Lowell/BW Claimform - old CAT 'debt' not properly executed?

[onceceltic]

Hi all, Very new to this forum but have read dozens of the threads and hope I have followed the correct protocol.

 

I have sent a CCA Request to the claimant and BW Legal, no response yet

I have sent a CPR31.14 request to the solicitor named on the claim no response yet

I have done the AOS via the online portal stating I will be defending all of the claim.

**************************************

 

Name of the Claimant ? Lowell Portfolio 1 LTD

Date of issue – 15th Jan 2015

What is the claim for – the reason they have issued the claim?

 

The claimant’s claim is for the sum of £1648.00

being monies due from the Defendants to the Claimant under a Home Shopping agreement

regulated by the Consumer Credit Act 1974 between the defendant

and JD Williams & Company limited under account Wxxxxxx and

assigned to the Claimant on 04/01/2013 notice of which has been given to the defendant.

 

The Defendant failed to maintain the contractual payment under the terms of the agreement and

a default notice has been served and not complied with.

The claim also includes statutory interest pursuant to section 69 of the county courts Act 1984

at a rate of 8.00% per annum (a daily rate of 0.30 from the date of assignment of

the agreement to 04/01/2014 being an amount of £109.80

 

What is the value of the claim? Amount claimed 1498.00 Court Fees 70.00 Solicitor’s costs 80.00 Total amount 1648.00

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

When did you enter into the original agreement before or after 2007? 01/07/2002

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. Lowell

Were you aware the account had been assigned – did you receive a Notice of Assignment? NO

Did you receive a Default Notice from the original creditor? Not Sure but probably

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

 

Why did you cease payments? Account dispute, erroneous charges added for items not received

What was the date of your last payment? December 2009

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

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a dept management plan? NO

 

Background

 

An “account” was set up over the internet in 2002,

no CCA was ever received or signed by myself.

The account was operated frequently for a period of 7 years with no issue,

with the credit limit increasing over this time to £3,500.

 

In Dec 2009, ordered items failed to be delivered,

Fashion World failed to accept this despite there being no proof of delivery.

 

 

At the time Fashion world used HDNL as their couriers who were well know to misplace parcels

and leave them on door steps etc.

 

 

Months of arguing perused, with me refusing to make any further payments

until the errors on the account were corrected.

 

Lots of threatening letters and harassment phone calls over most of 2010,

resulting in me having to change our phone number.

 

 

Throughout this I maintained if the account was corrected I would recommence the payments.

Balance at this point was around £500. Eventually letters stopped.

 

In early 2012, as a result of having a credit application refused,

I checked my Experian credit file. It was at this point I found out that Fashion World

had marked a default on my file on Dec 2012.

 

At this point I became aware that the dept may be unenforceable due to the manner that the account had been set up.

I wrote to again to Fashion World advising them that despite my believing the dept to be unenforceable,

I was prepared to pay off the original amount on the proviso that they removed all record of the default from my credit file.

I also at this point requested a copy of my agreement.

This letter was not responded to.

 

No other correspondence was received in relation to this account until

 

 

I got the Court Claim on 20th Jan 2015

followed by a letter the next day (dated 19/01/15)

from BW Legal advising “we have now issued legal proceedings”.

 

I understand that I now have until 16/02/15 to submit my defence, which is where I need some help.

 

 

From what I have read, I believe the agreement was not properly executed

so cannot be enforced through the courts.

 

 

Is this correct and if so what parts of the law should I be citing in the defence.

 

 

Would it also benefit to state that the assignment had occurred whilst the account was in dispute or would that be acknowledging validity of the agreement.

 

 

Any Help would be appreciated, Thanks

[AndyOrch]

Hi and welcome to CAG

 

You seem to have grasped quite well how to deal with this from your post above...with regards the defence you do not have to go into legal detail as to how and why the agreement is unenforceable.

 

The fact is that the account is in dispute...you ordered items and they failed to deliver...you tried to resolve...they didnt want to know.

 

Have a read of the following and look for similar threads in our success forum...in particular catalogs and by the claimant Lowell...you will see how to initially respond...the form content and layout of successful defences.Then try to draft one yourself to fit your particulars of claim...post it here to be checked and advised on.

 

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

 

Regards

 

Andy

[onceceltic]

One point to add is that

 

I have today checked my credit file and

 

the entry from Fashion world had disappeared completely

 

but there is a new one there from Lowell,

 

showing just one entry of a default on Jan 2011

 

no history and says last updated on 08/05/13

[dx100uk]

that's std practice when a debt is sold on.

