Help for my mum - Lowells issuing court forms for a CCJ

[helpformymum]

Re: Help for my mum - Lowells issuing court forms for a CCJ

Ok I will do the CCA request for Carter and the SAR for Isme. Are there any templates please Amethyst?

Not sure I understand what you mean with the forthwith order though or how I would go about asking Carter to put an indefinite hold on the account!

[Amethyst]

Re: Help for my mum - Lowells issuing court forms for a CCJ

CCA letter (£1 stat fee - postal order is ok)

Dear Sirs,

Account or Reference No.:

I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974).I require you to provide me with a true copy, or reconstituted copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days).

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties. Your attention is drawn to ss.5(2), 3(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

In line with recent OFT Guidance (issued Oct 2010) surrounding Unenforceability, I presume you're aware that the OFT has stipulated that 'sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements'. This simply means that under these sections a debtor can pay £1 to get:

a copy of their agreement
copies of some of the other documents mentioned in their agreement
a statement of account


If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

make the debtor pay the debt before they're supposed to
get a court judgment against the debtor


So, in line with the OFT Guidance, and the Consumer Credit Act, please find attached my £1 payment, which is the statutory fee - note that these funds are not to be used for any other purpose.

Yours faithfully,




SAR Letter (£10 stat fee)

Data Protection Act 1998



Subject Access Request

[Name and address of the organisation]

Dear Sir or Madam

Subject access request

[Your full name and address and any other details to help identify you and the information you want.]

Please supply the information about me I am entitled to under the Data Protection Act 1998 relating to: [give specific details of the information you want, for example


copies of statements (between 2006 & 2009) held in account number xxxxx).]

If you need any more information from me, or a fee, please let me know as soon as possible.

It may be helpful for you to know that a request for information under the Data Protection Act 1998 should be responded to within 40 days.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you and can be contacted on 0303 123 1113 or at www.ico.org.uk

Yours faithfully
[Signature]

[helpformymum]

Re: Help for my mum - Lowells issuing court forms for a CCJ

Thank you.

Is the CCA letter sent to Carters as the solicitors or Lowell as the DCA?

[Amethyst]

Re: Help for my mum - Lowells issuing court forms for a CCJ

Cca to Lowell, sar to isme xx

[FlamingParrot]

Re: Help for my mum - Lowells issuing court forms for a CCJ

Ok I will do the CCA request for Carter and the SAR for Isme. Are there any templates please Amethyst?

In addition to the CCA request Amethyst posted above, you also need to send Bryan Carter the following letter:

The letter should be sent recorded delivery and signed using a computer font rather than your own signature. There is no fee and they should reply within 7 days, while they have 14 to respond to the CCA request.

Dear Sirs,

Re: XXXX v YYYYY
Case No: xxxx

CPR 31.14 Request

On [DATE] I received the Claim Form in this case issued by you out of the Northampton County Court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest your entire claim.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

1. The Agreement. Together with the relevant terms associated with that account, you will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.
2. The notice of assignment.
3. The default notice, compliant with 87(1) of the Consumer Credit Act 1974.

Although your claim is for a sum which does not exceed £10,000.00 and thus in all likelihood it will be allocated to the small claims track once I deliver my defence, however as I am unable to lodge my defence at this moment, the case has not been allocated to a track for determination upon delivering a defence, as a consequence the provisions of CPR 27(2) have no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing as a result to a modification, obliteration or othermarking, or feature, each version thus will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any, and all version(s) and include an obligation to recover and preserve such version(s) that are now in the possession of a third party.

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.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

Yours faithfully

[FlamingParrot]

Re: Help for my mum - Lowells issuing court forms for a CCJ

Is the CCA letter sent to Carters as the solicitors or Lowell as the DCA?

I would send the CCA request to Lowell as the account owners and send a copy to Bryan Carter for information, along with the CPR request I've just posted, which also goes to Bryan Carter.

Ok I will do the CCA request for Carter and the SAR for Isme. Are there any templates please Amethyst?

Do bear in mind that they have 40 days to respond to a SAR and, in principle, just 28 days from date of service to submit a defence, unless an extension of time is agreed with Bryan Carter, because they are not able to provide the documents.

What sort of information are you trying to obtain from the SAR?

[FlamingParrot]

Re: Help for my mum - Lowells issuing court forms for a CCJ

Not sure I understand what you mean with the forthwith order though or how I would go about asking Carter to put an indefinite hold on the account!

