Carter/lowell claimform - old HFC 'debt'

[beard1]

Received a claim? Yes

Issue Date: 17-9-2014

Amount approx: 900

Claimant: Lowell

Solicitor: Bryan Carter

Original Credit: HFC Bank

 

Particulars of Claim:

The claimants claim is for the sum of £750 being monies due from the defendant to the claimant under an agreement regulated by the consumer credit act 1974 between the defendant HFC Bank Ltd under account ref xxxxx and assigned to the claimant on 01/09/2006 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 been complied with.

 

Stat Barred? Yes

 

Have sent: Acknowledged the Claim, Sent a CPR 31.14 request

 

Other Info:

Hi,

 

I've received a claim form on the 19th from the court and wondered if anyone could clear up a few details if possible.

 

Bryan Carter solicitors are acting on behalf of Lowell Portfolio Ltd and they chasing an old debt I had with HFC bank which was assigned to Lowell in 2006 (according to the court claim form).

 

I'm 99% sure this debt is Statute barred and these "people" are chancing it.

 

I've been reading around for a few hours and so far I've logged into moneyclaim.gov.uk and I confirmed "intention to defend all of this claim".

 

I've also borrowed and sent a couple of letters (thanks to the people who put their time and effort into it ).

 

My questions are:

 

1. Will I receive confirmation from the court that I have 30 days from the issue date (17th sept) to enter a defence online.

 

2. Is it worth submitting a SAR request to HFC Bank along with the 2 letters below just to remove the 1% doubt about it being statute barred?

 

3. Am I doing it right?

 

4. What should I expect next?

 

Thanks.

 

The first is this letter which I sent recorded delivery on the 22nd sept to both Lowell and Bryan Carter.

 

MY ADDRESS

 

 

Bryan Carter Solicitors

11 De Havilland Drive

Weybridge Surrey

KT13 0YP

 

By Recorded Delivery

 

Date ??/09/2014

 

I do not acknowledge any debt to you or any other company or organisation that you claim to be representing

 

Dear Sir/Madam

 

Acc No 0000000 Ref:000000

 

You have contacted me regarding the account with the above reference number, which you claim is owed by me. I do not acknowledge any debt to you or any other company or organisation that you claim to be representing

 

I would point out that under the Limitation Act 1980 Section 5

 

“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 last payment of this debt was made over six years ago and no further written acknowledgement or payment has been made since that time.

 

Unless you can provide evidence of payment by myself or written acknowledgement of the debt from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed, and should you try to proceed with court action I must inform you that I shall defend this action in court citing Section 5 as part of my defence.

 

The Regulatory Debt Collection Guidance states that “continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statue barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970”, which again should you try and proceed to court I will also use this as a defence.

 

I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.

 

Yours sincerely,

 

MY NAME TYPED

 

The second letter is this one which is a bit longer (sorry!)

 

MY ADDRESS

 

Bryan Carter Solicitors

11 De Havilland Drive

Weybridge Surrey

KT13 0YP

 

By Recorded Delivery

 

Date ??/09/2014

 

REQUEST FOR INFORMATION IN RESPECT OF YOUR COUNTY COURT CLAIM NUMBER XXXXXXXXX

 

In respect of your account number XXXXXXX and ref: XXXXXX

 

]I have received a recent court claim from your organisation. In order to file a defence I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules 31.14, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with HFC Bank Ltd.

 

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

 

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

i. Copies of statements for the entire duration of the credit agreement.

 

3. I require your organisation to provide written confirmation that states clearly whether you currently hold an original signed Consumer Credit Agreement, or whether you do not hold an original signed Consumer Credit Agreement pertaining to myself.

 

For the avoidance of doubt, an original signed Consumer Credit Agreement is just that; not an application for credit and not a reconstructed or microfiched document from other sources but indeed the original signed document purporting to be signed by myself.

 

Please note that until such times as a legally enforceable, original Consumer Credit Agreement can be produced and a copy sent to me by return, then this letter is not an acknowledgement of debt and this account will remain in an unenforceable state protected in line with s.127 (CCA1974).

 

4. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence.

 

Yours sincerely,

 

MY NAME TYPED

 

I received the following reply for Carters yesterday.

