Carter/Lowell - Claimform Nationwide Joint Bank Account ***Claim Discontinued***

[TimeToStandUp]

I just received court papers from these guys, but the debt is over 8 years old, how do I put in the defence that it is Statute Barred, and can I ask them to provide evidence..

 

Its from an old joint bank account with Nationwide, my wife passed away just 2 months ago and I receive court papers in just my name.

 

We also had single accounts with Nationwide, and I suspect it was me closing my wifes one which sparked this action.

 

For the record the debt on the joint account is 100% bank charges, which we refused to pay the first one, so each month they hit us with another one and so on...

[dx100uk]

please fill this out and reply here

 

 

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

[AndyOrch]

Statute Barred defence contained in the following thread:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?433311-Cabot-Mortimer-Claim-Form-Help-Needed(1-Viewing)-nbsp

 

Regards

 

Andy

[TimeToStandUp]

Thankyou,

 

So this bit :-

 

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 acticon 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant

 

Basically tells the court that its down to the Claimant to prove it, personally would love for them to have to produce the last statement which is just full of there bank charges...

[AndyOrch]

No all of it....

 

The Claimant's claim was issued on (insert your claim date).

 

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. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

3 The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied.

[TimeToStandUp]

Cool thank you for your help

[AndyOrch]

"Basically tells the court that its down to the Claimant to prove it, personally would love for them to have to produce the last statement which is just full of there bank charges..."

 

 

Its not really about the charges it is stating that you have not acknowledged or made deposits for a period of 6 years...your defence is based on the statute of limitations not penalty fees.

 

Andy

[TimeToStandUp]

I sent them a Stat Barred letter and they quickly returned saying a default was issued in July 2009 therefore under BMW Financial Services v Hart CIV 1959 its not Stat Barred...

 

 

I defo don't recall receiving a default notice from Nationwide, surely if that's the case then mine and my wifes single accounts would of been closed !!

 

 

If I send the response to the court is it down to them to produce evidence it was sent to me and also the bank statements which would show all the debt is bank charges ?

[AndyOrch]

It defaulted in July 2009....now if you had completed the link in post#2 and told us a bit of history we would of advise not submitting the SB defence...as it isn't statute barred until next July......or is it? we dont know anything about the debt.

 

Andy

[TimeToStandUp]

I not issued my defence, I just sent Lowells / Bryan Carter a Stat Barred letter....

 

Apologies, as my head is still over the place as this is a joint account and my wife tragically passed away just over 2 months ago, at the age of just 37 !!!

 

 

Name of the Claimant ? Bryan Carter / Lowells

 

Date of issue

 

12 Sept

 

What is the claim for – the reason they have issued the claim? Please type out their particulars of claim (verbatim) less any identifiable data and round the amounts up/down.

 

The claiments claim is for the sum of 303.48 being monies due from the defendant to the claimant under an agreement regulated by the consumer credit act 1974, between the defendant and the claimant, and assigned to the claimant on 21/10/2011 Notice of which has been given to the defendant

 

The defendant failed to maintain contractual repayment under the terms of the agreement and a default notice has been served which has not ben compled with.

 

What is the value of the claim?

 

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

 

Current Accout

 

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

 

Before 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

 

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

 

Did you receive a Default Notice from the original creditor?

 

Not that I recall

 

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

 

Definatly not

 

Why did you cease payments:-

 

All the debt is simply bank charges

 

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

 

Yes we refused to pay the first bank charge, so each month they put an additional bank charge on to it.

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt managementicon plan?

 

Nationwide wasnt interested in helping, but we both still had our own single accouts

[AndyOrch]

I not issued my defence, I just sent Lowells / Bryan Carter a Stat Barred letter....

 

Why...? What did you think it would achieve ?

 

What date did you last service the account....IE deposited funds?

 

Have you acknowledged service yet?

 

Andy

[TimeToStandUp]

I got no details of the account, but know we stopped using it after they put the first charge on which was around 8 years ago, we only set up the joint account to literally pay our mortgage..

 

Sadly my wife was the one that knew all the details.

 

I not acknowledged service yet, but will do today..

[AndyOrch]

And then send the following to Sols...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?387483-LEGAL-CPR-31.14-Request-when-Claim-is-being-made-for-a-Current-Account

 

Regards

 

Andy

[TimeToStandUp]

Thankyou very much for your help, will send to them right now whilst I got my correct mind on at the moment...

 

I just done my awknowlegment of service on line..

 

Once again thank you

[TimeToStandUp]

I had a reply which seems a bit confusing, as it basically to me suggests they dont need to produce any documentation...

 

We write further to your letter requesting disclosure under part 31 of the civil procedure rules.

 

We confirm the claim form was issued by the county court bisness centre and the courts protocol was followed when issuing the claimants 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 to court.

 

The policy of the original creditor was to provide an agreement at the point of contract and statements throughout the duration of the account. Evidence will be provided in accordance with the courts discretion.

