lowell/carter claim - old welcome finance 'debt'

[Jocker2000]

Hi All I am a first time user here please accept my apolgies for any mistakes I make!

 

I have received a County Court Claim form from Bryan carter solictors acting on behalf of Lowell Portfolio

the original debt was with welcome finance 9 years ago.

 

 

I fell into financial difficulty due to divorce and was unable to pay the loan to Welcome,

the last payment I made to Welcome finance was 22nd May 2009

( although I need to clarify this payment with my bank) and the Issue date of the paperwork was the 22nd May 2015.

 

I have never acknowledged the debt to Lowell or Brian Carter solicitors or made any payment to either of them,

I also received a letter from Frederickson International as well (9th April 2015)

also stating that was acting on behalf of Lowell Financial Ltd again I did not respond.

 

I have answered the claim form stating I would like to defend the case and was looking for some advice on how to do so.

 

I have followed some advice on here and sent a CPR 31.14 request along with a £1 postal order

along with a letter asking for a full breakdown of my account.

I also sent another letter requesting copies of the default notice, assignment and Formal demand.

 

 

I received a reply from Bryan Carter ( attached) stating that its a simple contractual matter

and part 31 of the civil procedure rules will not apply and in any event the notices of default

and assignment left the control of the claimant when they were dispatched to me,

they also state it is the original creditors policy to issue agreements at the start of the contract

and statements throughout the agreement and in this regard we ask you to refer to my own records.

 

I have not yet received a copies of the following:

 

A copy of the agreement

A copy of the original assignment form and any consideration paid

a copy of any formal demands or default notices

 

I have received a breakdown of costs allegedly from Welcome finance which includes £734.25 worth of charges and fees ( Total debt £3953.67 )

The Claim form states a total claimed of £4534.98 as they have added the court costs and solicitors fees twice by mistake!

 

I am just waiting for a court date what if anything can I do in the meantime,

my credit file is now decent for the first time in 6 years!

 

Many many thanks in advance!

[letsgetitsorted]

please can you check your attachments the first looks like it has you address on it...

 

someone with more experience should be around soon to help

[unclebulgaria67]

This is a case of holding your nerve, submitting a defence and seeing what happens. BC issues loads of court claims, but they don't always continue with them, if they don't think they can overcome a defence.

 

When did you take out the loan with Welcome ?

 

When did the account go into default ?

 

Was the payment you made in May 2009 in response to a default notice issued ?

 

Can you answer these questions and any that follow. We need to understand the exact position, to identify best way forward.

[Jocker2000]

Hi Thank you for your reply

 

 

I am unsure of the exact date in taking out the loan it was around 2004 but I have not yet received the paperwork from Welcome or Brian carter solicitors, I have never received a default notice, the payment was made in 2009 as my attempts to keep the payments up to date this was the last payment made, is the account statute barred?

[AndyOrch]

Hi Jocker and welcome to CAG

 

If you would read the folowing and respond by posting your responses here alongside to the following link..

 

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

 

You state the issue date was 22nd May 2015...so I would assume you have already submitted a form of defence.....if you could also post that here.

 

Also your uploads are too small please convert them to PDF format please.(please redact any identifiable data first)

 

Regards

 

Andy

[unclebulgaria67]

Hi Thank you for your reply

 

 

I am unsure of the exact date in taking out the loan it was around 2004 but I have not yet received the paperwork from Welcome or Brian carter solicitors, I have never received a default notice, the payment was made in 2009 as my attempts to keep the payments up to date this was the last payment made, is the account statute barred?

 

It is probably not statute barred, but find out the last date of payment.

 

They need the original CCA or a copy of it, to enforce in court, given that the loan was issued before April 2007.

 

At the moment your defence is the failure of BC to answer a CCA request and to not respond properly to the CPR request.

[Jocker2000]

thank you so much for your reply, I really appreciate you taking the time out to respond.

[dx100uk]

was this the only loan you had with welcome?

did you ever phone them and explain your financial troubles and they refinanced it for you

and gave you a new/reduced figure?

 

 

that letter from carter is the std one he always sends out regarding CPR means nothing.

did you send a CCA request & the £1 fee?

have they responded to that yet?

