Lowell/BW Legal - claimform - old CAP1 card 'debt' [they tried an SD 2013 and lost]

[Octian]

Out of the blue - without any LBA, received a summons from court relating to oldish Cap1 debt.

 

 

Had dealing with Lowell about two years ago

submitted CCA request in June 2011.

 

 

So far, and despite numerous requests and letters,

received a completely unreadable agreement,

no notice of assignment and an account statement saying balance was zero. It's not SB debt.

 

Sent in defence saying the CCA request hasn't been actioned and therefore any alledged debt is un-enforcable.

 

 

Had letter from BWL saying they wanted to proceed and now from court suggesting mediation.

 

Any advice ?

 

 

I want to know by 'un-enforcable' in the CCA

does this mean that they can still issue a summons ?

 

 

Seems to me pointless to issue one on an unforcable debt,

or are they likely to have another card up their sleeve ?

[citizenB]

Erm, you aren't very clear in what you are saying..

 

Are you advising that you have received a court claim ? It would have been useful had you let us know prior to submitting your defence.. however..

 

If you can give us a little more information regarding the account/claim then perhaps we can provide more advice for you.

 

Despite having submitted a defence, if you could have a read of the thread linked below and answer the questions, post them in this thread, it will make life a little easier for those looking in on you.

 

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

 

If the claimant was in default of your s78 request then they should not be able to obtain a judgment against you. If the account was opened prior to 2007 then they will require the original document for court action.

 

If you were not aware of the assignment, then you could have questioned the claimant's right to bring the claim.

 

If they did not follow preaction protocol prior to issuing the claim and this came out of the blue, again you could question why.

 

The Courts like to see the parties to the claim try to resolve before wasting court time - so their suggestion of mediation is not unusual. It would be in your interest to agree, despite there not being much of a success rate with this method.

 

If you believe you have a strong defence, then you simply stick to your guns and it will then proceed to court if Lowell believe they have an even stronger claim.

 

However, provide us with more information and we can let you know.

[Octian]

Name of the Claimant ? Lowell Portfolio 1

Date of issue –26/11/14

What is the claim for – the reason they have issued the claim? Old Capital One Credit Card account.

What is the value of the claim £1600

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

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

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? I certainly cannot remember doing so.

Did you receive a Default Notice from the original creditor? I think I did yes.

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? No

Why did you cease payments? Self-employed and main client went bust.

What was the date of your last payment? Early 2011

Was there a dispute with the original creditor that remains unresolved? No

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan? I think I mentioned problems to them, but again it's a long time ago. I don't think that a formal agreement was made.

To be honest I felt fairly confident sending a defence as they hadn't complied with the CCA request back in 2011 (and still haven't).

 

defence is that I disputed the debt,

I have lots of documented letters asking for details of the account, NOA and readable agreement.

To date - unreadable photocopied agreement and statement showing zero balance.

 

Protocol wise the last communication prior to the claim arriving was a threat to issue bankrupcy proceedings in January 2013

- which I rebuffed with the same arguements and

 

never heard a tweet out of them until the court papers.

 

So I wouldn't have thought that a letter (which didn't mention a county court claim)

nearly two years ago complies with standard protocol, but I maybe wrong.

 

Also the claim mentions that full details of the claim will be sent within 14 days (nothing heard yet)

and they also responded to the defence just outside the 28 days but the court seems to have allowed that mistake.

 

[dx100uk]

old & new threads merged for history

 

 

dx

[citizenB]

From what you say, then it is unlikely they did comply with Pre action Protocol - did you mention within your defence that they had previously issued a Stat Demand which had been dismissed ?

 

And that one of those reasons for dismissal would have been the non compliance with your s78 request - despite this they are now attempting to go via the route they should have done originally - but still whilst in non compliance with the s78 request!

 

These are things that you would raise at the mediation - if it gets that far.

[Guest]

.. did you mention within your defence that they had previously issued a Stat Demand which had been dismissed ?

 

And that one of those reasons for dismissal would have been the non compliance with your s78 request - despite this they are now attempting to go via the route they should have done originally - but still whilst in non compliance with the s78 request!

