lowell/Carter claimform - old cap1 'debt'***Claim Struck Out***

[dx100uk]

your thread is a prime example of why we don't like people hiding things and being vague

 

 

it makes our life rather difficult.

 

 

dx

[notdoneyet]

Thank you DX. Lifesaver x

[AndyOrch]

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

 

Did you receive a Default Notice from the original creditor? - YES

 

2. Paragraph 2 is denied. the Defendant has no knowledge of any legal assignment, having never been served any Notice of Assignment from either the original creditor or the claimant pursuant to the Law of Property Act 1925.

 

3. Paragraph 3 is denied. The Defendant has never been served a Default Notice pursuant to the CCA1974 .

 

 

Think you need to rethink/reword the above.

 

Andy

[notdoneyet]

Thanks for that Andy, all of it was submitted to the court in time.

 

I have this morning received a letter from Bryan Carter:

 

'We are writing to formally confirm our Clients intention to proceed with this matter.

 

We will send notification to the Court shortly but before we do so our Client is prepared to enter into negotiations to try and achieve a solution whereby both parties avoid further costs and expenses, and if necessary yo mediate. The Court encourages this type of negotiations between the parties.

 

Please contact our helpful team on: 0345 839 6166 to discuss how we can come to an arrangement by consent.'

 

I have received no more letters from the courts with regards the case since the initial court papers.

 

Lowell have not yet supplied under S.78 nor responded to the request from 22nd May.

 

Bryan Carter did respond in June to the CPR 31.14 request with a letter stating that:

 

'We confirm the claim form was issued by the Northampton County Court Business centre and that the Court's 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 by the this court.

 

We confirm this matter will most probably be allocated to the small claims track as this is a simple contractual matter and Part 31 of the Civil Procedure Rules will therefore not apply.

 

It is our understanding that it is policy for the original creditor to issue agreements at the point of contract and statements throughout the duration of the agreement and, in this regard, we ask you to refer to your own records.'

 

 

Firstly, I thought mediation was handled by the courts? I have tried to log into MCOL this morning and it keeps telling me my details are incorrect even though I have checked my user ID and had a new password just incase. So on the phone waiting to speak to the help desk to sort that.

 

So Lowell are in default of the S.78 request and Bryan Carter say I should have my own copies of any paperwork including the original agreement - does that mean on my day in court they will be relying on that agreement I have to get a judgement against me? I am being sarcastic btw - surely if they are going to court with me, they and their client would have to have these all in a nice line?

 

Do I need to respond to Bryan Carter about their request for me to get in contact to discuss things or will the courts send me a letter about the actual mediation process to arrange a call?

 

Thanks all once again for reading.

[AndyOrch]

Its his standard response...which you would see on every other BC thread.Mediation will be offered by the court if the claim progresses....direct mediation with BC is his last role of the dice before discontinuing.

 

"We are writing to formally confirm our Clients intention to proceed with this matter."

 

See if they do.

[notdoneyet]

Just spoke with MCOL and Bryan Carter are intending to proceed with the claim. Nothing on the MCOL system as yet but they gave me a date of the 20 something of this month they had to be able to proceed, so it looks like they are.

 

I have a questionnaire on its way out to me already.

[AndyOrch]

That will be the directions questionnaire N180

[notdoneyet]

Thanks Andy,

 

Paperwork arrived in today from the court.

 

Allocated to the small claims track and I have until 10th August to complete the N180 directions questionnaire as you say.

 

As has been suggested I will go down the mediation route - but is there anything else I should be doing at this stage?

 

Thanks all.

[AndyOrch]

Not really...just complete the N180...yes to mediation yes to small claims track...the rest is self explanatory...file with court by the date stated and serve a copy on the claimant.

[notdoneyet]

Hi all,

 

Have a bit more to update on this case now.

 

Received a letter from BC again telling me to contact them to enter into mediation - which I ignored as before.

 

BC have sent me a letter with the 'agreement', T&Cs, statement of accounts, default notice and notice of assignment.

 

The 'agreement' is exactly what I have received in the past from CAP 1, a copy of the original application form.

 

The T&C's, are version V11b# which are printed generic T&C's which they state are my original agreement terms.

 

They have also attached V14# which they state are the T&C's at the time of my default.

 

Default notice they have included shows that I was defaulted by CAP 1 at the end of May 2009.

 

They have broken down my monthly payments, but interestingly only show PPI on the breakdowns starting July 2008 - even though this was being charged from the outset. Could this be because they hold no detailed accounts beyond the 6 years from todays date?

 

The hearing is being moved to my local courts and the mediation team state they have not been able to organise mediation at this time. When I rang the local courts they stated that due to it being moved my local court would assign it to a track and then the mediation team would be in touch directly.

 

Is there anything new here I should be concerned about? It pretty much looks like all they have is what we already know.

 

They have said, that their client is willing to enter into 'without prejudice' negotiations to settle this matter by way of a Tomlin order and to contact them directly if I wish to take them up on this.

 

Never heard of a Tomlin order before - is it some kind of charging order?

 

Thanks everyone.

[Bazooka Boo]

You need to definitely research a Tomlin order.

 

It's a civil consent order.

[notdoneyet]

I did do some research on it yesterday and it seems a convenient option for them as they could get a CCJ automatically if I were to default on any agreed payment for any reason.

 

It being confidential is of no benefit to me as my credit history is shot anyway, so at the minute a tomlin order is only of benefit to lowells as I am admitting the debt by accepting it.

 

As they havent presented me with an actual agreement - nothing beyond the signed application form - and BC sent me all that they believe I asked for under the CPR, can they then turn up on the day of court with anything else and by allowed to submit it? (an original signed agreement for example).

 

Am I correct in still thinking with just the signed application form they cant enforce the debt, even through the courts?

 

And now that they are continuing with the claim, at what stage do I introduce the unlawful charges and PPI applied to the account? Just incase they can enforce the debt with what they have.

 

Thanks all.

[AndyOrch]

Entering into a Tomlin Order does not signify any admittance to the debt....simply agreeing to stay the claim and make a payment arrangement thus avoiding further costs and a possible CCJ.

 

Andy

[notdoneyet]

Thanks Andy,

 

It all sounds very defeatist though, is this an option I should actually be considering?

 

Bearing in mind:

 

They only have supplied me with a signed application form...

 

And there is enough PPi and unlawful charges plus interest added to this account to pretty much clear the whole amount owed?

 

On top of this I am in receipt of benefits as my sole income so realistically what would they be thinking a court would grant them should it go that far and I were to loose?

 

Thanks

[AndyOrch]

Not really defeatist.....it all depends on a few factors...whether to gamble and proceed or shelf it by way of a Consent Order

 

How strong is their claim ?

Age of the agreement?

Have they disclosed the agreement?

How good is your defence?

Which Claimant and Solicitor?

Value of the claim?

 

Subject to the above points.....and your answers...you will have decided yourself whether its worth contemplating a Tomlin Order.

 

Regards

 

Andy

[notdoneyet]

Hi Andy,

 

Not sure how strong their claim is, going by what DX has said earlier in the thread without the agreement they are singing in the wind essentially.

 

But to answer your points:

 

Agreement is 2005

 

They have simply sent an application form - both CAP1 and Carters - and called it an agreement

 

Defence is based on the lack of an actual agreement and as per what I posted on page 2.

 

Lowells and Bryan Carter

 

Value is around £2k.

 

All of this as an aside, what about the PPI/unlawful charges? Do I just ignore this element to the account and if so why?

[notdoneyet]

Sorry, page 3 of this thread:

 

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 denied regarding the Defendant owing any monies to the claimant. The claimant has failed to provide any evidence of agreement/contract/breach as requested by CPR 31.14 and a Section 78 request. The Claimant remains in breach of the sec78 request pursuant to the CCA1974.

 

 

 

2. Paragraph 2 is denied. the Defendant has no knowledge of any legal assignment, having never been served any Notice of Assignment from either the original creditor or the claimant pursuant to the Law of Property Act 1925.

 

3. Paragraph 3 is denied. The Defendant has never been served a Default Notice pursuant to the CCA1974 .

 

4. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and with the Court’s permission, 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

c) evidence any nature of breach and provide proof of any Default Notice and Notices of Sums in Arrears; and

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

 

5. 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.