 

 

as long as the defaulted date in the summary does not change

 

 

dx

[onceceltic]

 

as long as the defaulted date in the summary does not change

 

 

dx

 

 

It has changed, the original on my credit report states Fashion World default as 21/12/2010 current report shows Lowell default date as 04/01/2011

 

 

I know it is only 2 weeks but is this of any relevance ?

[dx100uk]

not worth arguing over 2 weeks

 

 

dx

[onceceltic]

I think I have gone a bit OTT on the defence but felt it would be easier for someone here to advise me to remove stuff rather than add.

 

Could someone please take a look and advise.

 

Also could someone clarify the exact date I need to submit the defence given that the issue date was 15th Jan 2015.

I make the deadline as 16th of Feb 2015 is this correct?

 

Particulars of Claim

 

1. The claimant’s claim is for the sum of £1648.00 being monies due from the Defendants to the Claimant under a Home Shopping agreement regulated by the Consumer Credit Act 1974 between the defendant and JD Williams & Company limited under account Wxxxxxx

 

 

2. and assigned to the Claimant on 04/01/2013 notice of which has been given to the defendant.

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

4. The claim also includes statutory interest pursuant to section 69 of the county courts Act 1984 at a rate of 8.00% per annum (a daily rate of 0.30 from the date of assignment of the agreement to 04/01/2014 being an amount of £109.80

 

Defence

 

 

 

1. It is accepted that I have had financial dealings with a mail order company called Fashion World (now know to be JD Williams & Company) in the past. However it is denied that any agreement regulated by the Consumer Credit Act 1974 exists between myself and JD Williams & Company limited.
    
   An “account” was set up over the internet 27th July 2002, No agreement was ever received or signed by myself and given that this action took place before December 2004, The Consumer Credit Act 1974 (Electronic Communications) Order 2004 does not apply. Therefore any agreement will have been improperly executed as s.61 (1)a of the act was not complied with.
    
   In 2009, as a result charges being made for goods that were not received, the account was placed in dispute by myself until the matter was rectified. At this point a formal request pursuant to s.79 of the Consumer Credit Act 1974 was sent to Fashion World requiring they provide me with a true signed copy of the alleged credit agreement relating to the above account. The Fashion World has failed to comply and therefore is in default of this request and as such unable to request any relief until compliance. This request was not respond to.
    
   In addition upon receipt of the claim form I have sent another formal request pursuant to s.79 of the Consumer Credit Act 1974 to both the Claimant and their solicitors requesting they provide me with a true signed copy of the alleged credit agreement relating to the above account. The Claimant has failed to respond to the CCA Request sent to the Claimant and Claimant's Solicitor and therefore is in default of this request and as such unable to request any relief until compliance.
    
   Furthermore the Claimant's solicitors has failed to and refused to comply with a request for documentation pursuant to CPR 31.14
    
   The Claim is therefore denied until such time the claimant can clarify and comply with my request under section 79 of CCA1974.
   
2. No correspondence has been received from Fashion World since December 2010, I am not aware of any Assignment of any alleged debt nor have I ever received any Notice of Assignment pursuant to the law of property act 1925. It is against the OFT 664 guidance for debt collection and the lending code for any alleged debt to be assigned whilst it is in dispute.
   
3. Any alleged agreement will have been improperly executed as s.61 (1)a of the act was not complied with. No default notice has ever been received thus there can be no suggestion of non compliance.
   
4. The claimant is denied section 69 interest to the value of £ 109.80 which they have included within the alleged debt. It has yet to be judged and is at the discretion of the court to allow any interest.
   
5. As no agreement is in place and no terms and conditions have been signed the defendant is not able to be in breach of any terms and conditions and therefore it is not believed a Default Notice was issued to the defendant, not could be issued to the defendant, and the Claimant has thus failed to provide a copy stated in their particulars of claim.
   
6. As any alleged agreement would have been made prior to a) 06/04/2007 and b) before the of the Consumer Credit Act 2002 then s.127 (1)a and s.127 (3) of the Consumer Credit Act 1974 will apply and the court is directed not to make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with.
   
7. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.
   
8. On the alternative, 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 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.
   
9. As any transactions made with JD Williams were not under a credit agreement, the defendant maintains no further money is owed to the Claimant.
   
10. 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.
    

[dx100uk]

not till Friday 20th feb by 4pm

 

 

take you time

 

 

dx

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/showthread.php?429211-Lowell-claimform-for-old-cat-debt-***Claim-Discontinued***

 

 

post 63

[onceceltic]

Hi Guys

The four letters I sent (two cca requests and two CPR 31.14)

to both BW Legal and Lowell were shown as signed for on the 3rd Feb.

I have today received a letter from BW Legal that reads as follows....