 

.

 

citb

 

the SD was allowed eg #33 etc. but, looks like they never petitioned, and now the claim.

 

they have sent stuff re request (after the SD), but is illegible?

 

octian, can you type up their particulars also. at what stage are you, post directions questionnaire?

[Octian]

I have just received the form offering mediation.

 

Not returned it yet.

 

Now they did produce a zero balance statement and unreadable agreement at the set aside hearing.

 

Judge said it was highly unlikely they would be able to petition on the documents they had.

 

The set aside was dismissed because I sent the CCA request after the SD therefore he said it had been issued correctly.

 

The CCA was sent in June 2011 and

 

I have sent numerous letters since requesting the required information but haven't had anything since.

 

They said they would petition in January 2012 but never did,

 

never heard a tweet until the court claim.

 

No LBA.

 

Claim form said full details would be sent within 14 days,

 

it's now 40 plus days and nothing.

[Octian]

OK - nearly three years after the CCA request (June 2012),

 

 

just received a form of a statement.

 

 

Many items not listed,

figures don't add up,

no details of interest rates,

some penalty charges etc.

 

 

It's clearly not a CAP1 statement (ie on headed forms).

 

 

Still not received a readable agreement,

notice of assignment,

copy of default notice etc.

 

I opted for mediation but haven't heard anything from the court, so not sure of a way forward ?

 

BWL have offered a 20% for early settlement again.

 

Octian

[Guest]

at what stage are you re the claim, stayed?

[Octian]

They issued a summons,

 

 

I agreed to mediation back in January but nothing heard since.

 

 

The CCA request was June 2012

 

 

it's nearly three years to produce any sort of statement,

 

 

still no readable agreement (they did send a completely unreadable one),

 

 

no notice of assignment,

 

 

no default notice

etc.

[Guest]

maybe it is currently stayed re medition/settlement, give the court a ring to check its status.

what are the particulars of claim, what was your defence. verbatim except for any identifiables.

[Octian]

Particulars of claim - for £XX

 

 

- The defendant entered into an agreement with the original creditor set out below

pursuant to which the defendant agreed to pay the originakl creditor for services and/or facilities provided to the defendant.

The defendant has breached contractural obligations pursuant to the agreement

in respect of which the original creditor has notified the defendant of the breach and made a demand for payment.

 

The sums became payable in full following service of a default notice by the original creditor

on the date stated below and this being unsatisfied by the defendant.

 

Original creditor - Capital One (Europe) PLC

Agreement Number XXXXXXXXX

Agreement Type - Credit Card

Default Date -

Balance Due - £ XXXX

The claimant is a debt purchaser which has purchased the rights and benefits in the debt set out within the particulars of the claim

by virtue of a legal assignment pursuant to section 136 of the land and property act 1925.

 

Further details in the claim relate to statutory interest.

 

Defence was

 

I dispute the full debt.

The claimant was issued a CCA request in June 2012 with which they have failed to comply in any way.

The debt therefore cannot be proven and is unenforcable in law whilst the claimant remains in default of the request.

 

Since then

- After near three years I have received a statement of sorts, but no readable agreement, notice of assignment, default notice etc.

 

I need to reply to this in the next few days really.

 

 

I'm planning to say - still need default notice,

still need agreement,

still need notice of assignment

and they're still in breach of the CCA until they can produce it therefore it unenforceable.

 

Thanks for your help Ford.

[dx100uk]

why do you need to reply?

 

 

have you a hearing date?

 

 

dx

[Octian]

Well i suppose i don't have to reply. But they sent one of their normal 'without prejudice ' letters offering discount for admitting the debt to them etc.

 

No court or mediation date yet.

 

 

Do you think I should just ignore it or maybe standard rebuff saying comply with CCA ?

(Awaiting agreement, NOA and default notice etc).

 

 

There are also many errors on the statement.

 

 

Figures don't add up on some pages and no details of interest rates etc.

[dx100uk]

me thinks you sit on your hands

the next move is theirs should the wish to pay the fee and proceed.

 

 

it wouldn't hurt to ring the court

but I suspect the case is currently stayed.

 

 

dx