Forthwith means the full amount of the judgment is payable immediately. Most people wouldn't be in a position to pay the full amount (if they were, they could have the CCJ wiped by paying it within 28 days), so there's the option to apply for a redetermination to be able to pay in installments. This requires to fill in a N245 form, payment of a fee (which can be waived in certain circumstances) as well as an income and expenditure form to back up your installment offer.[/QUOTE] The information below is from the CAB, although we are jumping the gun a little here, since you haven't got a CCJ yet, ray: I'm just posting it for reference.

How to apply to change a court order

How you apply to get a court order changed depends on how much you can now afford to pay to clear your debts.

If you can afford to pay something

If you have some money and can afford to pay the debt off in instalments, you need to fill in court form N245 to apply. This is called an application for an Instalment Order.

You'll have to fill in your financial details on the back of the form and say how much you can now afford to pay. Return the form to the court, with the fee for the application. You may not have to pay the fee or you might get it reduced if you're on a low income.
If your creditor agrees to the new offer, the court will make a new order setting out what you offered. There won't be a court hearing.
If your creditor doesn’t accept your offer, court staff will decide what you should pay, according to guidelines produced by the Court Service. They will then make an new order.

If you don’t agree with what the court staff decide, you can write to the court and ask them to reconsider the order. You must do this within 14 days of the date of the new order being made. You don’t have to pay a fee to ask the court to reconsider the order and you don’t have to use a special form.

If the claim wasn't issued in your local court, the hearing can be automatically transferred to a court nearest to you.
Your creditor could also apply to get the court order changed if they disagree with what the court staff decide. If they do this, the court will arrange a hearing at your local court to decide what’s fair.

You can download court forms from Her Majesty's Courts and Tribunals Service website at: www.hmcourts-service.gov.uk.
For more information about working out your finances and drawing up a financial statement, see How to work out your budget. You can also use our budgeting tool to fill in an online financial statement.

For more information about getting court fees reduced or waived, see Help with legal costs.

It can be difficult to get the court to change the order. You can get help to fill in the court forms and to work out what you can afford to pay from an experienced adviser, for example, at a Citizens Advice Bureau. To search for your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.

If you can’t afford to pay anything at all

If you can’t afford to pay anything at all, you should apply to get the order changed using court form N244. This is a general application form. You'll need to explain on the form why you now can't afford to make the payments. You'll also need to send in a separate financial statement to show why this is the case. This is a statement showing how much money you have coming into your household, how much you spend and how much you have left over to pay back what you owe.

Put in as much detail as you can to explain your reasons and attach any evidence you have which explains your situation. For example, if you can't work because of illness and this means you don't have the money to pay the debt, try to include some medical evidence, such as a letter from your GP.

Return the form to the court, with the fee for the application. You may not have to pay the fee or get it reduced if you're on a low income.

If you can't afford to pay anything at all, your case will be referred to a judge, who will decide what to do at a hearing. It's better to ask for a hearing yourself, so that you have the chance to put your case to the court. There's space on form N244 for you to do this.
You can download court forms from Her Majesty's Courts and Tribunals Service website at: www.hmcourts-service.gov.uk.
For more information about working out your finances and drawing up a financial statement, see How to work out your budget. You can also use our online budgeting tool to fill out your financial statement.

For more information about getting court fees reduced or waived, see Help with legal costs.

[FlamingParrot]

Re: Help for my mum - Lowells issuing court forms for a CCJ

I believe it will have been a tick box terms and conditions when she opened the account but I still thought that without a signed credit agreement, although the debt remains outstanding and it would never be just wiped off, that a court wouldn't issue a CCJ over it!

Sadly, if the account was opened online from January 2005 onwards, a tick box fulfills the role of a signature, and no signed agreement is required.

I have a couple of letters chasing for payment but nothing threatening court action until the 48 hour notice one dated the same date as the claim itself. I can post them if it helps?

I posted earlier on another thread where they had done the exact same thing, give the debtor 48 hrs notice, which is does not comply with the pre-action conduct. This is the post, it was Bryan Carter on behalf of Lowell as well! :mad2: :mad2:

http://www.legalbeagles.info/forums/...644#post390644

[helpformymum]

Re: Help for my mum - Lowells issuing court forms for a CCJ

Thank you so much for all your help. I will certainly get those letters sent off in the morning and will let you know of any replies.

The help people get from these forums are an absolute godsend. Give the little people a voice .

[helpformymum]

Re: Help for my mum - Lowells issuing court forms for a CCJ

Hi guys

Finally got one response to the 3 letters I sent out and its from Bryan Carter Solicitors. Not sure I understand much of it though!

Dear

We write further to your letter dated 27 November 2013 requesting disclosure under Part 31 of the Civil Procedure Rules.

