Bryan Carter/Lowell - CCJ Claim Form - Old Shop Direct Account

[AppleX0]

Hi all,

 

I will try to be as clear as I can with my story.

 

Took out a shop direct account back in 01/2007. After running up a debt of around £290, I could no longer afford repaying the account and in around 10/2008 they eventually placed a default against my name. This default is obviously due to drop off in the next few months now.

 

In late 2009 I made a couple of £30 payments to bring the debt to around £238 however I could no longer afford to repay them. I actually heard nothing further from Shop Direct / Littlewoods after this.

 

A few months ago (around late 2013) I get a letter from a company called Lowell claiming I now owed them the debt. I (maybe stupidly) decided to ignore them and today I got a letter from a company called Bryan Carters who have told me that they have started a CCJ application against me for around £420 (balance increased due to £100 interest and other associated costs). I've spoken with BC this morning and they have insisted that any action now must go through the courts and they cannot accept any part / full payment against the original balance of £238.

 

I have yet to receive the 'Claim Form' however I'd imagine it will arrive with me any day now (if they for once are telling the truth).

 

I've read around the forums' and most people at this stage are suggesting to raise a defence which I am happy to do. I guess my next stage is to CCA / SAR Lowell? I am just really after a couple of things; a) Obviously I've had this default hanging over my name now for the past 6 years, but now I could get CCJ'd and this will affect me for another 6 years (atleast). I want to know that if I file a defence I can still at a later stage offer to make a payment over this balance to ensure I don't get a CCJ. Will this option still be open for me further down the line? b) If there is anything else I should be doing which will help my case. I obviously don't doubt that I owe this debt, however I just want to make sure the correct process is followed by both them and I, and I don't particularly think I should have to have 12 years worth of ruined credit file for a debt so small.

 

Any help would be greatly appreciated. I will further update this thread once/if I get the claim form.

 

Other information to note:

- I've lived at the same address since account opening

- I can't recall receiving any notice of assignment but this may not be the case

- The default is placed by Lowell. I dont recall receiving a notice of default from them but again, this may not be the case

- The default amount is for £288 however the current balance is for £238.

 

Thanks!

[AndyOrch]

Hi Apple and welcome to CAG

 

If you could take time to read and complete the following if and when you receive a claim from the CCBC and provide any further information that you may not have posted above.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**(6-Viewing)-nbsp

 

Regards

 

Andy

[AppleX0]

Ok - that's great, thanks Andy. I will update this once I receive that.

 

Obviously I am worried about getting a CCJ, and just to put my mind at rest could you possibly answer the following. If I was to put forward a defence, would I later be able to pay off the full balance without having a CCJ against me or is it once I post a decence, its either all or nothing?

 

Thanks,

[AndyOrch]

Once a claim is issued the only possible chance of avoiding a CCJ is to defend all.The defence allows extra time and can also steer the claimant to mediation.

Then you have the possibility of a consent agreement to stay the claim...but if the claimant is adamant to no mediation and you lose..they get their judgment so nothing to lose for you defending.

 

If the judgment is paid within the time frames allowed within the judgment then it will not be recorded anyway.

 

Hope that explains your options.

 

Regards

 

Andy

[AppleX0]

So this morning the letter arrived from the court.

 

Find my responses below:

 

Name of the Claimant ? LOWELL PORTFOLIO I LTD

 

Date of issue – 09/05/2014

 

09/05/2015 + 19 days ( 5 day for service + 14 days to acknowledge) = 28/05/2014 + 14 days to submit defence = 11/6/2014 (33 days in total)

 

What is the claim for – the reason they have issued the claim?

 

THIS CLAIM IS FOR 240 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 XX/01/2009 AND NOTICE SERVED PURSUANT TO THE LAW OF PROPERTY ACT 1925

 

PARTICULARS

Re:Littlewoods

A/C No XXXXXXXX

 

AND THE CLAIMANT ALSO CLAIMS INTEREST PURSUANT TO S69 COUNTY COURT ACT 1984 FROM XX/01/2009 TO DATE AT 8% PER ANNUM AMOUNTING TO 100.00

What is the value of the claim?