 

 

get that link fill out and we'll get you sorted

 

 

the fees/charges reclaim might be useful under mediation if it ever gets that's far.

 

 

dx

[Jocker2000]

Hi thank you for your reply,

 

 

this was a restructured loan or top up

 

 

I had on an existing loan( all payments up to date on the existing loan)

 

 

I informed them at the time of default that I was experiencing financial difficulties due to the divorce/separation but I did not receive any reduced settlement.

 

 

I have sent a CCA request with a postal order for £1 by recorded delivery this was done on the 9th July 2015,

as of today I have not received a reply.

[dx100uk]

I bet it was signed by welcome staff over the phone.

does the agreement number on the claimform match that of the original loan number?

 

 

can you fill the link in post 5

and paste the questions back to a quick reply box here and add in your answers

thank you

 

 

dx

[Jocker2000]

Name of the Claimant ? Bryan carter solicitors LLP[/b]

 

Date of issue – top right hand corner of the claim form – this in order to establish the time line you need to adhere to. 22nd May 2015

 

 

 

What is the claim for – the reason they have issued the claim? The Claimants Claim is for the sum of £3953.67 being monies due from the defendant to the claimant under an agreement regulated by the consumer credit act 1974 between the defendant and welcome finance under account reference xxxxxxxx and assigned to the claimant on on 05/09/12 notice to which has been given to the defendant. The defendant failed to maintain contractual payments under the terms of the agreement and a default notice has been served and not compiled with. The claimant also claims statutory interest pursuant to S.69 of the county act 1984 at a rate of 8% per annum from the date of assignment of the agreement to date but limited to a maximum of one year amounting to £316.31.

What is the value of the claim? £4534.98

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? NO

 

When did you enter into the original agreement before or after 2007?15th September 2006

 

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.The claim has been issued by the debt purchaser

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? NO

 

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

 

Why did you cease payments? Unable to pay due to divorce

 

What was the date of your last payment? 25th may 2009 ( allegedly)

 

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 plan? NO

[AndyOrch]

And the defence you have submitted ....

[dx100uk]

came have the name of the claimant on the claimform

 

and

 

does the agreement number on the claimform match that of the original loan number you signed [not the refinanced one]?

or the refinance one?

 

and did you sign the refinance agreement or was this done on the phone?

[Jocker2000]

Hi My defence is no debt is acknowledged to your company yet you have contacted me regarding this account.

 

 

The letter I sent was downloaded from this site under the Limitation act 1980.s.% so I am stating the account is statute barred.

 

 

Is this incorrect, will I need to submit a new defence?

 

 

thanks again.

[AndyOrch]

Very vague responses....still lets try to assist....

 

What date (month) in 2007 did you enter this agreement?

 

What defence did you submit through MCOL (verbatim) ?

[Jocker2000]

Hi I am really sorry, I entered into the agreement on the 15th September 2006 as outlined in the payment schedule from Welcome finance which was sent to me by Lowell, the defence I submitted through MCOL was the following by letter:

 

 

I intend to defend the claim in full.

 

 

the letter states:

 

 

No debt is acknowledged to your company yet you have contacted me regarding the above account.

 

 

As I am sure you are aware, under the Limitation Act 1980, s.5 "an action found on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued."

 

 

No correspondence/payment/acknowledgment of this debt has been made within the last six years and accordingly unless you can provide evidence of payment or written contact from me in the relevant period under s.5 of the Limitation Act 1980, I suggest that you are no longer able to take any court action against me to recover any alleged account claimed.

 

 

Furthermore, the FCA Consumer Credit Sourcebook (section 7.15) states that "Notwithstanding that a debt may be recoverable, a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period." and that "A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because its statute barred."

 

 

Please send me a copy of the original agreement.

 

 

Please send me a copy of the assignment form signed by both parties on 5th September 2012

 

 

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

 

 

I look forward to your early reply.

 

 

Yours faithfully

 

 

This forms the crux of my defence, sorry for the vague answers its my first time on here I know understand all of the information supplied is better!

[AndyOrch]

Okay ...many thanks....