We confirm the Claim Form was issued by the Northampton County Court Bulk Centre and that the Court's Protocol was followed when issuing the Claimant's Particulars of Claim. Practise Direction 7C point 1.4 (3A) eliminates the requirement to attach the documents to the Particulars of Claim when they are issued by this Court.

We confirm this matter will most properly (and yes that's how they spelt probably) be allocated to the Small Claims Track as this is a simple contractual matter and Part 31 of the Civil Procedure Rules will therefore not apply. We confirm that we have nevertheless requested documentation from our client and hope to revert to you shortly, although this will not be with seven days.

In any event the Notices of Default and Assignment left the control of the Claimant when they were despatched to you.

It is the original creditor's policy to issue agreements at the date of the contract and statements throughout the duration of the agreement and, in this regard, we ask you to refer to your own records.

We recommend you seek independent legal advice.

Yours sincerely......


Any help on what this means and what can be done next will really help.

Thanks all

[CleverClogs]

Re: Help for my mum - Lowells issuing court forms for a CCJ

You might need to check into ownership of the house just to be sure. It is probably a good thing it doesn't show as her owning it at the moment as it has probably saved her from a bankruptcy threat by Lowells. However Bryan Carter may apply for a charging order on the house to secure the debt.

A charging order on property she does not own?

How might that be done?

If it did come back as a forthwith order then you can apply to have it redetermined into a forthwith order...

"Shurely shome mishtake?" ash the late Bill Deedesh ushed to shay.

Hast thou been at the cooking sherry again? :santa2:

[helpformymum]

Re: Help for my mum - Lowells issuing court forms for a CCJ

I hope and think your right Clever Clogs with regard to the charging order!

Are Amethyst and Flaming Parrot about with any advice on Carter's reply!

Don't have much time!

Thank you again

[Inca]

Re: Help for my mum - Lowells issuing court forms for a CCJ

:bump:

[FlamingParrot]

Re: Help for my mum - Lowells issuing court forms for a CCJ

Hi guys

Finally got one response to the 3 letters I sent out and its from Bryan Carter Solicitors. Not sure I understand much of it though!

Dear

We write further to your letter dated 27 November 2013 requesting disclosure under Part 31 of the Civil Procedure Rules.

We confirm the Claim Form was issued by the Northampton County Court Bulk Centre and that the Court's Protocol was followed when issuing the Claimant's Particulars of Claim. Practise Direction 7C point 1.4 (3A) eliminates the requirement to attach the documents to the Particulars of Claim when they are issued by this Court.

We confirm this matter will most properly (and yes that's how they spelt probably) be allocated to the Small Claims Track as this is a simple contractual matter and Part 31 of the Civil Procedure Rules will therefore not apply. We confirm that we have nevertheless requested documentation from our client and hope to revert to you shortly, although this will not be with seven days.

In any event the Notices of Default and Assignment left the control of the Claimant when they were despatched to you.

It is the original creditor's policy to issue agreements at the date of the contract and statements throughout the duration of the agreement and, in this regard, we ask you to refer to your own records.

We recommend you seek independent legal advice.

Yours sincerely......

Any help on what this means and what can be done next will really help.

Thanks all

It's a fairly generic, probably templated, response from BC. They are saying due to the amount claimed, this is likely to be allocated to the small claims track, however, at this stage, the claim remains unallocated, which is why they are also saying they will try and obtain the documents. :thumb:

They are also saying that the Claimant wouldn't have kept a copy of the default notice and notice of assignment, which is not something BC can state with any degree of certainty, as the Claimant is Lowell, and they wouldn't have issued the DN in the first place, it would have been issued by the original creditor, who would normally also have sent a letter stating the debt had been assigned to Lowell.

What you need to do is phone them and get them to agree to an extension to submit the defence. Make sure to ask for the full 28 days the CPR allows and get them to put it in writing. As they have agreed to request documents, there is no reason they shouldn't agree to an extension. Once you get their agreement, the court has to be notified, which can be done via email. :typing:

[FlamingParrot]

Re: Help for my mum - Lowells issuing court forms for a CCJ

I hope and think your right Clever Clogs with regard to the charging order!

A Charging Order can only be recorded against a property you own. If the property is jointly owned, they can only record a restriction. Obviously if your mum's name is not on the mortgage or the deeds, then no charge can be recorded against her. :thumb:

Are Amethyst and Flaming Parrot about with any advice on Carter's reply!

Don't have much time!
Thank you again

Sorry I wasn't around at the w/e. Have replied above. :santa2: