Hello everyone.

I am helping my partner defend a recent claim received from Bryan Carter on behalf of Lowell.

There were some outstanding debts on my partner’s credit file upon our return from living abroad for the past six years (winter 2008 to winter 2014)

but all default dates were shown between March and May 2009 and have since dropped off as they were over six years old.

Since receiving the claim and prior to finding this excellent forum the claim was acknowledged

I posted an edited template found on another site to Bryan Cater stating the debt is statute barred and encouraging them to discontinue the claim.

A reply to this letter has been received alleging a payment of £1 was made to the account in July 2010.

Today after researching on the forum a CCA request has been sent to Lowell and a CPR 31.14 request to Bryan Carter.

I appreciate any help in dealing with this phantom payment and submitting an adequately worded defence.

Name of the Claimant?

LOWELL PORTFOLIO I LTD

Date of issue?

27 AUG 2015

What is the claim for?

1.THE CLAIMANTS CLAIM IS FOR THE SUM OF 671–, BEING MONIES DUE FROM THE DEFENDANT TO THE CLAIMANT

UNDER AN AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974 BETWEEN THE DEFENDANT AND CAPITAL ONE UNDER ACCOUNT REFERENCE

— AND ASSIGNED TO THE CLAIMANT ON 06/10/2009, NOTICE OF WHICH HAS BEEN GIVEN TO THE DEFENDANT.

2.THE DEFENDANT FAILED TO MAINTAIN CONTRACTUAL REPAYMENT UNDER THE TERMS OF THE AGREEMENT

AND A DEFAULT NOTICE HAS BEEN SERVED WHICH HAS NOT BEEN COMPLIED WITH.

AND THE CLAIMANT CLAIMS 671–

THE CLAIMANT ALSO CLAIMS STATUTORY INTEREST PURSUANT TO S.69 OF THE COUNTY ACT 1984

AT A RATE OF 8% PER ANNUM FROM THE DATE OF ASSIGNMENT OF THE AGREEMENT TO DATE

BUT LIMITED TO A MAXIMUM OF ONE YEAR AND A MAXIMUM OF 1000 AMOUNTING TO 53–

What is the value of the claim? 855–

Is the claim for a current account (overdraft) or credit/loan account or mobile phone account? Credit card

When did you enter into the original agreement before or after 2007? Unsure, but probably 2008

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. purchaser

Were you aware the account had been assigned — did you receive a Notice of Assignment? No. Had been living abroad between 2008 and 2014.

Did you receive a Default Notice from the original creditor? No.

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year? No.

Why did you cease payments? Financial hard ship.

What was the date of your last payment? Unsure, it is possible no payment was ever made.

Was there a dispute with the original creditor that remains unresolved? No.

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan? No.

Hi there

Welcome to CAG

So they are claiming a £1 payment.

Did you ever make a request for a copy of the agreement and send them the statutory fee of £1.00 - when do they claim the payment was made and in what form ?

It seems very odd that no payment is made for 2 or 3 years, then £1.00 is made and then nothing for another 2 or 3 years. They will need to prove the payment was made by your partner as a payment to be taken from the account. The scenario I mention above, the statutory fee can be used for whatever they want, however if paid to the account then it is an unsolicited gift but they cannot claim that you made payment to the account.

Your timeline is...

Issue date 27.08.2015 + 5 days for service = 31.08.2015 + 14 days to acknowledge the claim = 14.09.2015 + 14 days to submit defence = 28.09.2015

Did you ever make a request for a copy of the agreement and send them the statutory fee of £1.00 - when do they claim the payment was made and in what form ?

 

It seems very odd that no payment is made for 2 or 3 years, then £1.00 is made and then nothing for another 2 or 3 years. They will need to prove the payment was made by your partner as a payment to be taken from the account. The scenario I mention above, the statutory fee can be used for whatever they want, however if paid to the account then it is an unsolicited gift but they cannot claim that you made payment to the account.

No request was made for a copy of a credit agreement. My prior research had led me to understand that a £1 statutory fee can sometimes be applied against a debt, but this is most certainly not the case here.

The initial response I got from Bryan Carter before finding this forum was:

"We confirm that you last made a payment towards this account on 12 July 2010 in the sum of £1.00. The debt is therefore not statue barred and it is our client's position that the outstanding balance remains payable by you."

I have acknowledged the service and sent the two templates advised, one to Lowell and one to Bryan Cater and will wait as long as possible for the responses from the CCA and CPR requests.

Your timeline is... Issue date 27.08.2015 + 5 days for service = 31.08.2015 + 14 days to acknowledge the claim = 14.09.2015 + 14 days to submit defence = 28.09.2015

I appreciate the timeline, I had worked it out with a day more so this will save any embarrassment by filing a late defence and earning a default judgement.

My research so far reveals the following as an appropriate defence, I am led to believe statute-barred debt is an absolute defence. If anyone more knowledgable could give it the once over that would be much appreciated.

1. The Claimant's claim was issued on 27th August 2015.

2. The Defendant contends that the Claimant's claim so issued is a claim in contract and is statue barred pursuant to the provisions of section 5 of the limitation act 1980. If, which is denied, the Claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

3. The Claimant's claim to be entitled to payments of £855– or any other sum or relief of any kind is denied.

That is the correct defence to use if you are certain the debt is statute barred.

You do not have to wait to submit this defence, you can do it immediately if you wish

Just got a response from Bryan Carter regarding the CPR 31.14 request for the agreement, the assignment, the default notice and the statement of account.

"We confirm this matter will most properly 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. In any event the Notices of Default and Assignment left the control of the Claimant when they were dispatched to you. It is the original creditor's policy to issue agreements at the start of the contract and statements throughout the duration of the agreement and, in this regard, we ask you to refer to your own records."

How are you supposed to defend something without any paperwork? Any advice on the next step — statute barred defence has already been filed.

Just sit and wait. It'll be for them to prove that it's not statute barred in response to your defence and witness statement. As long as you know no payment or acknowledgement was made you will be able to pin them back when the opportunity arises later.

There is nothing more for you to do, downrights. You have submitted your defence, it is now up to them as shamrocker has advised.

Just an update for everyone.

The case went all the way to court but was dismissed.

Along the way Bryan Carter and Lowell never sent any of the requested documentation or witness statements and the day before the hearing had requested a two month extension as Lowell's new in-house legal team had taken over from Bryan Carter.

This was refused and as my partner submitted information via the clerk about no witness statement from Bryan Carter along with everything else it was dismissed in minutes.

Thank you very much for the help, I guess the key takeaway is that these things drag on so just keep to your own deadlines and good luck!!!

Many thanks for the update/conclusion downrights...its assists others reading/following your thread.

And well done on the outcome...I will amend your thread title accordingly.

Regards

Andy