 

Amount Claimed: 340.00

Court fee: 35

Solicitor's costs: 50

Total amount: 425

Has the claimant included section 69 interesticon (8%)within the total claim or is it shown separate within the Particulars but not added to the debt?

 

Interest is included in total claim, but also listed in particulars as shown above.

 

Is the claim for a current or credit/loan account or mobile phone account?

 

NO

 

When did you enter into the original agreement before or after 2007?

 

After - 01/2007

 

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.

 

Debt Purchaser has issued the claim

 

Were you aware the account had been assigned – did you receive a Notice of Assignment?

 

Not that I can recall

 

Did you receive a Default Notice from the original creditor?

 

Not that I can recall

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

 

Not that I can recall

 

Why did you cease payments:-

 

I originally stopped paying Shop Direct in the middle of 2008. I then paid Lowell two payments of £30 towards the end of 2009

 

Was there a dispute with the original creditor that remains unresolved?

 

No

[AppleX0]

Hi,

 

I have today received a letter from the court (15 months after sending off my draft order for directions which I have included below).

 

To give you some more context,

I have heard nothing from neither the courts nor the claimant since sending my draft order directions.

 

The letter I received today is below:

 

General Form of Judgement or Order

 

Time-limits run from the date on which this order was drawn up by HM Courts & Tribunal Service.

 

UPON READING the defence and amended particulars of claim:

THE COURT DIRECTS of its own initiative that:

1. The particulars of claim stand amended in accordance with the draft attached;

2. The defendant deliver an amended defence to the court within 3 weeks;

3. Either party may apply by letter within 14 days for this order to be varied or discharged.

 

The letter is dated 20th October.

 

I'm not entirely sure what this means, or why it has suddenly been bought up again now.

 

Any help on what I should do next be greatly appreciated, as I really don't understand what this latest letter is requesting.

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

o Copies of the Credit Agreement and any documents referred to within it which complies with the consumer credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon.

 

o Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,

 

o Document, contract or deed of assignment

 

o Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

 

o Copies of any statement or other document relied upon

 

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following o An amended defence sufficiently particularised in response to the documents supplied by the claimant.

 

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

MY ORIGINAL 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 Lowell's by way of a CPR 31.14 and a section 78

request. I have yet to receive response regarding either.

 

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.

[AndyOrch]

Simply means the stay has been lifted by the applicant...they have amended their particulars of claim...and now you are expected to submit a more particularised defence....as you have stated in your directions ....but why you have submitted directions or made an application is beyond me on a small claims claim ?

 

You should of posted before and after you submitted a defence to enable the correct advice.

 

Andy

[AppleX0]

That's fair enough. I copied the process from someone else's thread who was going through similar circumstances. I know better now at least.

 

So my next steps would be to compose a new defence? Would the defence I sent below not suffice? As stated before, I've not actually received anything from the claimant yet in terms of CCA, etc.

 

I appreciate your help andyorch.

[AndyOrch]

Could you possibly post a copy of the amended particulars AppleX0 .....I assume you been sent a copy?

[AppleX0]

I've not actually been sent a copy andyorch. The letter that was sent today only contained the General Form of Judgement or Order.

[AndyOrch]

Thought as much...so you can either contact the court and state that the claimant has failed to serve you a copy or you can make application to vary or discharge the order......choice is yours.

[AppleX0]

Ok - that sounds fair.

 

Would you have a template for either? If not, I'm presuming that it would be something like:

 

"I wish to make an application discharge the order on the grounds that the claimant has failed to serve a copy of the amended particulars"

 

Thanks!

[AndyOrch]

Perfect....but I will add the relevant CPR for you tomorrow so don't submit yet.

