Lowell/BW claim form old Cap1 card - Help!***Claim Struck Out***

[experience]

Hi, I’ve received a County Court claim form regarding a Cap1 credit card account that is in dispute.

 

To summarise :

2001

Credit Card account opened

 

Late 2008 – made redundant - last repayment made on credit card (balance £1,7xx)

 

2009

-Default of £20xx placed on my credit file by Cap1

-Account passed to Fredrickson, Bryan Carter

-I requested a true copy of my CCA to Bryan Carter

-No CCA received so an account in dispute letter sent

-Account returned to Cap1.

 

2011 - Account sold to Lowell – the account was still in dispute so I didn’t think they were able to sell the account on?

- Account was passed around between Lowell, Red, Hamptons

 

2012

- Without prejudice full & final offer of 25% made to Lowell which was declined

- SAR requested & received. Cap1 advised that the CCA was not sent as they want £1

- I had already sent £1 in 2009 in my original CCA request (however it was to Bryan Carter). I did receive some sort of CCA which contains my signature, but it doesn’t include the terms & % rates so are they likely to have a true copy of my CCA?

- I request refund of the default charges including interest which is declined by Cap1

 

CCA in SAR:

 

2014

-Lowell chasing & BWlegal send a LBA requesting full payment

- County court claim received for £27xx inc fees

Particulars of Claim:

Things to note are:

- I haven’t received a true copy of my CCA

-The account was in dispute so can it be sold onto Lowell?

-End balance was £17xx, however they have been chasing for £20xx and have filed court amount as £27xx inc fees & interest

- I made a without prejudice offer – does this admit liability?

- I requested refund of default charges applied to account – does this admit liability?

[experience]

From what i have read the 1st things i need to do are get a CCA & CPR 31:14 request sent to lowell & bwlegal - is this correct and is there anything else i need to do?

[havinastella]

From what i have read the 1st things i need to do are get a CCA & CPR 31:14 request sent to lowell & bwlegal - is this correct and is there anything else i need to do?

 

No, you have it spot on for now.

[experience]

thanks, should i do this ASAP or should i leave it nearer the acknowledgement of service date so they have less time to produce it?

[havinastella]

Asap!

[experience]

great, thanks for the advice

[experience]

bwlegal have replied with the following:

 

I've got nearly 3 weeks until my defense deadline so i presume i should wait to nearer my deadline to see if they product a CCA?

[Desperate Daniella]

Hi experience,

 

You have sent the Acknowledgment to the Court, haven't you?

 

What they have sent is not a credit agreement. Capital One will not produce copies of the early agreements probably because they didn't have the Prescribed Terms so are not enforceable - and of course they don't want to admit to it.

 

Let's see what they send. It will probably be a reconstituted attempt at an agreement and with luck it will have glaring errors.

 

DD

[experience]

Yes I've logged on to MCOL and acknowledged the claim

 

I'm now awaiting my CCA

 

As for defense date - i acknowledged the claim 2 days after court issue - so will i have 28 days from the acknowledgement date or will i get 31 days (33 minus the 2 days it took for it to be served)?

[Argh!]

Hi experience

 

You get a maximum of 33 days from the date on your claim form to submit your defence no matter when you acknowledged service

[experience]

Great - thanks for letting me know!

[experience]

Defence date is nearing and Lowell have not complied with my CCA request. They have sent me a letter stating they have requested the CCA from Cap1 and the account is placed on hold until it is produced - but to date it hasn't arrived.

 

I've drafted a defence that refers to the account being put into dispute with Cap1 in 2009 and that it should not have been passed onto Lowell & isn't enforceable (points 5 & 6) - is this wise to include?

 

Also do i need to send evidence for points 5 & 6 to the court and Lowell by the defence deadline?

 

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 in the past had financial dealings with Capital One.

3. Paragraph 2 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served from either the Claimant or Capital One.

4. It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of Credit/Store Card agreement or default notice requested by CPR 31. 14, 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 how the Claimant has the legal right, either under statute or equity to issue a claim;

5. Prior to receipt of this claim, I have sent a total of 5 requests to Capital One & Bryan Carter & Co Solicitors for the original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. None of the requests were fulfilled and the account was put into dispute.

6. This account has been in dispute with Capital One since xx May 2009 and has been since they failed to acknowledge my Consumer Credit Agreement (CCA) Request, in line with s.77-s.79 of the Consumer Credit Act 1974. While my Consumer Credit Act request remains in default (outstanding), enforcement action is NOT permitted, under s127(3) of the Consumer Credit Act 1974 and this account should not have been passed onto yourselves.

7. On receipt of this claim I requested by way of a CPR 31.14 request and a section 77/78 for copies of any documents referred to within the Claimants particulars to establish what the claim is for. To date they have failed to comply to my section 77/78 request and remain in default and with regards to my CPR 31.14 request.

