Lowell/carter Claim form old cap1 debt.

[Good_Credit]

Hi Guys,

 

 

I am helping a friend who has received papers from Northampton County Court for a claim by Lowell Portfolio I ltd for £562.48. The solicitor acting on their behalf is Bryan Carter Solicitors.

 

 

A claim was issued against you on 05/03/2014

 

 

Your acknowledgment of service was submitted on 13/03/2014 at 16:32:25

 

 

Your acknowledgment of service was received on 14/03/2014

 

 

 

I have sent a CPR 31.14 Request to Bryan Carter via recorded delivery on 13/03/2014. I today (18/03/2014) sent a CCA with £1.00 postal order to Lowell via recorded delivery.

 

 

My friend told me he did have a capital one card many years ago and he defaulted. It was over £1000.00+ when he defaulted. He had been paying Lowell for many years but stopped when he lost his job. The amount was down to £343.55

 

 

Here are the particulars of the claim -

 

 

This claim is for £343.55 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 12/02/2009 and notice served pursuant to the law of property act 1925

 

 

Particulars - Capital One A/C - XXXXXXXXXXXXXXXX

 

 

And the claimant claims £343.55.

 

 

The claimant also claims interest pursuant to the S69 county court act 1984 from 12/02/2009 to date at 8% per annum amounting to £138.93

 

 

I would like to know what I should do next? When should I file his defence and what should the defence be?

 

 

Any help would be much appreciated.

 

 

Thanks

[Desperate Daniella]

Hi Good_Credit,

 

When was the account opened, and when did your friend stop making payments?

 

DD

[AndyOrch]

You file the defence 33 days after the date on the claim form (or perhaps a few days earlier)...in the meantime just wait for BC nonsensical missives about why he does not need to respond to your requests.

 

Regards

 

Andy

[Good_Credit]

Hi Guys,

 

 

Thanks for the replies.

 

 

My friend does not remember when the account was opened. He thinks it was 2002 or 2003.

 

 

My friend received a letter in the post from Bryan Carter today -

 

 

'We write further to your letter dated 13H March 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 be most properly 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.

 

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

 

We confirm that we are in receipt of your acknowledgement of service. As you will be aware a Claim was issued in this matter on 3rd March 2014. Please respond to the Claim using the Response Pack provided by the Court. You should comply with the deadlines outlined by the Court in order to avoid a default Judgement being entered against you.

 

 

The letter on the claim states 5th March 2014 but in their letter they wrote 3rd March 2014. Does that make a big difference?

 

 

Also what is the best defence for us to proceed with?

 

 

Thanks

[AndyOrch]

What did I say about nonsensical missives

[Good_Credit]

Hi Guys,

 

 

I would like to place an embarrassed defence. Can you please help me with the wording?

 

 

Thanks

[Tim-S]

I stand to be corrected here as i'm new, but shouldn't the CCA of been sent to the company owning the debt (Lowell), as BC would just palm it off.

 

Good_Credit, there are a few threads about with defence templates in, if you alter one of these to your own circumstances. Post it up here, minus any of your info, one of the guys will be able to help by looking over and amending if need be

[Good_Credit]

Mr x x xxxxxx

 

xxxxxxxxxxxx

xxxxxxxxx

xxxxxxxx

xxxxxxxx

3rd April 2014

 

 

In the xxxxxxxxxxxxx County Court

Claim number xxxxxxxxxx

 

 

 

 

Between Fv-1, Inc The Corporation trust company – Claimant

and

Mr xxxxxxx xxxxxxxxx - Defendant

 

 

Defence

 

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

 

5. In respect of that which is denied, on 13/03/2014 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter, proof of postage and proof of delivery attached marked Exhibit mysurname 1, 2 & 3

 

 

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

 

7. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

8. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

 

9. Further more, the Civil Procedure Rules in particular practice direct 32 requires that access is granted to the original documents, therefore I require the claimant to provide the defendant sight of the original credit agreement and any terms and conditions that they seek to rely upon in this action pursuant to PD 32

 

10. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Consumer Credit Act 1974 I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

 

11. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 10 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

12. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

"The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

 

 

13. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

 

14. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

15. Notwithstanding point 13, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

16. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

17. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

18. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

19. Alternatively if the court decides not to strike out the claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

20. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

21. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

 

 

Statement of Truth

 

 

I xxxxxx xxxxxxx, believe the above statement to be true and factual

[Good_Credit]

Would the above defence be fine. I want to submit it today if possible. I sent CPR 31.14 request on 13/03/2014 to obryan carter and cca request to Lowell on 18/03/2014

[AndyOrch]

Totally unsuitable Good Credit..take a look at some of mine.

 

Andy

[Good_Credit]

Can you please send me a link to the page? I have tried to look around. I want to send this in today.