 

The date of agreement is important because if its pre April 2007 then they will have to disclose the original executed agreement...no recons can be used to waffle a judge.

 

You state your last payment was 25th May 2009 (allegedly) why allegedly ? who states it was?

 

The claim was issued on the 25th May 2015 (so that is exactly 6 years and not allowing for any missed payments or default notice to be served and complied with) normally it would be 6 years and say 2/3/ months to allow for time.

 

So you need to firm that last payment date up.....perhaps check your CRA files and check the default date notice entered.

 

I assume you submitted the above defence by the date required ...being 26th June 2015?

[Jocker2000]

Hi thank you for your reply,

 

Yes I entered the defence before the deadline

 

, I need to check with my bank to see if the payment was made as its a long time ago and they tried to add spurious charges and fees to my account before,

 

I have not yet received the original agreement,

I sent them a recorded delivery CPR request along with a postal order for £1 on the 9th July 2015,

is there a time limit for a reply and if that time limit expires is this still enforceable without a copy of the agreement,

 

if this is indeed the case will I have to submit an amended defence?

 

I will check my CRA files to see when the default was entered

I did not receive any notice of assignment or default but I have moved house twice in the last 6 years.

 

 

Many thanks.

[AndyOrch]

" is there a time limit for a reply and if that time limit expires is this still enforceable without a copy of the agreement, if this is indeed the case will I have to submit an amended defence? "

 

No time limit for a CPR request...its a civil request and the claimant is not compelled to respond.......the CCA request is 12 +2 days and if they fail to comply they are in default and unable to enforce (in theory)

[AndyOrch]

With regards to amending defences...wait until the claimant decides to proceed.(they have 28 days to respond to your defence and inform the court if they wish to proceed) otherwise the claim is stayed.

[Jocker2000]

Sorry I did send a CCA request with a postal order for £1 on the 9th July 2015 to Bryan carter Solicitors, I downloaded the template from this site. as of yet I have not received anything.

[AndyOrch]

In reality that should have gone to the claimant...not the Solicitor...but I doubt either will/would respond.......nothing further for you to do now until they decide to proceed or not.

[Jocker2000]

Thank you so much for all of your help and advice.

[Jocker2000]

Hi Andyorch I hope you are well

 

I received the following letter yesterday dated 7th September

 

Hearing date 18th December 2015

 

We write further to the court dated 6th Auguest 2015.

 

You will note the witness statement is due to be filed and served by both parties on 2nd December 2015 and the trial bundle by 11th December 2015.

 

We propose and earlier exchange of witness statements on 12th October 2015 to allow time to compile the trial bundle. Please confirm your consent or an alternative date.

 

We recommend you seek independent legal advice.

 

BRYAN CARTER SOLICITORS

 

I honestly do not understand this letter at all,

this is the first I have heard since receiving a letter from the court dated 2nd June 2015 acknowledging my defence

and the claimant must contact the court within 28 days or the claim will be stayed,

 

 

is there any way I can find out if this happened within the allocated timeframe?

 

 

the initial correspondence I have still not received a copy of the original signed credit report despite sending a CCA request on the 9th July 2015 with a postal order for £1, this was sent recorded delivery.

 

 

I have also sent a request for documents under CPR31.14 for copies of

1. The agreement contract.

2. Default Notice.

3.Assignment.

4.Formal demand.

Again I have not received anything.

 

 

Please could you advise.

[AndyOrch]

Hi Jocker...very well thank you.

 

They are referring to the court directions...all parties must comply with the directions by the dates stated...the Directions are contained within the Notice of Allocation (you should have received this after you submitted your Directions Questionnaire N180/181)

 

Each party is expected to complete Standard Disclosure ...this is disclosing all documents you are going to rely on that you may have referred to within your defence or Witness Statement (this must also be complied with after Standard Disclosure)

 

Witness statements are submitted to support your defence....its an account in your own words as to why you defended the claim ..along with supporting documents (if any documents are referred to within your Witness Statement) Witness statements are exchanged simultaneously by the dates stated within the Notice of Allocation.

 

So the letter you have received is simply asking for those dates to be brought forward and asking for your agreement of same.

 

Regards

 

Andy