Northampton Claim by Lowell/Vanqius *** Claim Struck Out ***

[Alloyz1]

In any consumer agreement there a three main negotiation terms-

Value, repayment period and a default term.

 

The default term is a term you both refer to should you default on an agreed payment. It stipulates the time you have to rectify the default.

 

They will stipulate if you default they can immediately apply for judgement in respect for the original value claimed.

 

You should consider the default term to read something like 'if the defendant defaults on the agreed payment value or time, the claimant shall send the defendant a default notice and the defendant will have 14 days to rectify the default'

 

A

[rita777]

Thanks So much Alloyz1 ! You are a Lifesaver !!! .. also I have just recently realized that Vanquis put a default on my previous address in 2012.. and this has pushed up the interest rate on my recent credit appication ... is it possible to ask that they remove this if we resolve to an agreement in the mediation ? if not how do i correct this ? i have an experian file which is not reflecting the default, but the lender said they could see it on another credit record file !!!

 

 

.... and "This will at least prime you for a WS if the matter proceeded past mediation." What is WS please ?

[Alloyz1]

Someone with more legal experience will be able to advise you on the default removal, however I understand it to be unlikely unless it can be proved to be an inaccurate marker.

 

WS is a Witness Statement, something you would be asked to submit by the courts should you not settle and the claim proceeds to trial. A WS is a more indepth and detailed account of your defence. If you use the mediation as above, you will obtain a lot of info for you to understand the claimants position and help you to put together a relevant WS.

 

A

[BRIGADIER2JCS]

Thanks ever so much everyone ! Please what does *a suitable payment default remedy period* as mentioned above mean ?

Allowing you 14 days to make payment should you miss any agreed payment on the due date.

[AndyOrch]

In any consumer agreement there a three main negotiation terms-

Value, repayment period and a default term.

 

The default term is a term you both refer to should you default on an agreed payment. It stipulates the time you have to rectify the default.

 

They will stipulate if you default they can immediately apply for judgement in respect for the original value claimed.

 

You should consider the default term to read something like 'if the defendant defaults on the agreed payment value or time, the claimant shall send the defendant a default notice and the defendant will have 14 days to rectify the default'

 

A

 

If settlement is by way of a Consent or Tomlin Order it is always better to stipulate as part of the schedule that should either party default on the terms of the schedule that both parties have recourse by way of the court to agree a suitable arrangement.

 

This stops the claimant proceeding straight to judgment....lets say for argument sake the consent state £100 per month to be reviewed every 12 months and they want to increase it to £200...you cant afford it and want the courts involvement to agree a fair affordable increase...you then have protection.

 

Its very important to seek advice on any consent schedule to check it has been drafted corrected to protect you as well as the claimant before accepting/agreeing a settlement.

 

Andy

[Alloyz1]

Good advice Andy and something I will bear in mind when discussing default terms

 

A

[Alloyz1]

Rita I am uncomfortable responding to PMs unless absolutely vital.

 

To be honest you could post it here because if the claimant is reading your thread, they already know all of your evidence, defence and position.

 

Please post here and everyone can continue to help.

 

If you want to discuss with a site team member first, please do.

 

A

[AndyOrch]

You can copy my response by PM to thread Rita...no problem if you wish.

 

Andy

[rita777]

Hi... I understand ... its just that I 'm not sure if the Claimant can read this and need to make a decision and so as not to shoot myself in the foot !! as you can also appreciate ... and i did mention in the PM that i would post here sensibly if neccessary .. I do appreciate everyone contributions and would definitely update as i have been doing..

[AndyOrch]

Thread tidied and irrelevant posts removed.

 

Regards

 

Andy

[rita777]

Thanks Everyone ! Mediation over !!! Not as bad ! lol ...

 

 

. While i was worrying with sleepless nights before the set hour .

.. According to the Mediator, The other side was NOT even ready for the mediation !!!

They weren't aware of the date nor time !! .

 

 

they started their offer from 20% off then eventually offered 45% off !!

I started from £600 for £20/month, then pushed it to £1600 .. (Don't know why ! Cold feet i guess ! ) ..

But they stopped at £2000 and refused to reduce this !! .. I blatantly said NO ..

 

Honestly I don't think i would be owing this much !!

ok The mediator said it would rise to around £4000 if it goes to court and it might NOT end up in my favour ..

which would be £4000 to pay and a CCJ !!!

 

 

I said to her that they ve refused to provide the agreement and the breakdown of the Alleged debt...

she said the mediation was just to settle out of court...

that they may or may NOT come up with all these eventually ..

. Because They PURCHASED the debt from Vanquis ..

. but have gone back to request for the CCA and CPR and awaiting now ...

 

£2000 is a lot to pay .

. they agreed to £300 upfront (My suggestion when i offered £1000 before they stopped at £2000) with £20 /month...

I am very very cross because of the uncertainty of this debt .

. but then worried of possible CCJ plus £4000 !!! ...

 

Lets say I develop cold feet and decide not to go to court ....

 

Is it still possible to accept this £2000 payment offer?

 

if so How ? ...

 

How do I get this on Tomlin Order pls ?

 

What is the procedure pls ?

[dx100uk]

they cant get a CCJ without the agreement signed by you

 

 

don't give up

 

 

dx

[BRIGADIER2JCS]

Thanks Everyone ! Mediation over !!! Not as bad ! lol ...

 

 

. While i was worrying with sleepless nights before the set hour .

.. According to the Mediator, The other side was NOT even ready for the mediation !!!

They weren't aware of the date nor time !! .

 

 

they started their offer from 20% off then eventually offered 45% off !!

I started from £600 for £20/month, then pushed it to £1600 .. (Don't know why ! Cold feet i guess ! ) ..

But they stopped at £2000 and refused to reduce this !! .. I blatantly said NO ..

 

Honestly I don't think i would be owing this much !!

ok The mediator said it would rise to around £4000 if it goes to court and it might NOT end up in my favour ..

which would be £4000 to pay and a CCJ !!!

 

 

I said to her that they ve refused to provide the agreement and the breakdown of the Alleged debt...

she said the mediation was just to settle out of court...

that they may or may NOT come up with all these eventually ..

. Because They PURCHASED the debt from Vanquis ..

. but have gone back to request for the CCA and CPR and awaiting now ...

 

£2000 is a lot to pay .

. they agreed to £300 upfront (My suggestion when i offered £1000 before they stopped at £2000) with £20 /month...

I am very very cross because of the uncertainty of this debt .

. but then worried of possible CCJ plus £4000 !!! ...

 

Lets say I develop cold feet and decide not to go to court ....

 

Is it still possible to accept this £2000 payment offer?

 

if so How ? ...

 

How do I get this on Tomlin Order pls ?

 

What is the procedure pls ?

 

 

 

 

 

Hi a Tomlin order (Consent Order) is achieved by arriving at a mutual agreement between the parties, which obviously has not happened.

Lowell cannot go " behind your back" for judgement, my concern is that once a TO in their favour is obtained they will admit there is no agreement.

 

 

The Mediation took place far too early I think.

[Alloyz1]

Hi Rita- In response to your PM and subsequent post.

 

I personally don't think the mediation took place too early, it sounds like you were not fully prepared for settlement.

 

It is always good practice to set yourself an acceptable offer/ settlement limit and whilst it may change as the mediation progresses, it provides some parameter to work to.

 

You went into the mediation and undertook some negotiation but did not set yourself an acceptable limit or even had the approach to get this settled. This appears to be why an offer made in the mediation was not acceptable then but now seems to be something you are considering.

 

Anyway that is history now. It will be up to the opposing party to decide if the offer is still available to you but I can not see a reason why it wouldn't be. A draft TO would be written, which you both agree with; and the court would seal it.

 

As far as I can see, you are back to deciding if you are happy to go to court to see if they have the agreement (with the associated risks/ reward) or trying to come to some sort of agreement outside of court. Nothing has really changed.

 

A

[rita777]

Thanks all .. @Alloyz .. I was actually prepared for the mediation but as mentioned above the Lowell were not .. £1,200 was the max I had in mind so started with £600 .. then pushed it to £1600 but they said 2800.. then 2500 and then said the minimum was £2000 .. This was the point I said No .. I actually would ve settled for the mediation but the amount is unrealistic ! The strong part of me just want them to provide the agreement, notice of assignment and breakdown of debt .. but the other part is worried of Ccj and a higher debt .. which is why I'm on the fence now ...

[Alloyz1]

As far as I can see, you are back to deciding if you are happy to go to court to see if they have the agreement (with the associated risks/ reward) or trying to come to some sort of agreement outside of court. Nothing has really changed.

 

A

 

If they eventually produce the agreement its £4000 and a CCJ

If they don't produce an agreement its £0 and no CCJ

If you settle, its £2000 easy payment terms no CCJ

 

You just need to make the decision now

 

A

[rita777]

Hello Again .... So sorry it's been from one thing to the other !! ...

 

I have just received a letter that the case has been allocated to my local court .

 

 

. At this stage after we didnt reach an agreement at the mediation..

 

 

and i am considering revisiting their offer for settlement ..

 

 

. How do i go about it pls ?

 

 

since we didnt reach an agreement at the mediation ..

 

1) is it still possible to settle after the unsuccessful mediation

 

2) How do I go back to Lowell to say i have a change of mind and wanting to settle out of court ..

 

3) What is the procedure please ?

 

i 've got a lot going on !!

 

 

I just can't wait for this to be over ...

[Alloyz1]

Personally, I would ask them to forward a draft Tomlin Order, based on their original proposal for settlement, for you to consider.

 

People on here can have a look and suggest adjustments and you can then send it back drafted as your proposal.

 

It is as simple as that.

 

A

[rita777]

Hello again everyone ..

 

 

I called them up and asked them to send a draft tomlin order for their offer of £2000 at the mediation .

 

 

. then they said that offer was without prejudice and pushed the amount to £2800 ..

 

 

they went ahead to say they now have all my CCA and CPR requests

i.e the agreement and the statements ..

