Hi,

Making a fairly desperate request for help as now find myself at a loss as the way (best way) to proceed.

I have received a claim form for a CCJ out of Northampton County Court by Bryan Carter Solicitors and am now at a complete loss as how to proceed with a defence.

The claimant is Lowell Portofolio

Date of Issue was 8 July and I acknowledged on the 22 July with intention to defend in full and this was received on 23 July so I believe have until 9 August to submit my defence (33 days after the date of issue)?

The Particulars of the claim are:

This claim is for 4790.

The Amount due under an agreement between the original creditor and the defendant to provide finance &/ or service &/ or goods.

This debt was assigned to / purchased by Lowell Portfolio on 06/01/2012 and noticed served pursuant to the law of property act 1925.

Particulars: HSBC Bank PLC

Acc no ******/88888888

And the claimant claims 4900

The claim also claim interest pursuant to S69 county court act 1984 from 06/01/2012 to date at 8% per annum amounting to 975

(Including court fee and solicitors costs it comes to total of 6400)

I believe the claim is for an overdraft/current account

Account was assigned and the debt purchaser has issued the claim.

I did not receive the notice of assignment as I moved out of my old flat on 31 May 2012 the day before the debt was assigned,

then moved to a friends house for 2 weeks before going on to another flat which was to going to be another short term let but ended up staying there for 6 months but did not register that address as it was always going to be a short term stay as landlord was selling the flat (but took them longer than they thought).

I have no idea if I received a default notice.

But I have not received statuary notice of default sums at least once a year.

I ceased payments as I was unemployed and in a lot of financial trouble and was considering declaring bankruptcy but instead opened a safe bank account in 2008

- (I'm not sure of the exact date so do not know exactly when in 2008 I stopped using my HSBC account).

I didn't communcate financial problems to the original creditor and didn't make any attempt to enter in a debt management plan instead opened the safe account whilst I found out what my options were re bankruptcy.

I sent a CPR31.14 request after acknowledging the claim to Bryan Carter and received what I believe is there standard issue reply stating that it is a simple contractual matter and that in any event the Notices of default and assignment left the control of the claimant when they were dispatched to you - and asking me to refer to my own records and that they are not agreeable to to an extension in filing the defence.

But now I am unsure how to proceed with my own defence - I am not sure exactly what the debt is for as my overdraft I think was 1000-1500 and so am uncertain how this has risen to 4900 and whether this includes any other HSBC debt such as credit card? (I had a HSBC credit card I had stopped using by 2008).

I'm not sure whether to use what people seem to refer to as an embarrassed defence?

Or I'm not sure whether the debt is statute barred as I'm not sure exactly when in 2008 I stopped using the account and from reading the forums it seems to be complex as to when the date starts for a current account to be considered statute barred.

Any advice of options of how to proceed would be gratefully received as obviously the time to submit my claim is rapidly approaching, depression is kicking in and I'm very confused as to what the best step to take next is.

Many thanks in advance if you have any advice or suggestions

It would be a "holding defence" - not an embarrassed defence..

This is a current account and any activity with regards to funds ceased around 2008 - what type of requests/demands for payment were made ?

I suspect a lot of this could be charges and interest, although you seem to think there might have been a merging of a credit card in with this ? If this is so, then they should have said within the particulars of claim.

Your timeline is..

Issue date 08.07.2014 + 5 days for service = 12.07.2014 + 14 days to acknowledge = 26.07.2014 + 14 days to submit defence - 09.08.2014.. so yes.. this coming Saturday is the due date.

I will try and find someone to help..

On what basis do you think you would be defending ?

Unless you can establish when the last payment was made into the account or when they sent you a demand for payment, then claiming SB might be a bit difficult.

Thanks for reply,

I honestly don't know how to reply as I'm uncertain at present exactly what I'm defending

I have only been given the amount and the bank account details so I do not know whether it is an amount reached by interest and charges or whether there is any HSBC card debts included.

I'm uncertain as to what demands were made as to be honest the moment I set up and started using the safe bank account I unfortunately adopted the ostrich method and did not open or acknowledge any mail from HSBC or anyone else unless it was from new safe bank account.

