Lowells/Carter claimform Lloyds OD 'all charges'***Claim Discontinued***

[*muzzle*]

Name of Claimant: Lowell Portfolio 1 Ltd re Lowell Finance Ltd

Documents and payments send to: Bryan Carter Solicitors.

 

Date of Issue: 23 May 2014

What is claim for:

 

This claim is for 800 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 on XX 07 2013 and notice served pursuant to the law of property act 1925.

 

Particulars Lloyds A/C No xxxxxxxxxxx

And the claimant claims 800.

The claimant also claims interest pursuant to county court act 1964 from XX 07 2013 to date at 8%

per annum amounting to 50.

 

 

Value of claim: Total £980

Claim is for a defaulted current bank account/overdraft.

 

Unsure when entered into original agreement (See below) overdaft occured in 2007 so possibly original account pre 2007.

 

Claim is issued by the debt purchaser.

 

Unsure if a notice of assignation issued. (See below)

 

Original creditor sent default notice early 2008.

 

Unsure if Notice of default sums issued yearly. (See below)

 

Payments ceased because unable to pay the £20 a day bank charges which then became £40 a day.

The bank were telephoned to state unable to afford bank charges. No acceptable resolution could be reached. All further contact has been ignored.

Further info

 

I'm posting this to try and help the son of a friend.

 

As such I don't have the full details but have looked through a pile of paperwork they kept.

I think a fair bit has been thrown away.

 

The debt was originally around £100 of unauthorised overdaft with Lloyds in 2007.

Lloyds started adding bank charges including a £20 a day charge, which at one point i'm told doubled to £40 a day.

 

After an unsuccesful conversation with Lloyds the youngster abandoned the account and ignored further communications,

which went on to come from debt collection agencies and finally Lowells

who have now issued a claim through the courts via Bryan Carter Solicitors.

 

I would like to help him defend the claim rather than see him offer no defence and get rubber stamped a CCJ.

 

Two things strike me...

 

1) This debt arises from bank charges that were ultimately ruled unfair I believe.

There was a time when these could have been reclaimed,

sadly he didn't do that. So can these charges now be enforceable?

 

2) It's over six years since any payments/debt acknowledged and

I'm fairly certain the default notice is over 6 years old,

the last payments certainly were (I can check the date as they have the notice).

So i think this debt should be statute barred.

 

Any advice on the best way to proceed would be appreciated.

 

I'm thinking we need to get them to prove they have the appropriate proof of the debt in place

and that it's not statute barred but no idea how to go about that.

 

Also the claim is from the County Court Business Centre in Northampton.

This is no where near us and not his local court.

Should this be transferred to his local court?

And if so how is that done.

 

Thanks in advance!

[dx100uk]

ok look in the library top left green tab

 

send LOWELLS NOT CARTER

 

a CPR 31:14 request for a BANK ACCOUNT

 

get a copy of his credit file

see if it shows a defaulted date or if it shows at all.

 

get an SAR off to LLoyds to get all the statements

 

else give them a ring and ask the direct questions

 

when did they default the account

 

when was the last payment.

 

dx

[*muzzle*]

Thanks for the reply.

 

I've been away for a few days so been unable to go through the paperwork again until now.

 

There is an 'Enforcement Notice' served under section 76 of the Consumer Credit Act from Lloyds dated December 2007.

 

There is also a 'Default Notice' served under section 87 of the Consumer Credit Act dated January 2008.

 

Not all the bank statements are there.

 

So do we still need to do the SAR to Lloyds?

 

I'm going to get the CPR 31:14 organised for Lowells today.

 

Should he be filing an 'Acknowledgement of service' to the court? If so the claim form has some online details and password. Should it be done online or by post?

[dx100uk]

AOS on line at the MCOL site after registering

 

defend all

 

dx

[*muzzle*]

Is it ok to sign the CPR 31:14 request with a typed name? Don't like the idea of providing them with a signature.

 

And who should I put as the claimant? The claim form states "Lowell Portfolio I Ltd Re:Lowell Financial Limited"

[dx100uk]

type sign

 

and sent to LOWELLS

 

no point in sending nowt to carter

 

you'll just get a template response

 

dx

[*muzzle*]

Had a reply from Lowell as follows...

 

We are in receipt of your request for information subject to the Civil Procedure Rules.

 

Please note that as Fredrickson International is handling the County Court proceedings on our behalf, we have passed your request to them and they will be in contact in due course. Any further communication should be made directly with them using the below contact details.

 

Fredrickson International Ltd

Persimmon House

Weybridge

Surrey

 

Tel: xxxxxxxxxxxxx

 

We trust this clarifies the matter

 

Now a) They haven't provided any documents and

 

b) They mention Fredrickson International who are not mentioned anywhere on the claim.

 

Also, despite the fact no request was sent to Bryan Carter they have sent the following reply...

 

We write further to your letter dated xxxxxx 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 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.

 

As you will be aware a Claim form was issued in this matter on 22 may 2014 and we have received your acknowledgement of service. 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

 

We recommend you seek independent legal advice.

 

 

Now just to confirm, there is a default notice from Lloyds dated January 2008 and no payments or acknowledgement has been made since.

 

So I need to prepare a defence taking the above into account, I've had a brief search but haven't found anything that covered statute barred, as I think this would be, and the lack of documents/reply to cpr31.

 

Also is there some defence as this is largely bank charges, original £109 overdrawn due to DD the rest is bank charges?

 

I'm off to search some more but if anyone could point me in the right direction I'd be grateful. Got to get it submitted in the next few days.

[dx100uk]

i'd use the SB defence.

 

did he check his credit file?

 

dx

[*muzzle*]

He says he checked a few months ago and Lloyds wasn't on there. He says it's never been on there checked last year and apparently it wasn't on there then.

[dx100uk]

good

 

are all his old addresses in the linked addresses area?

 

seems like it was defaulted more than 6yrs ago

[as you've found from the jan 2008 letter]

 

so SB defence it is then I guess

 

you did ack the claim?

 

dx

[*muzzle*]

The claim was acknowledged, so think we have til Tuesday 24th to file defence.

 

Not sure about the linked addresses. I haven't seen the credit file myself. He has only had one other address, moved over six years ago and the default notice was sent to his current address if that makes any difference.

[*muzzle*]

I see he can submit a defence on MCOL, can it be submitted online on the 33rd day?

 

Do copies of the defence have to be sent to anyone else? In which case they would be printed copies through the post, do they have to arrive by 33rd day? posted by 33rd day? or is there some other timescale for the copies?

[dx100uk]

yes I make it the 24th too

though you might have an extra day because the bank holiday does not count

 

any how

to be safe file by midnight on the 24th

 

you can submit by mcol or by email

 

at this stage you do not have to multicopy anything.

 

as for the CRA bit, no that explains all ok

 

think i'm correct on everything.

[*muzzle*]

I have put together a draft defence as follows, would appreciate some input as to whether it is correct and appropriate.

 

Quick recap, this is a current account (opened 2007) that went overdrawn by around £100 and then had bank charges added that took it to just over £800.

 

Last payment into the account I can find was in Sept 2007.

 

Enforcement notice dated xx December 2007, stating agreement will be terminated xx January 2008.

 

Default notice dated xx January 2008.

 

CPR 31:14 request made but not complied with. (Carters template response)

 

POC

 

This claim is for 800 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 on XX 07 2013 and notice served pursuant to the law of property act 1925.

Particulars Lloyds A/C No xxxxxxxxxxx

And the claimant claims 800.

The claimant also claims interest pursuant to county court act 1964 from XX 07 2013 to date at 8% per annum amounting to 50.

 

Draft defence

 

1 The Claimant's claim was issued on 23 May 2014.

 

2 The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980, “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”. The claimant should already be aware that more than 6 years have elapsed between cause of action accrued and the court claim by their court submission.

 

3. On receipt of the claim form the Defendant sent a CPR 31.14 request dated 6 June 2014 for a copy of the agreement and overdraft facility confirmation and terms and conditions, Notice served under Sections 76(1) and 98(1) of the CCA1974, Notices of Sums in arrears under running account credit CCA2007 sec 86c and Notice of Assignment.

 

This was signed for by the claimant on 11 June 2014. The claimant has yet to comply.

 

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.

 

Therefore the Claimant is put to strict proof to:

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

 

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

 

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.

 

 

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

 

Some further thoughts

 

There POC are so vague but the defence is a detailed reply, is this a mistake? ( ie mentioning overdrafts and CCA1974 etc.)

 

Should I have included the following, which I see a lot of defences include, "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." ?

 

Should the sec 69 interest be challenged?

Edited June 22, 2014 by *muzzle*

[AndyOrch]

Responding to your PM muzzle.

 

The above is a defence I have previously drafted for other posters with regards to Overdraft claims.I note you have inserted the statute barred defence at 1.

If in fact the claim is statute barred point 1 is all that is required not the rest unless you are unsure and covering all bases?

 

You should include "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." as the debt has been assigned.

 

And if you propose to submit on line using MCOL then the defence does not require a Statement of truth.

 

Regards

 

Andy

[*muzzle*]

I'm helping a friends son prepare this defence, it's his claim,

I've seen the originals of the Enforcement Notice and Default notice and the bank statements covering that period of time,

and he is stating that no further acknowledgment or payment was ever made.

A sar has been put in to Lloyds but not provided yet.

 

I'm as sure as I can be in the circumstances that it is Statute barred,

but as this is for someone else I wondered if it was best to cover all bases.

I wanted to be sure that the claimant would have to provide the agreements and proof of payments if they were to continue.

 

 

I wonder if this is implied with just a statute barred defence anyway,

but not sure if you can leave things just implied

and was better to specifically state they would be required.

 

 

I also note that sometimes DCAs come up with 'phantom' payments to prevent statute barring

and I wanted to try and include some form of defence that went beyond that,

if you see what I mean.

 

But then perhaps it looks a weaker defence with the extra bits,

 

 

could this be the case, or will it do no harm to keep them in?

[AndyOrch]

It does tend to weaken the defence ...its either one or the other but if you just insert after 2. " Notwithstanding the above should it be alleged otherwise...."

 

That reinforces both angles of the defence.

 

Regards

 

Andy

[*muzzle*]

Ok so I now have the following, Is this ok or have I taken your suggested insertion too literally, and should the added "on the alternative..." be a seperate numbered paragraph?

 

Draft Defence

 

1 The Claimant's claim was issued on 23 May 2014.

 

2 The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980, “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”. The claimant should already be aware that more than 6 years have elapsed between cause of action accrued and the court claim by their court submission.

 

Notwithstanding the above should it be alleged otherwise...

 

3. On receipt of the claim form the Defendant sent a CPR 31.14 request dated 6 June 2014 for a copy of the agreement and overdraft facility confirmation and terms and conditions, Notice served under Sections 76(1) and 98(1) of the CCA1974, Notices of Sums in arrears under running account credit CCA2007 sec 86c and Notice of Assignment.

 

This was signed for by the claimant on 11 June 2014. The claimant has yet to comply.

 

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.

 

Therefore the Claimant is put to strict proof to:

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

4. 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.

 

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.

 

Hmmm. now I've tinkered with it and re read it a few times it does seem rather weak to be saying 'it's statute barred' and the immediately adding 'but if not then....' .

 

If I revert to a simple statute barred defence and the claimant disputes this, is there a further opportunity to ask them for proof of the debt or does everything have to be in this initial defence?

 

Is it safe to consider the statute barred clock started ticking, by the very latest, when the default notice under Sec 87(1) cca1974 was served? We have this original from Jan 2008 so is over six years old.

 

Sorry if this seems like a lot of messing about but I've got an alternative defence which is just for the statute barred element. Is this one worded Ok?

 

If both defences are worded ok, we can then make a final decision which one to submit after a discussion together. Hope that makes sense.

 

Here is the alternative draft defence.

 

1 The Claimant's claim was issued on 23 May 2014.

 

2 The Defendant Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980, “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”. The claimant should already be aware that more than 6 years have elapsed between cause of action accrued and the court claim by their court submission.

 

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.

 

Here's the redacted Notices. No payments or acknowledgements have been made since.

 

If anyone has any advice as to how reliable these would be as to the point at which the statute barred clock started ticking I'd be grateful. That's the only issue I see, when did the clock start? If these can be relied upon then that helps decide whether to just use the simple statute barred defence.

[AndyOrch]

Corrected your post above...both are very similar so either.Looking at the Lloyds Termination Notice its Statute Barred now 7th Jan 2014

[*muzzle*]

Thanks for the correction Andy.

 

Today is the last day for submitting the defence. The defendant isn't able to get to a computer until much later today so wondered if I could do it for him online.

 

I notice there is an option to sign it on MCOL as "I am duly authorised by the defendant to sign this statement - the defendant believes that the facts stated in this form are true".

 

Can anyone, with the defendants agreement, sign this? Or is that meant purely for the legal profession to use when representing a client?

 

Are there any consequences/differences if using that option?

 

Would like to get it done sooner rather than leave it until the very last minute.

[AndyOrch]

That is for legal representation...just submit as if its you.

[*muzzle*]

Carters now replied, having received defence, confirming the claimant wishes to proceed with the claim and that the claimant agrees in principle to mediation.

 

Also included a tel No for without prejudice negotiations.

 

Heard nothing from the court.

 

What happens next and what are the timescales? Is there anything that needs to be done by a certain date?

[AndyOrch]

If they wish to proceed you will receive a directions questionnaire (N180) to complete and submit by the date stated...this allocates the claim to track and transfers it to your local county court......but you may get a few more letters from BC before that offing settlement or even discontinuance.

[*muzzle*]

They attached a copy of their letter to the court manager instructing them to proceed.

 

Is it safe to just wait to hear from the court?

 

Would anything show on MCOL if questionnaire had been sent out? Currently doesn't show anything since defence submitted.

[AndyOrch]

It wont..... MCOL ends once a defence has been submitted.Just wait for the DQ to arrive nothing else for you to do.