 

6. 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.

[AndyOrch]

All of this as an aside, what about the PPIicon/unlawful charges? Do I just ignore this element to the account and if so why

 

The PPI can be used should you get to mediation or agreeing a Tomlin Order as leverage......or alternatively you could issue a counterclaim but only if you have done all the necessary groundwork first and it has been vetted as miss old PPI first. (FOS /FCA etc)

 

As for the unfair charges ...you may struggle to attain any benefit or reduction from that.

[AndyOrch]

Yes that's one of my defences ...know it well:-)

[notdoneyet]

Well it appears mediation is the next step - once my local court has assigned the track etc.

 

I was self employed at the time of taking out the account so PPi would never have applied to me, however they sold it anyway. However, who can vet this for me before I go down the route of mis sold?

 

On the basis of my answers above, what would you do if it were you?

 

 

Does it seem unlikely that they would be able to enforce the debt without an actual agreement as DX suggested?

[AndyOrch]

Financial Ombudsman Service (FOS) for the PPI...but it can be a slow process and wont assist at this stage...as a counter claim should have been submitted with your defence (this is called a Part 20 claim)...to submit a CC afterwards or during proceedings you would have to make application to the courts with fee.

 

I really cant say whether they would be able to push through on the paperwork already provided...different courts...difference quality of District Judge...but if they have enough paperwork ..statements and default notice and and assignment...the court on the balance of probabilities could/would most probably allow judgment.

 

So plenty of variables to consider.....relying on the claimant to throw the towel in or the paperwork will not cut it can be a gamble.....entering into a Tomlin Order will stop the claim avoid the judgment and possibly costs and put you back to pre claim....but you would have to pay the debt as agreed in the Tomlin Order...which after all is your debt and the reason we are were we are now... because you stopped paying (for what ever reason).

 

Regards

 

Andy

[notdoneyet]

Andy,

 

All the way through this thread I asked about PPi and was advised not to consider it at this stage. Now you are telling me I should have done this had it been something I wanted to do - this is news to me.

 

I stopped paying because of financial issues due to mental health problems and a failing business. CAP 1 sold me PPi which I was unable to claim on and it appears that I'm the bad guy here for failing to keep up to my obligations due to a debt I owe. That's what the debt collection agents tell me also.

 

Reading back through this thread it was made clear that without 'an agreement' they have no way to enforce this debt - but now it seems it's quite likely they could even without the agreement - I don't know where I stand here.

 

Is it simply luck because you guys know your stuff and are highly regarded by all on here who trust your judgement and guidance and luck can't be the basis of any of this advice (and until your last posts, it never came across as anything other than facts were been used when advising).

 

A Tomlin Order seems a convenient way to wrap things up in a box for the dca , giving them the full amount when they have paid penny's in the pound for my 'debt'.

 

Very confused and concerned.

 

Thanks

[notdoneyet]

forget the PPI & charges

only POSS useful under mediation.

 

 

This is what I mean Andy, I mentioned PPI in my opening post and the advice was to leave it until mediation - but really I should have counterclaimed at the time of filling my defence from what you are saying.

 

My defence looked good up to this stage but with no new paperwork it now looks like a 50/50 (reading between the lines) and what now looks good is the Tomlin Order option.

 

How and why please?

 

I'm genuinely sorry for bombarding you with all this but I am so confused by this that I've ended up in what feels like a much worse situation and yet nothing has changed other than the other sides mention of a Tomlin Order.

 

Is it really that much of a saviour and how much are they likely to expect me to pay back each month considering I'm barely covering my bills from my benefits?

 

Thanks.

[AndyOrch]

Im not saying that at all ...simply giving you different variables of what can happen...as you requested my advice.

 

I personally wouldn't entertain making a Counter claim on the PPI as the debt has been assigned...simply stating the procedure as you asked me about PPI /unfair charges...yes I would use it in mediation Tomlin Order.

 

Simply pointing out all the variables in assisting you to decide whether to entertain a Tomlin Order...all my posts explain all the different scenarios that can happen...impossible to state what will happen.

[AndyOrch]

You could do absolutely nothing and the claim is stayed never to be heard of again...another scenario