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Lowell/Carter clamform - no info on the debt up to the witness statement stage . please help!


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My first time using a forum ever, wish i had done this sooner ....

 

ill try and explain best i can.

 

had a Lloyds bank account roughly 5 years ago, changed bank accounts since and thought nothing of it.

 

I then received a County Court Claim form on 28th April 2015

 

 

then a letter from Bryan Carter Solicitors on 29th april 2015 out of the blue saying i owe £270

 

 

The claim form states :

 

Particulars of claim

 

The claimants claim is for the sum of 181.10, being monies due from the defendant to the claimant

under an agreement regulated by the consumer credit act 1974 between the defendant and Lloyds.

Under account reference XXXXXXXX

and assigned to the claimant on 03/07/13, notice of which has been given the the defendant (Ive never received this)

 

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 (again not received)

 

And the claimant claims 181.10

 

the claimant also claims statutory interest pursuant to s.69 of the country 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 and a maximum of 1000 amounting to 14.49

 

in brief i replied to the court and sent in a defence stating that i had never received the default notice nor any other correspondence

before the claim form and that i had requested a copy of the credit agreement including the £1.00 payment but no reply

. (i sent them recorded delivery and have the signature as proof they were received)

 

They offered mediation to which i said yes but when i spoke to the mediation team it wasn't suitable

as i had still not received a copy of the agreement i had requested for a second time.

 

the last reply i got from bryan carter was on 17th july 2015:

 

"we confirm we are taking further instruction from our client in regards to your request for documentation

under the consumer credit act 1974 and we will revert back to you in due course.

 

We confirm the production of these documents at a later date will rectify any earlier breaches."

 

Then on the 11/8/2015 i received notice of allocation to the small claims track (hearing)

 

My hearing is on the 16th October and i need to put in a witness statement 2 weeks before that...

... i dont know where to start with it?

 

 

and also after reading a few other threads i think i should have asked for CPR 31.14 at the beginning but i didnt:|

 

its really weighing heavy on my mind now and just want to get this statement in and let the court decide

 

 

its not a very large amount

 

 

i keep thinking i should just give in and pay (not that i have that to hand)

 

 

but then i think why should i when i dont have any information about this debt???

 

 

any help would be so much appriciated!!!

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I would suggest this is a bank account overdraft. if the number on the claimform is not 16 digits

quite usual for carter

loads of like threads here

 

 

I've moved you to the financial legal forum

 

 

lots to read

 

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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thanks dx

 

yeh the number on the form is actually 14 digits long,

i would say that it could only be an OD as i certainly never had a credit card or loan from them....

 

thanks for moving the thread,

ive been looking at the others,

 

 

and I've noticed that this is the stage where carter will either send a letter of dismissal

or pull some documents from nowhere to put in his statement....

 

i think i just need to send my statement in by the 2nd October and then wait,

 

 

just don't know how to word it so it doesn't sound so amateur, hoping carter will back off but knowing my luck he wont! :violin:

 

thanks for answering me so quick

 

Amy

 

p.s is it a usual carter letter when he states that if he produces the documents at a later date it will rectify any earlier breaches?

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Why not contact Lloyds to find out why there is a debt and you don't know anything about it. If you did not move house, there is no reason why Lloyds would have not written to you.

 

If you did know of the debt 5 years ago but did not get around to paying it, then you might think it is not worth the hassle of attending a court hearing and decide to pay the amount of the court claim. Now it is quite possible given the small amount, that Carter won't bother continuing and you could gamble on it. But don't issue statements to a court saying you don't know anything about this debt, if you did receive communication which went ignored. A relative of mine swore they never had communications about debts, as the letters were binned and forgotten.

 

If you genuinely have 100% no knowledge of why there is a debt with Lloyds then speak to Lloyds. Get copies of statements and find out why you did not hear about it. With the information you can decide what to do and if you want to continue defending you have some information.

We could do with some help from you.

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Thanks unclebulgaria67

 

I have infact moved house several times since then so it could be possible letters have went else where and as i had no reason to believe there was anything out of order i have not given loyds new address.

I should have contacted lloyds earlier i know but didnt know where to begin with that as i don't have any of my old bank details etc and panicked because i knew i was on the courts timetable.

If my statement is due in the beginning of October will i have time to contact lloyds now? And if they come back saying there was an overdraft debt what happens then? Or indeed if they have nothing?