Do you know exactly when you set up your safe bank account ? This should give you a timeline as to when you stopped using the HSBC account.

I think it is one of the issues you need to raise in your defence - that you have not been provided with an accurate accounting of hte claim.

I have flagged your thread for others on the site team. It is likely that you wont receive a response until tomorrow.. but dont panic.. someone will look in and respond.

Also just checked through the letters I have received from Bryan Carter and I do not think I have received a default note or letter before action.

I have lived at my current address for 9 months and

the first correspondence I have received here from either Bryan Carter or Lowell Portfolio is the letter on 8 July

stating that as you have failed to make repayments on the above account we have now issued litigation proceedings in the county court.

Would they have had to send me a default note or letter before action before beginning court action

(and is it indeed possible for me to prove not receiving such a letter?)

I'm certain I haven't received anything here as I've no longer been adopting the ostrich approach to my finances hence why I knew the Claimform was served.

I'll give my current bank account a call to see if I can find out exactly when the account was set up

And again many thanks for your replies so far and in advance to anyone else who can help - it's really, really appreciated at the moment!

The original creditor.. aka HSBC should have been the one to send you a Default notice /demand for payment, prior to selling the debt on to Lowell.

So in answer to your question - no - neither Lowell or BC would have had to have sent you one of these.

Lowell should however have sent you a Letter before Action.

Just to update; checked my credit file and can see no records of anything from HSBC in my report but I can see the set up date for my safe account which was 18 November 2008 - so it's looking very unlikely that it's statue barred.

So not sure of what next step should be as don't what or if any defence I have at this stage.

Hi Sister G...... here is a defence I have previously drafted for another poster in a similar position you now find yourself.You will have to edit it slightly to fit your particulars.

Your particulars:-

This claim is for 4790.

1.The Amount due under an agreement between the original creditor and the defendant to provide finance &/ or service &/ or goods.

2.This debt was assigned to / purchased by Lowell Portfolio on 06/01/2012 and noticed served pursuant to the law of property act 1925.

Particulars: HSBCicon Bank PLC

Acc no ******/88888888

And the claimant claims 4900

3.The claim also claim interest pursuant to S69 county court act 1984 from 06/01/2012 to date at 8% per annum amounting to 975.

Defence

The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. Paragraph 1, I accept that I have held a current account with Lloyd's Bank Plc. I have not serviced this account since 2009 due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. The amount claimed is far in excess of any agreed overdraft limit with Lloyd's Bank. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue.

2. Paragraph 2 is denied I have never been served a Notices of Assignment in accordance with s.136 Law of Property Act 1925.

3. Paragraph 3 is denied as per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed before even considering adding section 69 interest which I understand is at the courts discretion.

The claimant is also put to strict proof to:-.

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, which this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

5. On receipt of this claim I immediately requested documentation by way of a CPR 31.14 request, which was received by the Claimant on the 7th July 2014. The Claimant has failed to comply with this request. Therefore the claimant in their non compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Regards

Andy

Massive thanks for that - I will tweak according to my particulars and then is it ok/wise to post here to check I haven't made any obvious errors before submitting?

Absolutely not that it needs much...apart from the dates and claimants name

Hi

Thanks again for all your help.

I'm going to submit the following defence tomorrow and just wondering if I should also add that I did not receive a letter before action in my defence?

Defence

The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. Paragraph 1, I accept that I have held a current account with HSBC. I have not serviced this account since 2008 due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. The amount claimed is far in excess of any agreed overdraft limit with HSBC. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue.

2. Paragraph 2 is denied I have never been served a Notices of Assignment in accordance with s.136 Law of Property Act 1925.

3. Paragraph 3 is denied as per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed before even considering adding section 69 interest which I understand is at the courts discretion.

The claimant is also put to strict proof to:-.

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, which this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

5. On receipt of this claim I immediately requested documentation by way of a CPR 31.14 request, which was received by the Claimant on the 23rd July 2014. The Claimant has failed to comply with this request. Therefore the claimant in their non compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

They have not stated they have within their pleadings...you only agree or refute or accept their points at this stage.