 

We write with reference to the above matter and in response to your letter dated 25 January 2015.

 

We confirm we have received your request for documentation under s78 of the Consumer Credit Act 1974.

We have referred your request to our client.

Our client may have to refer your request to your original creditor.

Accordingly, the documentation will be forwarded to you upon receipt.

 

We will seek to ensure that the information you have requested is provided within 12 working days,

however this is contingent on receiving the documentation from your Original Creditor within the aforementioned timescale.

 

What now?

What is the relevance of the 12 days they mention,

I believe I have until the 20th to submit the defence,

however I do not want to leave it until the last minute in case of any technical issues.

 

 

Should I just use the standard template below or should I also include the facts around improperly executed agreement as s.61 (1)a of the act

was not complied with and also mention the other elements of point 1 of the defence I drafted above?.

Is less more in this case or should I Include all the ammunition I have?

 

 

1.The claimant’s claim is for the sum of £1648.00

being monies due from the Defendants to the Claimant under a Home Shopping agreement

regulated by the consumer credit Act 1974 between the defendant

and JD Williams & Company limited under account Wxxxxxx

2.assigned to the Claimant on 04/01/2013 notice of which has been given to the defendant.

 

3. The Defendant failed to maintain the contractual payment under the terms of the agreement and

a default notice has been served and not complied with.

3. The claim also includes statutory interest pursuant to section 69 of the county courts Act 1984

at a rate of 8.00% per annum (a daily rate of 0.30 from the date of assignment of

the agreement to 04/01/2014 being an amount of £109.80

 

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.Paragraph 1 is noted. I have had an agreement in the past with Shop Direct but any alleged balance is and remains in dispute for faulty goods/services.

 

2.Paragraph 2 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served over 3 years ago.

 

3.It is therefore denied with regards to the Defendant owing any monies to the Claimant,

the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14,

 

Furthermore a request was made pursuant to the CCA1974 section 78 and as at this date the claimant has failed to comply

and therefore in default of said request, therefore the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

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

 

 

 

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

 

5.On the alternative, if 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 of the Law of Property Act and Section 82A of the consumer credit Act 1974.

 

6.By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

All your advice is most appreciated

Many Thanks

Edited February 16, 2015 by onceceltic
re formant of post

[dx100uk]

typically under a CCA request they have 12+2 [working days] to comply.

 

 

however if they fail by the time of your due date

then you file regardless.

 

 

dx

[onceceltic]

Thanks dx for your prompt response, but what should I file,

just the standard response or should I include all the details including the improperly executed agreement elements?

[onceceltic]

Thanks DX for your prompt response, but what should I file, just the standard response or should I include all the details including the improperly executed agreement elements?

[dx100uk]

the defence you have provided [amended]

is all you need

 

 

however you do not need to file before 4pm Friday via MCOL

[onceceltic]

Quick update

 

 

Had no further correspondence from Lowell or BW

I put my defence (as in post #10) in lunchtime yesterday via MCOL.

I guess I now sit back and wait? How long before the next stage

Thanks

[onceceltic]

Further update

Got letter on 19th Feb from the court acknowledging receipt of defence

advising claimant must contact the court within 28 days if they wish to proceed.

If no response is received within this period the claim will be stayed.

Strangely, got a letter today from BWLegal that reads as follows....

Your monthly instalment amount has not been received

We have not received your agreed payment of £70.00 which was due to be paid and your account is now in arrears.

We understand that there may a number of reasons for you not paying the agreed amount

but it is important that you contact us to make your payment as soon as possible.

 

Then there are a couple of paragraphs around how they can help work things out, including offering a revised payment plan.

The letter then ends will please call us on 0113 323 1782 to discuss

and avoid any further calls or correspondence from us on this matter.

I have never had any agreement with Lowell or BWL and have never paid either a penny

 

I called the court and they have confirmed that they have not responded to the defence that was filed

and they need to respond by the 24th of the claim will be stayed.

Is this letter likely to be an administrative error or is it some sort of legal ploy to infer that there is an agreement in place.

Should I call them or should I just ignore the latter.

Many Thanks in advance of any advice

[AndyOrch]

Ignore.

 

Andy

[ScarletPimpernel]

Just a small point, but the OFT Guidance hasn't applied since the OFT ceased to exist!

[onceceltic]

Hi guys

 

 

Called the court today as the date that BWL/Lowell had to respond has now passed. The court advised that the case is “stayed” and that the claimant would need to pay a fee if they decided to proceed any further. They stated that if this happened, the court would inform me.

So is that it?

Do I or should I do anything else either now or further down the line?

Thanks

[dx100uk]

in a word nope

 

 

dx