 

Andy

[AppleX0]

Thanks Andy!

[AppleX0]

Hi andyorch,

 

Did you have chance to find the relevant CPR to my case?

 

Thanks,

[AndyOrch]

The relevant CPR is 23

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part23

 

Regards

 

Andy

[AppleX0]

Thanks for that andyorch.

 

I cannot find within the CPR whether I should also send a copy of my discharge application to the claimant as well? Should I?

 

Thanks,

[AndyOrch]

You should always file and serve a copy...its expected by the court in civil proceedings

[AndyOrch]

Post a copy of the completed N244 here before submitting so it can be checked.

[AppleX0]

Hi andyorch,

 

I have attached the PDF here.

 

Thanks!

[AndyOrch]

Fine.... I would also add the relevant CPR.....pursuant to CPR 23 and also add that that they failed to serve in compliance with the DJ XXXXXXX Directions dated xxxxxxxx

[AndyOrch]

You should also be asking them to impose sanctions/or else order or even strike out the claimants claim....for failing to comply with the courts directions.

[AppleX0]

Thanks for your input andyorch - I have updated response 3 (What order are you asking the court to make and why?) to read the following:

 

Pursuant to CPR 23, I wish to make an application to discharge the order on the grounds that the claimant has failed to provide me with the amended particulars. I believe sanctions should be imposed against the claimant, or strike out the claimant's claim for failing to comply with the courts directions.

[AndyOrch]

Now you need to add the relevant CPR for striking out....

 

Here is an example application and draft order

 

Section 4 – tick yes (and attach a copy of the Draft Order I have prepared for you – see below);

 

Section 5 – tick without a hearing;

 

Section 6 – leave blank;

 

Section 7 – state the date set for the trial/hearing;

 

Section 8 – put District Judge

 

Section 9 – put The Claimant

 

Section 9a – leave blank

 

Section 10 – tick the evidence set out in the box below

 

In the box (under s.10) write the following:-

 

1. On (put date) the court made an order giving directions upon the parties. Under paragraph 3 of the order, the court gave substantive directions for the Claimant to comply with by 4pm xxxxxxxx. A copy of the order is served herewith.

 

2. The Claimant has failed to comply with the order, therefore, the Defendant is prejudiced from her entitlement to file and serve an amended Defence against the claim pursuant to paragraph 4 of the order.

 

3. The Defendant respectfully requests, therefore, that this court strike out the claimants’ claim CPR r.3.4(2)© and CPR r.1.1(2)(f) and she relies upon the authority of the Court of Appeal in Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 on this point of law where the Appeal Court sent out a clear message to all litigants, represented or not, confirming that a party’s failure to comply with a rule, practice direction or order is no longer tolerated and the party in default of the same will face severe sanctions so as to give effect to Lord Jackson’s reforms of civil justice.

 

4. A copy of the above authority is served herewith and the Defendant respectfully invites this court to read the same.

 

 

DRAFT ORDER - EXAMPLE

 

In the (put name of court) county court Claim no. (put claim no.)

 

Between:

 

Defendant

 

-and-

 

(Claimant’s name) Claimant

 

 

DRAFT ORDER

 

Before_(leave blank)____District Judge sitting in the_(put name of court)___County Court

 

Upon reading the Defendant’s application dated (put date) and evidence served in support of the same

 

 

IT IS ORDERED

 

1. The Claim made by (put claimant’s name) is hereby struck out without further order.

2. Permission for the parties to apply to vary, set aside or appeal this order is refused.

3. No order as to costs is made in respect of the Claim or the Defence.

[AppleX0]

Thanks for the advice andyorch - I sent the form end of last week. They however returned it today as I had not attached a £50 cheque with the N244.

 

I presume I will have to pay this £50 fee to make my application. They only mention that they accept cheque, however I do not own a cheque book. Will a postal order suffice?