Carter/lowells Claim - old 3 mobile debt, disputed returned phone - help!!

[players4you]

Hi All,I have received a claim form from Bryan Carter for a Lowell debt relating to a Three Mobile account back in 2008.

 

I did have the phone but sent it back as there was no reception. I phoned Three a few times.

 

I did not send the phone back recorded delivery. I may have the odd copy of an old letter to three saying that I didnt want it etc.

I may also have a letter to three some years later when they were chasing the debt saying that I dispute the monies is owed as I was not provided with the service I have paid for.

 

I let the contract run for 2 months as a gesture of goodwill.I wrote to Lowells/Bryan Carter by email explaining that the account was in dispute.

I also asked them to provide a copy of a signed agreement. They said they didnt need to as I could get all the information from Three and get copies of my Bill.

 

They confirmed the account was first connected to the network on 18th Nov 2008 and that this constitutes acceptance of terms and for this reason they do not have to provide a signed contract etc.

I feel that CPR may be of no assistance here if they don’t have to provide anything.Not sure at all how to handle this.Any help greatly appreciated.

[ericsbrother]

your plroblem is what was said at the time may not be recorded so you will need to do the running to prove debt doesnt exist or that Lwells dont own the debt and so have no rights to use the courts to claim any monies. If Lowells own the debt they are supposed to have the paperwork so that goes against them. The Brig or DX100 will probably know the procedural aspects of this better than most so consider my scribblings a bump to your post.

[players4you]

Thanks - much appreciated.

 

I could send them a CPR asking for the assignment notice. If they dont have it then jobs a good un.

 

If they do then it might be a fair cop. Can I enter a defence and then if they have the assignment negotiate repyament terms I wonder

[citizenB]

Can you please let us know the date of issue of the claim - top right hand corner of the claim.

 

Also please type out exactly what is said on the claim - the reason they have issued it.

 

You will not get CCA as this is a service agreement. Once you let us know what is said on the form then we can advise what you ask for by way of CPR and whether you also have to use both CPR 31.14 and Part 18 to get the information you require.

[players4you]

Thanks so much for your help

 

Issue date 2 Oct

 

POC read:

 

This Claim is for 546.16 the amount due under an agreement between original creditor and the defendant to provide finance and/or services and/or goods.

 

The debt was assigned to/purchased by Lowell Portfolia Limited on 4/3/2011 and noticed served pursuant to the law of property act 1925

 

Particulars

Re Three Mobile

A/C No *******

 

And the claimant claims 546.16

 

The claimant also claims interest pursuant to s69 county court act 1984 from 04/3/2011 to date at 8% per annum amounting to 112.76

[citizenB]

Ok, your timeline is as follows:

 

Issue date 2nd October -+ 5 days for service = 7 October + 14 days to acknowledge - 21 October + 14 days to submit defence = 4th November. Y

 

Whilst you will not receive an "agreement" because this is a service contract - they have actually mentioned one therefore you are entitled to a copy!!

you are also entitled to a copy of a statement of account and also the Notice of Assignment.

 

So send a CPR 31.14 - the link below takes you to the draft in the library. You will need to read it carefully and amend where necessary. Send to Bryan Carter by Recorded or Special Delivery post.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?387484-LEGAL-CPR-31.14-Request-Request-for-information-when-a-Claim-has-been-issued.

[players4you]

Thanks Citizen.

Do I need to enter that I will be defending yet.

I should point out that I do not want to have to go to court or risk a CCJ at all as am close to six years for others.

 

Carters also say that there is £75 of call charges but my recollection of it is that I did not use it.

As I said, sadly due to illness at the time, I cant remember a whole lot and dont have copies of anything really

[AndyOrch]

" I should point out that I do not want to have to go to court or risk a CCJ at all as am close to six years for others. "

 

Not sure what you mean by the above players could you expand?

 

Regards

 

Andy

[players4you]

Sure, I would rather settle with them than actually have it go to a hearing. I am only interested in pushing them in the hope they will give up, unless I have a good case.

 

I dont feel that I have a good case based upon my lack of evidence etc

. I dont want to risk a CCJ.

 

Hope that makes it clearer.

 

Thanks for your help

[AndyOrch]

Ah ok I thought you was referring to the claim becoming Statute Barred...once a claim is issued the clock stops.

