxxxxx from the Northampton County Court on 24^th January after checking the credit file.

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

3.This claim is for 3 x Credit Cards and 1 x Catalogue Account, agreements which are regulated under the Consumer Credit Act 1974.

4.It is admitted that the Defendant has previously entered into an agreements with Original Creditors for provision of credit.

5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards to the claim.
As I had not received the original claim at my correct address I have no details to refer to.

6.The Claimant's Particulars of Claim fail to state when the agreement was entered into.

7.The Defendant contends the alleged debt from JD Williams ref Bxxxxxxx balance of £1xx.20 is statute barred by virtue of Section 5 of the Limitations Act 1980 in that no payment or acknowledgment has been made for over 6 years.

8.The Claimants statement of case states that the accounts were assigned from Original Creditor to Carmel Nelson with no date stated. The Defendant does not recall receiving any notice of assignment.

9.It is denied that Original Creditors 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. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

10.On the 7^th February 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 Portfolio Ltd. I requested the Claimant provide copies of the Agreements.

11. Lowell Portfolio has not sent any of these documents to the Defendant.

12.On the 7^th February The Defendant sent a formal request for a copy of the original agreement to Lowell Portfolio pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

13.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.

14.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.

16.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.

17.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.

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

Statement of Truth

I believe that the facts stated in this Defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[eire13]

Hi echat11
Thanks for your reply. Just wondering is it the local court I send it too as it has been transferred there.
Thanks

[echat11]

Hi echat11
Thanks for your reply. Just wondering is it the local court I send it too as it has been transferred there.
Thanks

Yes, if it's been transferred. Make sure you have confirmation that they have received it. So call them in a weeks time from the date you send it.

[eire13]

Hi echat11

Thanks for your reply. I will do that. Just wondering if I can have some more help please. I have had a letter from the Solicitors they want to make a settlement and have sent me paperwork. They are offering a reduced amount and payments of 50 per month. Which I can't afford should I write back and try to get a lower amount per month.
They have said the catalogue debt is not statute barred. The default notice was on the 5th January so I don't understand why it is not statute barred. the other debts are around the same time. Could anyone explain how the statute barred works please.
Also they have sent agreements for the catalogue account and 2 credit cards. The catalogue account does not have my signature or a date on it and is not even on headed paper.
The 2 credit cards have just a tick for the customer signature with the date. is this acceptable please?

If someone could advise that would be great.

Also I seem to have put my name in some of the posts would I be able to remove it please.

If someone could help please I would be very grateful.

Thanks so much

[echat11]

When were these accounts opened?
Has the interest rate been 'varied' since the accounts were opened?
Did you get last payment details?

a) Could anyone explain how the statute barred works please.

You mustn't of made any payments or admitted the debt in writing over the last 6 years. I still believe it's statuted barred, maybe their solicitors know it is.

b) Also they have sent agreements for the catalogue account and 2 credit cards. The catalogue account does not have my signature or a date on it and is not even on headed paper.

It looks like they have 'reconstructed' the agreements, in which case the signature isn't necessary. But even with 'reconstructed' agreements they have to provide other information for example, if the APR has been 'varied'.

c) The 2 credit cards have just a tick for the customer signature with the date. is this acceptable please?

It looks like they have 'reconstructed' the agreements, in which case the signature isn't necessary. But even with 'reconstructed' agreements they have to provide other information for example, if the APR has been 'varied'.

d) Also I seem to have put my name in some of the posts would I be able to remove it please.

Contact Admin via the white triangle on the left hand-side.

Don't communicate or make any offers to them at this stage.

[eire13]

When were these accounts opened?
Has the interest rate been 'varied' since the accounts were opened?
Did you get last payment details?

a) Could anyone explain how the statute barred works please.

You mustn't of made any payments or admitted the debt in writing over the last 6 years. I still believe it's statuted barred, maybe their solicitors know it is.

b) Also they have sent agreements for the catalogue account and 2 credit cards. The catalogue account does not have my signature or a date on it and is not even on headed paper.

It looks like they have 'reconstructed' the agreements, in which case the signature isn't necessary. But even with 'reconstructed' agreements they have to provide other information for example, if the APR has been 'varied'.

c) The 2 credit cards have just a tick for the customer signature with the date. is this acceptable please?

It looks like they have 'reconstructed' the agreements, in which case the signature isn't necessary. But even with 'reconstructed' agreements they have to provide other information for example, if the APR has been 'varied'.

d) Also I seem to have put my name in some of the posts would I be able to remove it please.

Contact Admin via the white triangle on the left hand-side.

Don't communicate or make any offers to them at this stage.

Hi echat11

Thanks so much for this reply. I have been through the paperwork again. I am thinking these debts are now statute barred too. Would the fact they got a ccj in january which has now been set aside make a difference.

One thing I'm not sure of is where to find if the APR is varied or not.

I won't communicate until I hear back.

I don't have hardly any information on the catalogue account but this is for a small amount of just over £160

The first credit card account was opened June 2015. The last payment was September 2015. Default issued December 2015.

The second credit card is actually the same dates opened June 2015. Last payment September 2015 and default December 2015.

And no there was no correspondence for any of the 3 accounts with either the original creditors or Lowell.

So to me it seems they are statute barred. Please could you advise further as to next steps.

Thanks so much. x

[echat11]

The two credit card debts both look like they are statuted barred,

The 'cause of action' for the catalogue debt is when they issued the default notice, 5th January 2016 (I think). But as stated in your defence you didn't receive the default notice.

What's the actual date on the CCJ?

The APR is located on your credit agreements. What 'varied' means is if the interest rate was 23.5% in March 2014 and then it goes up to 25.9% in March 2015, the terms of your agreement has been 'varied'. they have to provide the original agreement plus the 'varied' agreement.

Check agreements for this information.

https://www.nationaldebtline.org/fac...rred-debts-ew/

[eire13]

Hi echat11

Thanks so much for your other reply. I have read the information about statue barred and now think all the debts are statute barred. What are my next steps
The 2 credit cards defaults were issued 1st December 2015 and no correspondence or payments after that. And I believe the catalogue was around the same time

The ccj was issued the 14th January but has since been set aside

On the credit card agreements it says variable in brackets after the APR. Was that what I needed to find
Any advice on what to do next would be appreciated please

Thanks for your help so far

[echat11]

Hi echat11

Thanks so much for your other reply. I have read the information about statue barred and now think all the debts are statute barred. What are my next steps
The 2 credit cards defaults were issued 1st December 2015 and no correspondence or payments after that. And I believe the catalogue was around the same time

The ccj was issued the 14th January but has since been set aside

On the credit card agreements it says variable in brackets after the APR. Was that what I needed to find
Any advice on what to do next would be appreciated please

Thanks for your help so far

I would write to them, explain that 'they have established that all 3 debts are statute barred' by providing the information that they have provided. Fill in the XXXXXXXXX.

Go through each account, write the following,

a) Credit Card Account Number XXXXXXX was opened June 2015. The last payment was made in September 2015. The Default was issued in December 2015.

b) Credit Card Account Number XXXXXXX was opened June 2015. The last payment was made in September 2015. The Default was issued in December 2015.

c) Catalogue Account Number XXXXXXX was opened XXXXXXX. The last payment was made in XXXXXXXXXX. The Default was issued in XXXXXXX.

Make sure you get Proof of Postage, see what they come back with.

[eire13]

Hi echat11

Thanks so much for your reply. I will write the above and see what they reply. Should I say I will be amending my defence. And should I put in a new defence now
Also I need to fill in the directions questionnaire.
Do I say it is suitable for a determination without a hearing or not please
Thanks