Bryan Carter / Lowell Court Claim Form***Claim Discontinued***

[beerye]

Hi,

 

I hope someone can help me.

 

I have received a County Court Form for a Lloyds current account. So I sent a CCA to Lowell and Bryan Carter. I also sent a CPR 31.14 request to Bryan Carter.

 

I got this reply from Bryan Carter:

 

We write further to your recent letter 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. Practice 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 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 start of the contract and statement throughout the duration of the agreement and, in this regard, we ask you to refer to your own records.

 

We confirm we are not agreeable to an extension for filing your defence.

 

We recommend you seek independent legal advice.

 

Can anyone tell me what Practice Direction 7C point 1.4 (3A) and why they won't agree to an extension?

 

I filed the acknowledgement of service on 19 Jan, does this only give me 14 days to write a defence?

 

Thanks,

B

[AndyOrch]

Hi beerye and welcome to CAG

 

Just a couple of points for your consideration...you cant request a copy of the CCA for an overdraft...they are exempt from the CCA1974 except for part V.

Which version of the CPR 31.14 did you send there are 2 one for Credit Cards /Personal Loans and another for current accounts.

 

Practice Direction 7C point 1.4

 

(3A) The requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims to be issued by the Centre, unless the particulars of claim are served separately in accordance with paragraph 5.2 of this practice direction.

 

CPR 15. 5

 

Agreement extending the period for filing a defence

 

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

 

Regards

 

Andy

[beerye]

Hi Andy,

 

Thanks for your reply. I was advised to send the following CPR 31.14 request and a CCA request too.

 

---------

 

CPR 31.14 Request

 

On 18 January 2014 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:

 

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.

The notice of assignment.

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© 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

 

-----------

 

I didn't realise there was a separate one for current accounts and a CCA request wasn't valid for a current account.

 

What's the best thing for me to do now? Do I have 33 days from the claim form date (15 Jan) ?

 

Thanks again,

B

[AndyOrch]

Resend this :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?387483-LEGAL-CPR-31.14-Request-when-Claim-is-being-made-for-a-Current-Account

 

Yes you have 33 days in total if defending to submit a defence (5+14+14).

 

Perhaps if you could flesh the bones a little and tell us about this debt...its age/ history/disputes/ and travels (assignments)

 

Regards

 

Andy

[beerye]

Hi Andy,

 

Thanks for that. I will resend tomorrow. Should I mention that I sent the wrong document last time or say nothing?

 

It looks like a current account I had from 2000. I took out loans which I eventually couldn't afford to pay and I asked them to consolidate these. They told me I had the best deal and couldn't reduce the payments. In 2009 I couldn't make the payments so they took payments from my overdraft. I have hidden from these debts for a while now but would like to get them sorted. If I had to I would settle for making repayments before getting a CCJ.

 

Thanks for your help.

[AndyOrch]

No just send it again...but this time to Lowells...recorded delivery.

 

If you get chance tomorrow could you type out (verbatim) their particulars..less any identifiable data.

 

Regards

 

Andy

[beerye]

Hi Andy,

 

Particulars of Claim:

 

THIS CLAIM IS FOR XXXX.XX THE AMOUNT DUE UNDER AN AGREEMENT BETWEEN THE ORIGINAL CREDITOR AND THE DEFENDANT TO PROVIDE FINANCE AND / OR SERVICES AND / OR GOODS.

 

THIS DEBT WAS ASSIGNED TO / PURCHASED BY Lowell Portfolio I Ltd

ON 07/08/2012 AND NOTICED SERVED

PURSUANT TO THE LAW OF PROPERTY ACT 1925

 

PARTICULARS

Re: Lloyds

A/C No XXXXXXXXXXXXXXX

 

AND THE CLAIMANT CLAIMS XXXX.XX

 

THE CLAIMANT ALSO CLAIMS INTEREST PURSUANT TO S69 COUNTY COURT ACT 1984 FROM 07/08/2012

TO DATE AT 8% PER ANNUM AMOUNTING TO XXX.XX

 

I'm about to send the CPR request for a current account. Is there a reason why I would send it straight to Lowells and not Bryan Carter this time?

 

Thanks,

B

[AndyOrch]

Because he never responds...send it to both if you wish...I doubt either are aware its an Overdraft.

[beerye]

OK, I've sent the correct CPR request to just Lowell this time. Does it matter that they aren't aware that it's an overdraft?

 

Thanks,

B

[AndyOrch]

Not really but it helps if they know what they have purchased when you defend:madgrin:

[beerye]

Hi, I haven't heard anything back from Lowell, it will be 14 days including weekends on Thursday.

 

I have 33 days from January 15th to write a defence. Could someone tell me what I should include in the defence?

 

Thanks

B

[beerye]

Hi, can anyone help please? Is there anywhere on the site that can help me fill in my defence?

 

Thanks,

B

[AndyOrch]

Hi beerye your defence is not due until this weekend....search the 100s of other Lowell claim threads and look at their defences.....a defence is not a template

you don't fill it in you compile and draft it to suit the circumstances of your claim and why you dispute it.

 

Once you find a similar one edit to suit and post here for checking.

 

Andy

[beerye]

Hi Andy, thanks for your reply. I have found a thread very similar to my position and changed this ever so slightly to my own circumstances.

 

1. 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.

 

2. Paragraph 1 is noted. I have had financial dealings with Lloyds TSB in the past. It is denied I have any knowledge of the above Claimant or if any alleged debt was assigned to them. The Claimant has never made any contact apart from the issuing of this claim.