 

Just because a small claim has been bought against you and a claim form issued, this doesn’t mean you are not allowed to contact the claimant directly. In fact the court encourages you to try and settle the claim without the need for a court appearance. So, try and resolve your dispute directly with the claimant if you can.

 

Regards

 

Andy

[players4you]

Can someone answer a query please.

When doing the CPR do Acknowledge service stating I will defend.

Or do I just CPR and see what happens?

[AndyOrch]

CPR requests are to request documents and information pertaining to a claim...Acknowledgement of Service is the process of responding to a court summons...both should be done independently.

 

If you fail to AoS on time the claimant attains a Judgment by default.

[players4you]

Thanks, I guess the question I am asking is do I have a defence?

Should I tell them in the CPR letter that I am submitting a defence

[AndyOrch]

It already states that in the CPR 31.14 request...hence the request.

 

I dont know if you have a defence ...do you?

[players4you]

Thanks. I understand now.

 

Re the defence..... I dont really know.

Its not SB.

I am unsure if they will have the documents.

I guess its a good defence if they dont or dont comply to the CPR.

 

I think that can be my defence then.

BUT if I am left with just "I sent the phone back and asked to cancel the contract because the reception was bad" and with no proof - then perhaps not.

 

What do you think Andy?

[AndyOrch]

Could you bring their particulars of claim forward players..let me refresh.

 

Andy

[players4you]

Issue date 2 Oct

POC read:

This Claim is for 546.16 the amount due under an agreement between original creditor and the defendant to provide finance and/or services and/or goods.

The debt was assigned to/purchased by Lowell Portfolia Limited on 4/3/2011 and noticed served pursuant to the law of property act 1925

Particulars

Re Three MobileA/C No *******

And the claimant claims 546.16The claimant also claims interest pursuant to s69 county court act 1984 from 04/3/2011 to date at 8% per annum amounting to 112.76

Much appreciated Andy

[AndyOrch]

Right its one of the 1000,s of lowell standard Particulars issued for the last batch of delinquent debts they bought.

 

Ok submit your CPR 31.14

 

You can request the agreement/Notice of assignment/and statement of account as to how they have quantified the amount claimed. So adapt the CPR to reflect those 3 docs.

 

Then complete your acknowledgement of Service on line using MCOL and the password provided on your summons.You have to register to use this service so follow the instructions before logging in.

 

Defend all.

 

Regards

 

Andy

[players4you]

Thanks so much.

If I submit a defence and the claim turns out legit, presumably I can withdraw?

Do you mind if I post my defence here so that you can verify I am on the right track?

[AndyOrch]

They will struggle in my opinion to disclose the relevant agreement that this relies upon (Mobile I assume) If they do yes you can withdraw your defence.

 

Of course I will check your defence.

 

Andy

[players4you]

Thanks very much Andy. Intended defence below:

1. Paragraph 1 is nether admitted or denied with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') the Claimant has yet to disclose any Agreement.

 

2. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to

contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

6. 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.

[AndyOrch]

Thats a good start players but you need to include a little detail of it being a phone contract and that the phone was faulty and not fit for purpose...therefore it was returned.A short synopsis of the providers lack of response and what was agreed about the contract.

 

It needs to be stated that the provider was in breach of the agreement for either a not supplying a replacement or and not terminating the contract.

 

Regards

 

Andy

[players4you]

Again, thanks Andy

 

To be honest I am pretty bamboozled of how to put the additional points in legal speak. Also, I sent the phone back due to a poor signal rather than it being faulty.

 

I cant afford to get to the point where a judge is deciding based on my defence anyway as I wouldnt risk going that far due to the fear of CCJ.

 

I cant help but feel the only defence I am happy with is 'you dont have the documents/proof' as I cant prove when/if I sent the phone back.

 

Any thoughts on this much appreciated.

[AndyOrch]

A defence with substance and truth has far better chance than a vague defence which is looking for loopholes to attain success.Either way unless an effective defence is submitted you are going to get a CCJ...unless you settle or pay in full within the given period.

 

Dont worry about the legal speak I can do that...just nudge your thread a few days before its due.

 

Regards

 

Andy

[players4you]

Hi Andy,

I take your point!

I will acknowledge service and give you a shout before the defence is due, assuming of course they havent given up by then!