 

 

the Lady said a letter was on its way to me with all agreement,

notice of assignment plus statements enclosed to be sent to me ..

 

 

. This was about 10 days ago !!

 

 

And i m yet to receive ANYTHING from them !! ..

 

2 days ago i received a letter from the court to confirm the case had been transferred to my local court

and a PAPER HEARING date has been set for February 2015 ..

 

 

*Highlighted that we are NOT required to be there ..

. also the Claimant would have to pay £335.00 to proceed and

 

 

they have also been ordered to forward the agreement, statements, notice of assignment from the original creditor to the Court

and myself by the 3rd week of this month November ..

 

I m more confused now ! ..

 

 

if they have all these why have nt they sent them to me as they have mentioned 10 days ago ?

 

 

Also why refuse the £2000 previously offered to me at the mediation ? ..

 

 

Do you think Vanquis could have sent all to them ?

 

 

The credit was in 2008 i think

 

 

.. there is another mediation contact in the letter. .

 

 

.. should i go through mediation again ..

 

 

or I shouldn't jump the gun ..

I really don't know what to do

 

 

.. pls help

[Alloyz1]

They have until the 3rd week in Nov to send you the information so they have a little time yet and it will be interesting to see if they pay the fee to proceed.

 

It may be worth waiting until the end of Nov and if you receive it you can ask for comments on here, and if you don't receive it maybe advise the court of their failure to provide said information, after all it is a 'court order' they have failed to comply with.

 

I think they are playing games with you re the mediation offer and unless the £2800 is acceptable, I would sit this out because you have the advantage of knowing they are prepared to settle at £2000. If they produce nothing more than previous you then have a choice, grind them back down to £2000 and get closure or let them advance to court with no proof.

 

A

[rita777]

HELLO ALL ... UPDATE ...

 

 

I have NOT received anything from LOWELL as at today the 01/12/14 ..

 

 

. please find below the COURT ORDER dated october ...

 

1) The Claim is allocated to the small claims track. the parties are referred to part 27 of the Civil Procedure Rules

and the practice direction of that part of guidance on how the hearing claim will be conducted ..

 

2) The Court proposes to deal with this matter by reading the papers, rather than having a hearing , so the parties attendance at court will NOT be required .....

 

3) The Claimant MUST by 4pm 28th November 2014 send to the Court and to the Defendant :

 

a) A copy of the agreement between the Defendant and the original creditor.

 

b) Evidence of service upon the Defendant of Notice of Assignment .

 

c) A copy of default notice.

 

d ) Evidence of service of the default notice

 

e) A statement of the Defendant's account from the date of its inception to the date of this order.

 

4) By 4pm on 12th December 2014, the defendant may if so advised, file at court and serve on the claimant an amended defence.

 

As stated above

they have failed to comply to this Order by the date given by the court ..

 

 

.. Please what do I need to do now ????

bearing in mind that they rejected my offer of £2000.00 installmental payment earlier ..

asking for £2800.00 and telling me that they would send me the agreement,

and this was even way before the court ORDER ...

 

So what should be my next step please ???

[SADIE DE RUE]

The Court of Appeal Handed Down Judgment in Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 (27 November 2013) has affirmed that a party’s failure to comply with a rule, practice direction or order will no longer be tolerated, therefore, you should request strike out of claim for non-compliance with court order and refer the lower court judge to this authority which all lower courts are bound by.

 

In the Mitchell MP case, Mitchell’s representatives failed to comply with a CPR rule on the filing of costs budgets, the Appeal court said this failure meant Mitchell was not entitled to any of his £500k incurred in legal costs.

 

The case sends out a clear message to all litigants, represented or not, in the light of Lord Jackson’s reforms of civil justice, parties who fail to comply with a rule, practice direction or order will face severe sanctions.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html

 

Click on link and print off copy for the court.

 

Send the court a letter stating the Claimant’s failure to comply with the order, refer to the Mitchell MP case (include a transcript of the judgement) and ask the court to strike out the claim on that authority under CPR r.3.4(2)© (below) and CPR r.1.1(2)(f) (below)

 

Rule 3.4 Power to strike out a statement of case

3.4

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out a statement of case if it appears to the court—

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© that there has been a failure to comply with a rule, practice direction or court order.

 

 

Rule 1.1 The overriding objective

1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable—

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

© dealing with the case in ways which are proportionate—

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

(f) enforcing compliance with rules, practice directions and orders.

 

Sadie

[AndyOrch]

Have you completed and served yours Rita...witness statement and disclosure?

 

Andy

[rita777]

Have you completed and served yours Rita...witness statement and disclosure?

 

Andy

 

Thanks Sadie ... very helpful !!

 

Thanks Andy ... do you mean the defence? The order says I have up till the 2nd week in December to amend my defence 'if so advised' it says .. but if Lowell is not providing all documents asuch ordered by the court which are what I also requested in my submitted defence .. then there isn't much to amend is there? Because I did indicate in the defence that if they don't provide all then their claim is vague and generic in nature as advised here ...

[AndyOrch]

No I was referring to general directions Rita...have you not been directed to submit a WS or disclose?

 

Check your Notice of Allocation.