Carter/lowells - Claimform Very old Cat 'debt'

[rustyrussell82]

It's now time for me to file a defence and

 

 

I've browsed the site for templates etc but

I still have no clue as what to put down

 

 

it's too much to take in at the moment as my father has passed away suddenly within the last week,

 

 

could someone please direct me to what I need to put down please?

 

 

I sent a CCA request and still haven't heard from Lowell but

 

 

I definitely know that they received it.

 

 

I know 100% that they haven't got a true signed credit agreement

 

 

and that's what I need to base defence on I think

[rustyrussell82]

Is this any good or do I need to remove anything?

 

Particulars of Claim

 

1.The claimant claims 1,210.00 the amount due under an agreement between the original creditor and the defendant to provide finance and/or services and/or goods

 

2.The debt was assigned to/purchased by Lowell portfolio Ltd on 05/04/2010 and noticed served pursuant to the law of property act 1925

 

Particulars RE Shop direct

 

The claim includes statutory interest pursuant to s.69 of the county act 1984 at a rate of 8% per annum

from the date of assignment of the agreement to date but limited to a maximum of one year amounting to 96.80

 

Defence

 

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.

 

1.The defendant denies entering into an agreement with the original creditor and owing them £1,210.00 for finance and/or services and/or goods

 

2.The defendant denies that a noticed was served pursuant to the law of property act 1925 or any other legal assignment that was allegedly served to the defendant over 4 years ago from either the claimant or original creditor

 

3.On the 02/09/2014 the defendant made a request to Lowell Portfolio under the consumer credit Act 1974, sections 78, to see a copy of any credit agreement and a statement of account. To date they have not supplied me a copy of the agreement or a statement of account as required by law .

 

4. On the 02//09/2014 I requested information pertaining to this claim by way of a CPR 31.14 request to Bryan Carter Solicitors LLP. The claimant has declined to supply me with this information and also declined an extension for me to file my defence.

 

5. The particulars of claim are vague and unsubstantiated with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to :-

 

a. show how the Defendant has entered into an agreement or contract with the Claimant; and

b. show how the Defendant has reached the amount claimed for and

c. show how the Claimant has the legal right, either under statute or equity to issue a claim

 

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

 

7. Furthermore, 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 and 196 of the Law of Property Act 1925 and Section 82 (a) of the Consumer Credit Act 1974.

 

8. The claimant has failed to comply with sections 111 AND 1V of the pre action conduct practice directions. The Claimant has

failed to even acknowledge any request made by myself, via recorded delivery, regarding disclosure of documents in order that I may plead effectively.

 

9. 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.

Edited September 26, 2014 by rustyrussell82
Particulars added for checking

[AndyOrch]

Responding to your PM rusty.

 

You will see above that I have added their particulars of claim...a defence can not be checked without knowing what you are responding to.

 

I have numbered their points of claim and also yours...look at their points 1 & 2 and then your proposed 1 & 2...do you think your response is sufficient ?

 

Regards

 

Andy

[rustyrussell82]

Thanks for taking a look for me and I don't know what else I can add to points 1 and 2 except that my wife never physically signed anything entering into an agreement.

I'm sorry if i'm being dumb here but I really don't understand what i'm meant to put

 

 

regards

rusty

[AndyOrch]

Responding to a defence you either accept agree or deny or refute...anything you do not answer to will be accepted as an admitance.

 

Its a bit like a Q&As

 

Claimant...1. We sold the car to the defendant in good faith at the screen price.

 

Defendant 1. Yes it is admitted I bought the car at the screen price but after 1 week the wheels fell off.

 

So in your proposed defence above.....

 

Claimant 1.The claimant claims 1,210.00 the amount due under an agreement between the original creditor and the defendant to provide finance and/or services and/or goods

 

Defendant 1. 1.On the 02/09/2014 the defendant made a request to Lowell Portfolio under the consumer credit Act 1974, sections 77−79, to see a copy of any credit agreement and a statement of account. To date they have not supplied me a copy of the agreement or a statement of account as required by law .

 

They are not stating if you did or didn't send a section 77-79 request but that they are claiming monies due from you by way of an agreement between you and shop direct.

 

So you have to respond directly to that point and point 2 ...point 3 onwards is fine its the standard put them to proof defence that I drafted many moons ago and has had great success in staying claims.

 

You just need to personalise your 1 & 2.