Ah that makes sense

Once again thanks.

And anyway its already in the defence see (F)

And then once defence submitted is it just a case of waiting for their next move - nothing else I should be doing?

Waiting for a response yes within 28 days and if not the claim is stayed.

Defence submitted so will update when I get a response - but thanks again for help so far it has made a horrible situation at least approachable.

Update with responses now-

I have received Notice of Proposed Allocation to the Small Claims Track and the claimants Directions Questionnaire. They have said they will not be bringing any witnesses, Expert Witnesses and have suggested my local court and that they are open to using the Small Claims Mediation Service.

Bryan Carter have also sent a without prejudice offer that I pay back the full debt and costs totalling about £6300 in monthly payments and that I suggest an amount and they will decide whether that is agreeable.

In terms of proceeding just want to confirm that I fill in the Directions questionnaire and send a copy back to the court and a copy to Bryan Carter (registered post for both?)

In terms of filling it in I was going to agree to Small Claims Mediation, ask for my local court, I will not be using expert evidence and I'm a little uncertain of whether I include myself as a witness or whether this would all be covered by paper evidence provided?

Also I'm working away for certain dates in the Autumn and New Year - do I put down all these dates will this be viewed badly by the courts if I'm unavailable for certain periods?

Finally was wondering if I should respond to their without prejudice offer with my own without prejudice offer based on repaying the agreed overdraft in monthly sums based on amount suggested by My Money Steps?

Would be grateful if anybody can spot any errors with any of the above I'm suggesting or if there is anything else I should or should not be doing.

And once again thanks in advance for all of the advice and help.

Your local court is automatic so there should be no problem there -

Yes, complete and send the original to the court with a copy to Bryan Carter - a good idea to send via a tracked method of post and keep the receipts and check that they have been signed for - print off the signature slips from the RM website and keep those with your paperwork as well.

Yes, agreeing to mediation commits you to nothing and shows you are willing.

I am not quite sure what you need do about unavailable dates due to your work commitments - I am sure andyorch will look in and advise.

If you would feel more comfortable agreeing to a repayment schedule or do not consider that your defence is strong - then your suggestion to respond with your own terms is not a bad idea. Are there any charges you could request be deducted from the outstanding balance ?

I would state in your cover letter to the Court that you are unavailable on certain dates and ask the Court to avoid them when listing for a hearing.

As for witnesses, you state one. Yourself.

Thanks again for help - forms all completed and sent by signed for post and will update when I hear back.

Well a bit of a lengthy wait for an update but sent forms off in Sep '14

- had a Mediation call that Autumn which was fairly brief once I explained that I had had no details from Lowell about the claim so didn't know what I was defending

she quickly said it wasn't possible to go through mediation due to lack of information

- later that year (2014) I sent an email to inform the court of a change of address and then have heard nothing until today when

I have received a letter with notice of allocation to the Small Claims Track (hearing) saying the District Judge has considered the statements of case and questionnaires filed and allocated and the hearing of the claim will take place in September 2016.

To be honest come a bit out of the blue as presumed 18 months later that this had now not been pursued so now completely out of the loop as how to proceed.

It says each party shall deliver to the other party all documents on which they intend to rely no later than 21 days before the hearing -

but I still have had no breakdown as to what their claim is or any evidence they have

- do `i now need to request this

or do I wait for this to be sent before the 21 day deadline?

is there anything I can or should be doing now I have received this notice?

As always many thanks for your previous help and any advice you can offer now!

So you must comply with the directions by the dates stated and exchange (standard disclosure and prepare a witness statement).

Regards

Andy

Hi thanks again for response

For standard disclosure does this mean sending them and the courts the documents that I have sent to back up my defence and if so in my case would my documents be just sending proof that I sent a CPR 31.14 request?

For the witness statement - is this just repeating my original defence?

Should I supply these now or is better to do it nearer the deadline?

At what point should I receive their documents and can I then amend my witness statement if they suddenly start to provide the documents I originally requested?