 

I cant post URLS but it was along these lines.

 

We write further to your request for disclosure under Part 31 of the civil procedure rules.

 

We confirm the claim was issued by the Northampton County Court Bulk Centre and the court's protocol was followed when issuing the Claiments 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 that we have requested documentation from our client and hope to revert to you shortly, although this will not be within seven days. We do not accept your comments in relation to Civil Procedure Rules 27(2).

It was the original creditors policy, halifaxicon, to issue agreements on or around the date of contract and statements throughout the duration of the agreement, in this regard we ask you to refer to your own records. For the avoidance of doubt the Claiment does not consent to an extension to the deadline for filing the defence.

 

Someone has suggested going down the embarrased defence route and sending the following letter next along with another request for info to lowells which is also shown below.

 

Dear Sirs,

 

Claim No: xxxxxxxx

Lowell Portfolio I v Your name as it appear on the claim form

 

Request for documents mentioned in a statement of case under CPR 31.14

 

Thank you for your response to my request for disclosure of documents mentioned in your statement of case under CPR 31.14.

 

With regards to your assertion that ''we confirm this matter will most properly be allocated to the small claim track as this is a simple contractual matter and part 31 of the civil procedure rules will therefore not apply.''

 

Following appropriate advice I am afraid I must disagree, the case has not been allocated to a track for determination and as a consequence the provisions of CPR 27(2) have no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise. If you continue to do so, this matter WILL be drawn to the courts attention for appropriate consideration.

 

Due to your refusal to comply with the civil procedure rules, I am unable to lodge my defence and/or counterclaim at this moment as I have no information regarding the alleged debt. However, if you continue to refuse to comply I SHALL lodge an 'embarrassed' defence with the courts, and seek a court direct to instruct you to comply with the civil procedure rules.

 

If you require more time in which to comply with this request you must tell me in writing and state a date by when you will comply with this request.

 

In addition I require a written statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unwilling to comply with my request for specific disclosure please inform me and I will be entering an application to the court to obtain such.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

I look forward to hearing from you within the next 7 days.

 

Yours faithfully

 

Same signature as last time

 

 

Dear Sir/Madam

 

Re:− Account Number xxxxxxxxxxxxxxxxxx and County Court Claim Lowell Portfolio I v Your name as it appear on the claim form

 

Firstly please be aware that as this matter has been moved to a formal legal footing by yourselves, I will ONLY accept correspondence and communications in writing from you or your representatives.

 

Please treat this letter as a formal request for you to supply a copy of my Consumer Credit Agreement as is my entitlement under sections 77-79 of the Consumer Credit Act 1974.

 

I am being forced to deal with this matter directly and thus bypassing your appointed legal representation, because to date your legal representation has refused to comply with a legal CPR request, a fact I will be pointing out to the courts as part of my defence.

 

I require you to provide me with a true copy, or reconstituted copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit.

 

Further I am making a legal and formal request under the Consumer Protection From Unfair Trading Regulations (CPUTR) 2008.

 

I require your organisation to provide written confirmation that states clearly whether you currently hold an original signed Consumer Credit Agreement, or whether you do not hold an original signed Consumer Credit Agreement pertaining to myself.

 

For the avoidance of doubt, an original signed Consumer Credit Agreement is just that; not an application for credit and not a reconstructed or microfiched document from other sources but indeed the original signed document purporting to be signed by myself.

 

Please note that until such times as a legally enforceable, original Consumer Credit Agreement can be produced and a copy sent to me by return, then this letter is not an acknowledgement of debt and this account will remain in an unenforceable state protected in line with s.127 (CCA1974).

 

Please also note that failure to provide a direct answer to this request will be brought before the court, should you decide to defy the content of this letter and instruct solicitors to pursue enforcement action regardless.

 

I understand that a copy of my credit agreement should be supplied within 12 working days from the date of this letter, failure to provide this will again be proved as non compliance with civil procedure rules to the court.

 

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189.

 

If you are now stating that you are not the creditor, then I will require written confirmation at to who the creditor is, and why you have implied in all recent correspondence that you were

 

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

 

Yours faithfully,

 

 

Again use the same signature as before, i.e. NOT your usual one

[citizenB]

If you are convinced the debt is statute barred, then you can use the stat barred defence.