 

Regards

 

Andy

[rustyrussell82]

ah right thanks very much I will have a go at it now and let you know when it's done to see if it's any good if you don't mind

[rustyrussell82]

just another question before I try and change it, I have no idea how to answer point 2! I have no idea if they did or didn't serve a notice tbh and do I then also make my points 1&2 as they are now 3&4.

 

 

Do I admit entering into agreement with them even if nothing was ever signed or simply deny I ever did?

[AndyOrch]

2.The debt was assigned to/purchased by Lowell portfolio Ltd on 05/04/2010 and noticed served pursuant to the law of property act 1925

 

2.Paragraph 2 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served over 4 years ago from either the Claimant or ShopDirect.

 

Have a go.....

[rustyrussell82]

Thanks I did put can't admit or deny but have no changed it to deny! I have altered points 1 & 2 now

[AndyOrch]

 

You dont submit the particulars....only the defence.

 

Andy

[rustyrussell82]

yeah thanks i'm so grateful for your time and advice and I just hope it goes our way but whatever happens I will definitely be making a donation to help keep this fantastic site going

[AndyOrch]

I have also added a little extra at the intro of your defence rusty just for good measure.

[rustyrussell82]

I will update you as to what happens next when I hear something! Hopefully its good news

[rustyrussell82]

Thanks but I just submitted it before I saw your post and have no way of altering it now do I?

[AndyOrch]

See if it will let you amend.... if not no worries.

[rustyrussell82]

yeah I did straight away and I can't I just can see the summary of it. Thanks again though you are one brilliant guy!!

[AndyOrch]

[rustyrussell82]

I've had a reply from the courts and now I have had a reply from BC

 

 

Dear Miss Pugh

 

 

please see attached copy of letter sent to the court confirming that the claimant wishes to proceed with the claim at this time.

 

 

The claimant agrees in principle to mediation.

 

 

We should also be grateful to hear from you in relation to

without prejudice negotiations and you may contact us on 0845 *******

 

 

Do I contact them because as far as we are concerned there is no agreement and Lowell have still failed to provide us with one as our CCA request on 2/9/14

[AndyOrch]

You dont do anything until your receive a Directions Questionnaire from the court to complete and resubmit...this then allocates the claim and transfers your claim to your local county court.

 

Andy

 

PS Russell you dont need to pm every time you post I get a copy of your post on thread.

[rustyrussell82]

ok wasn't sure if you get notifications for my thread. Thanks for letting me know what to do next

 

 

Russell

[rustyrussell82]

WITHOUT PREJUDICE

 

Dear Miss Pugh

 

 

We have been notified by the court that you have filed a Defence to this claim. In an attempt to settle this matter before hearing and in order to avoid either party incurring further costs, we confirm that our client is prepared to accept payment of the full balance by monthly instalments. Please insert an affordable sum in relation to your financial circumstances in the blank space in the proposed Order and sign and return it to us within 7 days. Provided the amount is reasonable we will sign the Order and send it to the court to be sealed.

 

 

Alternatively, if you would prefer to settle this debt now then please contact us on 0845 for a settlement figure.

 

 

Please note that if you default payment then Judgement may be entered against you and if you are in any doubt as to the consequences of signing the consent order you should seek independent legal advice.

 

 

We look forward to hearing from you and hope we can agree to settle this matter without the need for a Court hearing but if we do not hear from you we will apply to Court to strike out your Defence at hearing which, if successful, may result in further costs being payable by you.

 

 

yours sincerely

 

 

BC

[AndyOrch]

Its up to you...ignore and proceed or make an offer...but not the full balance.

 

Andy

[rustyrussell82]

Can they strike it out though? They still haven't produced the Credit agreement and I very much doubt they would accept anything under the full amount and then they would use it as admission wouldn't they?

[AndyOrch]

They cant do anything until the claim proceeds (DQ)...which is the next step they rather not take...hence their last ditch attempt letter.

 

Any offer you did make would be WP also...so no its not an admittance.

[rustyrussell82]

Right then I have today received their evidence for court and it shows an agreement between my wife and shopdirect even though it's not for when she opened the catalogue its date 3/12/06 and we aren't sure what it's for as the catalogue was opened pre 2004 but guess that doesn't matter really. There is nothing I can do now is there? I sent a CCA request and didn't ever get anything back and now they are using it as evidence even though they ignored my request and if they had sent it to me then I could have sorted this and now they are asking for my defence to be thrown out as I have no leg to stand on.

Do I now contact BC and try sort out payment plan or just let the courts decide how much I pay?