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

9. On the alternative, as 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.

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

11. It is denied that the claimant can add sec 69 interest to the amount claimed as per the County Courts Act 1984 It is my understanding that this is awarded at the courts discretion and therefore invalidates the amount claimed and is not a true reflection of any alleged indebtedness.

[experience]

Could anyone be kind enough to have a quick look at my defense and advise if i should include points 5 & 6?

[AndyOrch]

Points 5 & 6 confirm that you know all about the debt pre litigation...which therefore contradict the rest of the defence which I originally drafted.

 

Point 11 which has also been added is irrelevant at this stage.

 

Regards

 

Andy

[experience]

thanks Andy

 

28 days are up tomorrow since i filed my defense and no response from them - does this automatically get stayed and do i need to do anything if they don't file a response to my defense?

[AndyOrch]

Yes and no:-)

[experience]

thanks again Andy

[experience]

I've received a letter today from Lowell with a copy of a letter dated 25th April they have sent to the court

 

It simply says the claimant intends to continue with the claim

 

The court claim was issued 19/02/2014

 

They haven't sent me my CCA or the requested documents in my CPR 31:14 request

 

How do i stand on time, have they missed the deadline for it to automatically be stayed (66 days since the court issue date taking into account 2 bank holiday days)

[AndyOrch]

" intends " is implies...no point writing to you to inform you of this they may as well just make application to lift the stay if that's their intention and submit DQ,s

The claim is currently stayed

[experience]

thanks for the clarification Andy!

[experience]

Quick update - i received a copy of a Directions Questionnaire which BW have sent to the court - from what i gather it is asking for the case to be referred to the mediation service

 

Will the court act on the directions questionnaire if it is stayed?

 

I take it i just sit back and wait for the court to send me a direction questionnaire too if they do act on it?

[AndyOrch]

Both parties serve copies of the DQ on each other...mediation is offered and preferred by the courts in all small claims.If DQ,s have been served then the claim cant be stayed.... its progressing.

[experience]

I've rang the court who informed me the claim is progressing and told me i had to fill in an N180 form which i've downloaded

 

2 quick questions:

 

Should i agree for the case to be referred to the small claims mediation service - i dont see what this would achieve?

 

Also i'm a full time parent (unemployed) with no income/assets - do you think i should write to BW and inform them of this as it would save both parties the hassle of going to court for nothing - if their lies somehow did pull the wool over the judge's eyes & win all they would get is £1 per month #cantgetbloodoutofastone

[AndyOrch]

If you agree to mediation as all parties are expected to as per my last post you can raise the matter of no income or asset's so why are they wasting the courts time.

[experience]

Big thank you to the guys who gave me advice earlier in the thread - ended up in court a few days ago and Won on a technicality!

 

I didn't want to say too much on here prior to the hearing incase it was used in evidence against me

 

L0well failed to comply with a court order by submitting their WS paperwork late, I gave a request to the judge on the day that as they failed to comply with the court order that the claim should be struck out.

 

I had a brilliant Judge, as soon as we got into the hearing and without me saying a word he fought my corner - mainly over them failing to submit the required documents on time.

 

The lawyer said he struggled to get the required documents from the original creditor (Cap1), however the judge said they shouldn't have proceeded with a claim without the required documents, they failed to request an extension with the court and also failed to give an explanation for their late submission. The lawyer then said with claims that are old (e.g. over 10 years old) they are unable to get the required documents from the original creditor - to which the judge replied they shouldn't buy the debt then

 

We also briefly discussed the notice of assignment - they failed to submit one from the original creditor so i argued they had as much right as joe bloggs over the debt - to which the lawyer replied that's what people think however that is not true - not sure if anyone can clarify?

 

Prior to going into the court, the lawyer said that the CCA 1974 127(3) had been repealed - to which i said it hadn't and still applied to CCA executed prior to 2007 but he disagreed - if someone could give some clarification on whether he was right or not?

 

A major point the judge brought up was that their WS was written by a 'Litigation Executive' - this was a major point! I got a bit lost on this point but the judge pointed out they had no right to produce the WS and it should have been done by a lawyer? or by someone with direct access & knowledge of the case? Because of this the WS was invalid and could not be used!

 

And because they failed to submit the paperwork on time, if he adjourned the case it would breach a regulation (3.919 B?) and he referred to a Mitchell case regarding compliance with court orders and more seriously lawyers not complying which is more serious. By adjourning it would tie up the court's time which can be used on other cases.

 

He said twice i was in my right to be compensated for this case, but i was in 'the moment' and eager for him to strike the claim out that i didn't realize until i was going home that i should have requested costs! I would have certainly requested 18 hours @ £18 but i was in a rush for it to end in my favour that it didn't dawn on me at the time!

 

Glad that's over and done with - again a big thank you to everyone who gave me help!