 

If you are not sure, then an embarrassed defence is not the way to go.. you would respond to the claim as best you can based on the information they have provided and put them to proof where they haven't.

 

Stat barred defence is.. exactly as written, nothing more, nothing less.

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

 

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. 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.

 

 

Are the letters you have posted above, from the CAG library ? If so, I am going to have to edit them out..

 

Your timeline based on the claim issue date of 17.09.2014 is..

 

Issue date 17.09.2014 + 5 days for service = 21.09.2014 + 14 days to acknowledge claim = 05.10.2014 + 14 days to submit defence = 19.10.2014.

[beard1]

Hi, thanks for your time. Don't worry, these are from another forum

 

I have had an update as I was typing this out.

 

Had a letter from Carters claiming I made a payment of £50.00 on the 2nd August 2011. (providing no proof).

 

However I've just checked my account and I think I'm stuffed.

 

02 Aug 11 £50 J B DEBT RECOVERY CD 5435

 

Is it over? How would I avoid the CCJ (which would be my main objective now).

[Old Cogger]

already stated Tomlin order may be the way out sure others will advise?

[AndyOrch]

Thread moved to Financial Legal Issues

[beard1]

I cant seem to change my plea on the MCOL site to full admission. Am I stuck defending?

 

I really want to avoid a CCJ.

[citizenB]

You wont be able to amend your defence online - I think you would need permission to amend.

 

So you DID actually make that payment of £50.00 ! Was it made under duress ?

[beard1]

I've checked the dates in the letter with my bank account

and there was a payment of £50 to JB Debt Recovery.

 

 

It was at a time where i was clearing up a few other debts,

 

 

I cant really say if it was under duress,

 

 

there were a lot of letters and calls.

[beard1]

Should I phone Carters and ask them to set up a Tomlin Order?

[Old Cogger]

PRACTICE DIRECTION 14 – ADMISSIONS

This Practice Direction supplements CPR Part 14

Contents of this Practice Direction

Title

Admissions generally

Forms

Returning or filing the admission

Request for time to pay

Determining the rate of payment

Varying the rate of payment

Withdrawing an admission

Admissions generally

1.1

(1) Rules 14.1, 14.1A and 14.2 deal with the manner in which a defendant may make an admission of a claim or part of a claim.

(2) Rule 14.1A makes provision about admissions made before commencement of a claim. It applies only to admissions made after 6th April 2007, and only in proceedings to which one of the following pre-action protocols apply –

(a) the pre-action protocol for personal injury claims;

(b) the pre-action protocol for the resolution of clinical disputes; or

© the pre-action protocol for disease and illness claims.

(The pre-action protocol for personal injury claims states that it is primarily designed for certain types of personal injury claim with a value of less than the fast track limit. But, paragraph 2.2 of the protocol indicates that it generally applies to all claims which include a claim for personal injury.)

1.2 Rules 14.3, 14.4, 14.5, 14.6 and 14.7 set out how judgment may be obtained on a written admission.

Back to top

Forms

2.1 When particulars of claim are served on a defendant the forms for responding to the claim that will accompany them will include a form1 for making an admission.

2.2 If the defendant is requesting time to pay he should complete as fully as possible the statement of means contained in the admission form, or otherwise give in writing the same details of his means as could have been given in the admission form.

Back to top

Returning or filing the admission

3.1 If the defendant wishes to make an admission in respect of the whole of a claim for a specified amount of money, the admission form or other written notice of the admission should be completed and returned to the claimant within 14 days of service of the particulars of claim2.

3.2 If the defendant wishes to make an admission in respect of a part of a claim for a specified amount of money, or in respect of a claim for an unspecified amount of money, the admission form or other written notice of admission should be completed and filed with the court within 14 days of service of the particulars of claim3.

3.3 The defendant may also file a defence under rule 15.2.

Back to top

Request for time to pay

4.1 A defendant who makes an admission in respect of a claim for a specified sum of money or offers to pay a sum of money in respect of a claim for an unspecified sum may, in the admission form, make a request for time to pay4.

4.2 If the claimant accepts the defendant’s request, he may obtain judgment by filing a request for judgment contained in Form N225A5; the court will then enter judgment for payment at the time and rate specified in the defendant’s request6.