 

3. Paragraph 2 is denied. I am unaware of any legal assignment or Notice of Assignment.

 

4. Paragraph 3 is denied as the claimant has not complied with Section III & IV and annex B of the PD Pre Action Conduct as stated above they have never made any contact or request prior to the issuing of this claim. They even failed to serve a letter before action before issuing proceedings.

 

On receipt of the claim form the Defendant sent a CPR 31.14 request dated 28/01/2014 for a copy of the overdraft facility agreement, Notice served under Sections 76(1) and 98(1) of the CCA1974, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim.

 

This was signed for by the claimant on 30/10/2013. The claimant has yet to comply.

 

Therefore the claimant in their none 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.

 

Therefore 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 Notice served under Sections 76(1) and 98(1) of the CCA1974

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

 

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

 

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.

 

Until such time the Claimant can comply with my request for a copy of the Overdraft facility agreement/Notice served under Sections 76(1) and 98(1) of the CCA1974 it relies upon they are prevented from enforcing or requesting any relief as pursuant to the CCA 1974.

 

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.

 

Does this look like right defence for a current account overdraft?

 

Thanks for your help.

B

[AndyOrch]

Excellent...it certainly is a current account/overdraft defence...nearly as good as one of mine:wink:

[beerye]

Thanks Andy. Should I number these paragraphs or should I submit as is?

 

Cheers,

B

[citizenB]

Yes, number your paragraphs - it keeps it nice n tidy

[beerye]

Thanks for everyone's help. Just a quick update.

 

I received a letter from Court acknowledging defence on the 17th Feb. This stated the claimant has 28 days to contact the court.

 

I get a letter from BC 1 week before 28 days are up confirming a letter sent to court that the claimant wishes to proceed with claim.

 

They also mention 'We should also the grateful to hear from you in relation to without prejudice negotiations and you may contact us on telephone number

 

Is this standard or is this just a scare tactic to get me to pay instalments? I guess I should ignore and wait for the court letter.

 

What happens next? I still haven't got any documents sent to me. Will they just turn up with them at court?

 

Thanks again for your advice.

 

B

[AndyOrch]

Standard template response with the provision of " 'We should also the grateful to hear from you in relation to without prejudiceicon negotiations and you may contact us on telephone number "

 

Its your decision should you ignore and proceed.

 

Andy

[beerye]

Hi,

 

Unfortunately I have received a Notice of Proposed Allocation to the Small Track N149A. I knew it would come.

 

I have to fill in a Directions Questionnaire and post to NCCBC. It also says 'serve copies on all other parties'. Does this mean I should I send copies to BC and Lowells too? And do I have to sign these copies or leave blank?

 

Thanks

 

B

[AndyOrch]

Hi,

 

Unfortunately I have received a Notice of Proposed Allocation to the Small Track N149A. I knew it would come.

 

I have to fill in a Directions Questionnaire and post to NCCBC. It also says 'serve copies on all other parties'. Does this mean I should I send copies to BC and Lowells too? Just BC And do I have to sign these copies or leave blank? Leave theirs blank sign the Courts

 

Thanks

 

B

 

Andy

[beerye]

Hi,

 

I have received a Notice of Allocation to the Small Claims Track (Hearing). It reads:

 

'The hearing of the claim will take place on a date to be fixed by the court.' There is no date on the forms but a note to the claimant to pay £170 by 25 June. Is this the date of the hearing?

 

'Having considered the papers in your case, the Court believes that your case is suitable for mediation.'

 

It goes on to say that I need to call or email within 7 days of receipt of this order. It's dated 2 days before I received it. So is this 7 days from when I got it?

 

The form mentions that whether or not you enter into mediation that you should follow judges directions should it continue to court. If the mediation is not successful the following directions apply.

No later than 14 days before the hearing both the claimant and defendant exchange copies of all documents and witness statements that they rely upon at the final hearing.

Is this 14 days before 25 June or has this not been set yet? Should I agree to mediation?

 

Thanks for any advice in advance.

 

B

[AndyOrch]

Hi,

 

I have received a Notice of Allocation to the Small Claims Track (Hearing). It reads:

 

'The hearing of the claim will take place on a date to be fixed by the court.' There is no date on the forms but a note to the claimant to pay £170 by 25 June. Is this the date of the hearing? No

 

'Having considered the papers in your case, the Court believes that your case is suitable for mediation.'

 

It goes on to say that I need to call or email within 7 days of receipt of this order. It's dated 2 days before I received it. So is this 7 days from when I got it? Yes

 

The form mentions that whether or not you enter into mediation that you should follow judges directions should it continue to court. If the mediation is not successful the following directions apply.

No later than 14 days before the hearing both the claimant and defendant exchange copies of all documents and witness statements that they rely upon at the final hearing.

Is this 14 days before 25 June or has this not been set yet? No Should I agree to mediation? Yes

 

Thanks for any advice in advance.

 

B

 

[beerye]

Just a quick update to this thread.

 

I received a Notice of Trial Date on 25 June to appear in Court early September.

 

Then out of the blue the next day I received a letter from Brian Carter.

 

"Notice of Discontinuance of Proceedings

 

TAKE NOTICE that the Claimant hereby wholly discontinues this action against the Defendant.

 

We certify that we have given Notice of Discontinuance of proceedings to every Defendant against whom the Claimant

 

desires to discontinue."

 

A copy had also been sent to the Court.

 

I haven't had a letter to confirm this from the Court. Does this mean they have stopped all proceedings until they

 

wish to proceed in the future?

 

B

[AndyOrch]

It does in deed beerye ....but not if they wish to proceed in future...they would have to issue a further claim and then only with the courts permission.

 

Well done delighted for you.

 

Thread title amended to reflect the outcome.

 

Regards

 

Andy