[DonkeyB]

Mr x x xxxxxx

 

xxxxxxxxxxxx

xxxxxxxxx

xxxxxxxx

xxxxxxxx

3rd April 2014

 

 

In the xxxxxxxxxxxxx County Court

Claim number xxxxxxxxxx

 

 

 

 

Between Fv-1, Inc The Corporation trust company – Claimant

and

Mr xxxxxxx xxxxxxxxx - Defendant

 

 

Defence

 

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

 

5. In respect of that which is denied, on 13/03/2014 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter, proof of postage and proof of delivery attached marked Exhibit mysurname 1, 2 & 3

 

 

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

 

7. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

8. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

 

9. Further more, the Civil Procedure Rules in particular practice direct 32 requires that access is granted to the original documents, therefore I require the claimant to provide the defendant sight of the original credit agreement and any terms and conditions that they seek to rely upon in this action pursuant to PD 32

 

10. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Consumer Credit Act 1974 I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

 

11. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 10 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

12. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

"The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

 

 

13. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

 

14. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

15. Notwithstanding point 13, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

16. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

17. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

18. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

19. Alternatively if the court decides not to strike out the claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

20. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

21. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

 

 

Statement of Truth

 

 

I xxxxxx xxxxxxx, believe the above statement to be true and factual

 

We really need to stop regurgitating this stuff – it bears no relation to the claim made, and much of it is plain wrong.

[Good_Credit]

DEFENCE

 

 

 

 

 

 

State your full name, age and full postal address here and then state that;

 

In respect of the Claimant’s statement of case dated the (put date here), I , the Defendant respond to the same and I will say as follows:.

 

 

 

 

 

1. As to the first sentence of Claimant’s statement of case; It is agreed that I entered into the agreement on the 19 October 2005 as stated in the Claimant’s statement of case. It is denied that the agreement complies with s.61 of the CCA Act 1974 (as amended) and the Claimant is put to the strictest of proof in establishing the contrary of my contention as to this element of his claim.

 

 

 

 

 

2. As to the second sentence of Claimant’s statement of case, It is denied that I defaulted on the agreement as alleged and the Claimant is put to the strictest of proof in establishing the same and providing proof of his entitlement under s.87(1) of the CCA 1974(as amended) to entitlement to proceed to enforce the agreement upon which here lies. For the avoidance of doubt, no valid default notice pursuant to said section of said act was ever served upon me and the Claimant is put to the strictest of proof to the contrary.

 

 

 

 

 

3. As to the third sentence of Claimant’s statement of case, no such Notice of assignment was ever received by the Defendant as alleged. In accordance with s.196(4) of the Law ofProperty Act 1925, any notices required under this act must be served by way of registered post in order to render the same effective in law. The Claimant is, therefore, required to provide this Court with proof of service of the same pursuant to s.196(4) ofthe Law of Property Act 1925, failing which, his standing to bring this claim is denied and ought to be struck out in accordance with this Court’s powers under CPR Pt 1 the overriding objectives and CPR Pt 3.

 

 

 

 

 

4. In the light of the foregoing, it is denied that the Defendant is indebted to the Claimant as alleged or at all and the Claimant is put to the strictest proof onthe same and required to provide unequivocal evidence that any contractual relationship is extant between him and the Defendant, which, for the avoidanceof doubt is denied.

 

 

 

 

 

Statementof Truth

 

 

 

I believe that the matters set out above to be true.

 

 

 

Signed (your signature)……………………………………… …this (put date) of October 2013

 

(Your Printed named underneath)

 

 

 

 

 

Kind regards

[Good_Credit]

I found this on another thread. Is this something I could use? I am a little lost here to be honest. Any help would be much appreciated.

[AndyOrch]

Not sure where you are pulling those examples from GC but they are rather archaic and useless.

 

####Defence####

 

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.The claim is denied with regards to an amount due under an agreement.The Claimant/Solicitor has refused to disclose any agreement or statements on which its claim relies upon.

 

3. I am unaware of any legal assignment the claimant refers to within its particulars . I have no knowledge of who the claimant is nor ever been approached since the alleged assignment of over 3 years ago up until receipt if this claim.

 

On receipt of this claim I requested information pertaining to this claim from BW legal and Lowell's by way of a CPR 31.14 and a section 78 request.BW Legal response was that they wont comply and that its based on a simple contract which I should have in possession

 

Therefore with the courts permission the Claimant is put to strict proof to:

 

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

 

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

 

© show how the agreement was legally terminated to allow the claimant relief.

 

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

 

4. As per Civil Procedureicon Rule 16.5, 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 crediticon Act 1974.

 

6. 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.

 

 

Edit to suit and once you are happy with its content copy and paste into MCOL...print your receipt as proof of submission.

 

Regards

 

Andy

[Good_Credit]

Thanks a lot mate!

[Good_Credit]

Hi Guys,

 

 

Just a quick update I received a letter from the court asking me to fill in form N180 and return it. Should I tick the yes box for mediation?

 

 

Thanks

[AndyOrch]

Yes