4.3 If the claimant does not accept the request for time to pay, he should file notice to that effect by completing Form N225A; the court will then enter judgment for the amount of the admission (less any payments made) at a time and rate of payment decided by the court (see rule 14.10).

Back to top

Determining the rate of payment

5.1 In deciding the time and rate of payment the court will take into account:

(1) the defendant’s statement of means set out in the admission form or in any other written notice of the admission filed,

(2) the claimant’s objections to the defendant’s request set out in the claimant’s notice7, and

(3) any other relevant factors.

5.2 The time and rate of payment may be decided:

(1) by a judge with or without a hearing, or

(2) by a court officer without a hearing provided that –

(a) the only claim is for a specified sum of money, and

(b) the amount outstanding is not more than £50,000 (including costs).

5.3 Where a decision has been made without a hearing whether by a court officer or by a judge, either party may apply for the decision to be re-determined by a judge8.

5.4 If the decision was made by a court officer the re-determination may take place without a hearing, unless a hearing is requested in the application notice.

5.5 If the decision was made by a judge the re-determination must be made at a hearing unless the parties otherwise agree.

5.6 Rule 14.13(2) describes how to apply for a re-determination.

Back to top

Varying the rate of payment

6.1 Either party may, on account of a change in circumstances since the date of the decision (or re-determination as the case may be) apply to vary the time and rate of payment of instalments still remaining unpaid.

6.2 An application to vary under paragraph 6.1 above should be made in accordance with Part 23.

Back to top

Withdrawing an admission

7.1 An admission made under Part 14 may be withdrawn with the court’s permission.

7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –

(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;

(b) the conduct of the parties, including any conduct which led the party making the admission to do so;

© the prejudice that may be caused to any person if the admission is withdrawn;

(d) the prejudice that may be caused to any person if the application is refused;

(e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;

(f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and

(g) the interests of the administration of justice

 

 

For Information -

[Old Cogger]

if you feel that the payment was made then contact and ask for a Tomlin Order (which they should agree)

ask andyorch to look in?

[beard1]

Thanks, a bit overwhelming for the beginner I must admit.

 

Probably not the answer you guys want to hear but I've weighed up the pros and cons and for the sake of my sanity I just want to pay it, avoid the CCJ and be done with it if possible.

 

My prblem is that I've answered the claim saying I want to defend and can't seem to change it.

[AndyOrch]

So just defend it...you can still just pay it if you lose and still avoid the CCJ.....losing though? its a BC claim:madgrin:

[beard1]

I know it pains me and I'm stil torn. BC make me sick.

 

Is that correct? Losing and paying in full means no CCJ on my record?

[Old Cogger]

if paid within 28 days it seems/.

[AndyOrch]

I know it pains me and I'm stil torn. BC make me sick.

 

Is that correct? Losing and paying in full means no CCJ on my record?

 

Yes as above and there is no trace of the claim.

 

 

Please dont become part of the BC success club

 

 

we haven't got many in it and you may be somewhat lonely in there:lol:

[dx100uk]

god never give in to carter!!

 

 

have you sent him a CCA request

 

 

and you've got one back?

 

 

when did you take this agreement out?

 

 

certainly seems like well before 2006

 

 

hens teeth those old agreements

as HFC shredded everything.

 

 

dx

[beard1]

Ok new fight in me. This is a pre 2007 cca so I believe unenforceable unless they can pull a signed CCA out of their bumholes.

 

I'm sending the £1 request in the morning to Lowells, do I need to send a copy to Carter as well?

 

Is it still unenforceable even though I paid towards it in 2010/2011?

[beard1]

How does this read?

 

REMOVED please do not reproduce templates in the open forum - DX

[beard1]

Or this one?

 

REMOVED please do not reproduce templates in the open forum - DX

[dx100uk]

click me >> CCA request

 

 

you don't need to adapt it

 

 

dx

[beard1]

Apologies for posting templates!

 

I've just had a response from today Lowells dated 25th sept to my first letters (above in first post).

 

they have passed on the first CCA request to Fredrickson International but for account based stuff they need a SAR.

 

This stuck out though.

 

"We are unlikely to hold any statements or the agreement from your original creditor"