[AndyOrch]

Standard template response from this crew Im afraid.....of course they dont have to respond to a CPR 31.14 request after all its a civil request...but the courts expect both parties to to narrow any differences pre trial...they will have to disclose further into the process though for sure ...not at the courts discretion.

 

The point is you have requested it they have refused it and now you can use that to your advantage:wink:

[TimeToStandUp]

Dont suppose anyone can point me in any direction to do my defense,,

 

Many thanks in advance,,,

[AndyOrch]

Most of the threads surrounding your thread contain defences used as preliminary holding holding defences...find a thread/claimant /particulars of claim similar to yours and have a go at drafting a response.

 

Andy

[TimeToStandUp]

How is this for a defence ??

 

Particulars of Claim

 

1.The claimants claim is for the sum of 303.48 being monies due from the defendant to the claimant under an agreement regulated by the consumer credit act 1974, between the defendant and the claimant

 

2.And assigned to the claimant on 21/10/2011 Notice of which has been given to the defendant

 

3.The defendant failed to maintain contractual repayment under the terms of the agreement and a default notice has been served which has not been complied with.

 

Proposed 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.. Paragraph 1 is not admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with the Claimant as the Defendant did not enter into any Agreement with the Claimant.

 

3.Paragraph 2 is denied I have never been served with a Notice of Assignment pursuant to the law of Property Act 1925 Section 136 (1a) allegedly served over 3 years ago.

 

4. Paragraph 2 is not admitted with regards to the Claimant terminating the alleged contractual Agreement as the Defendant did not enter into any Agreement with the Claimant.

 

5. It is therefore denied with regards to the amount the Defendant owing monies to the Claimant and the Claimant is put to strict proof to:

 

(i) Show and evidence how the Defendant has entered into an agreement with the claimant;and

(ii) Show and evidence how the Defendant has reached the amount claimed for;and

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

 

6. On receipt of the claim form I contacted the Claimant and Solicitors Bryan Carter LLP and sent a CPR 31.14 request dated 12/02/2014 for a copy of:

 

(i) The Overdraft facility agreement and Terms and Conditions from that date

(ii) Notice served under Sections 76(1) and 98(1) of the CCA1974

(iii) Notice of assignment

(iv) Statement of account showing how the amount claimed has been reached, which forms the basis of this claim.

 

7.The Claimant Solicitors replied on the 7th October 2014 declining to send the requested information, and stated evidence will be provided in accordance with the courts discretion.

 

Therefore the claimant in their non compliance to my requests has frustrated my attempts to clarify their claim and against pre action protocol and CPR should be considered when the question of costs arises.

 

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

 

9.On the alternative, as the Claimant is allegedly 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.

 

10.Until such time the Claimant can comply with my request for a copy of the Overdraft facility agreement and Notice served under Sections 76(1) and 98(1) of the CCA1974 it relies upon they are prevented from enforcing or requesting any relief pursuant to the CCA 1974

 

11. 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 October 14, 2014 by Andyorch
Particulars added/defence re drafted.

[AndyOrch]

I think it needs to be personalised a little more Timeto considering the circumstances and your recent loss......If you let me have a look at tomorrow and I will redraft it for you...you have the correct elements...we just need to show how the OC has responded to your personal situation.

 

Regards

 

Andy

[TimeToStandUp]

Ok thank you !!! Much appreciated..

[AndyOrch]

Defence re drafted in your post #19

 

Regards

 

Andy

[TimeToStandUp]

Ok thank you Andy, just as a side issue I obviously sent the CPR letter to all 3 of the companies, and its interesting the Lowells said there not dealing with it, Fredrickson's didnt even reply.

 

So it does make you wonder how companies like Bryan Carter are allowed to (what appears to me) just take a lot of people to court, knowing that they will get a default judgement for probably a high percentage of the cases.

[AndyOrch]

Precisely but there is no requirement to have the documents at the stage of issue..

 

 

.a claim is not based on whether they have documents or not but on the debt they refer to..

 

 

.likewise a defence is not based on what you have asked for and what they have not disclosed.

 

 

..its either your debt or its not or its disputed.

 

That's why all my defences state " As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed."

 

If MCOL changed it procedures and stated that all documents relied upon within any claim must be served separately after the issue of a claim..

the courts would be empty...but the DCAs have friends in high places so that is never likely to occur.

[TimeToStandUp]

Update...

 

Defence was filed and forwarded to Bryan Carter,

 

 

they now replied, offering me £100 off, to save them costs as they feel they have a good chance of winning anyway ,

 

 

only if I pay all in full, or I can pay the full lot monthly

 

 

I got till end of Nov to send them the "Tomlin" form back...

. But there missing the point, I still want the evidence to show I owe the money..

 

 

. I want them to produce the statement and justify that all the cost is bank charges..

 

So do

 

a) I write back to them declining the offer unless

 

b) ask again for them to submit there evidence to me which they are not currently willing to do

 

c) ignore it and wait for them to advise the court they wish to proceed,