 

Amy0807

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Thanks unclebulgaria67

 

I have infact moved house several times since then so it could be possible letters have went else where and as i had no reason to believe there was anything out of order i have not given loyds new address.

I should have contacted lloyds earlier i know but didnt know where to begin with that as i don't have any of my old bank details etc and panicked because i knew i was on the courts timetable.

If my statement is due in the beginning of October will i have time to contact lloyds now? And if they come back saying there was an overdraft debt what happens then? Or indeed if they have nothing?

 

Amy0807

 

If you find Lloyds central customer service number and can answer the security questions, they can provide information. It should be pretty quick to get the information if you start by making a phone call.

 

You want to know why there was suddenly a debt after closing the account. I suspect a debit payment has gone through late and it reopended the acccount, went overdrawn with fees and charges added. But unless you speak to someone at Lloyds you might not find out.

 

If you don't want to find out from Lloyds about this now, then just pay the court claim. At least you have no worries about a CCJ or court hearing. Would not stop you later writing a complaint to Lloyds to find out about this and if they have made a mistake claiming the amount back from them.

 

Your choice really.

We could do with some help from you.

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Yes i will call lloyds and see what they say...

 

I still think i will be entering a witness statement as carter/lowell have also not provided me with any documentation i have requested.

if the court rule in their favour then i will pay within the 28 days to avoid a ccj and take that as a lesson learned.

 

Normally i am the type of person who would bury my head when it comes to any problems

 

 

so just the fact that i am trying to face this is a step forward for me.

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"i had requested a copy of the credit agreement including the £1.00 payment but no reply. (i sent them recorded delivery and have the signature as proof they were received) "

 

If it is a current account unauthorised overdraft then sections 77/78 (CCA Request) does not apply....can you post a copy of your defence Amy?

 

Regards

 

Andy

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As you are at the stage of submitting a WS and Disclosure then your defence as been accepted by MCOL...so was good enough to stop default judgment.Forget about the CCA and CPR requests as in probability he wouldn't have made any response anyway.

 

So now you need to prepare your WS and disclosures and submit by the date stated..I assume you have not received the Claimants WS or disclosure as yet?

We could do with some help from you.

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As you are at the stage of submitting a WS and Disclosure then your defence as been accepted by MCOL...so was good enough to stop default judgment.Forget about the CCA and CPR requests as in probability he wouldn't have made any response anyway.

 

So now you need to prepare your WS and disclosures and submit by the date stated..I assume you have not received the Claimants WS or disclosure as yet?

 

Hi andy

 

No i haven't received anything from the claimaints as yet

 

Amy

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And I doubt they will comply either...at which time you can make application to strike out their claim...but in the meantime its important that you comply by the dates stated.

 

Here is a recent example of WS for a current account that I drafted...this will give you an idea of form and content....

 

IN THE COUNTY COURT AT HALIFAX CLAIM NO:

 

BETWEEN:

XXXXXXXXXXXXXXXX Claimant

 

-and-

 

XXXXXXXXXXXXXXXXX Defendant

 

WITNESS STATEMANT OF XXXXXXXXXX

 

I.XXXXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1.It is admitted that I have held a current account with Lloyds in the past. The account was opened on or around xxx xxxx 19xx and used to facilitate the payment of my income and expenditure.

 

2.It is denied that I entered into an agreement on the 5th October 1998.It is admitted that I accepted a facility/service offered by Lloyds to be able to overdraw to a limit set and reviewed by Lloyds on the balance of the above current account.

 

3.It is denied that I exhausted or exceeded the overdraft facility limit rather a residue created by Lloyds due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair Terms in Consumer Contract Regulations 1999 on this point.

 

4.It is denied that I defaulted on an “ agreement “ an Overdraft Facility is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced.

I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which Lloyds failed to comply with.

 

5. Again it is stressed that I was never informed of assignment of this debt neither by the original creditor nor the assignee. If the debt was assigned to the claimant on 24th June 2013 why do they state within their Witness Statement they allegedly served me on the 10th July 2014 (12 months after assignment)?.

For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136).

Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned.

The assignment must be absolute.

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

 

Again it is denied any Notice of Assignment was ever received.

 

6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14

 

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

Show and evidence service of Notice served under Sections 76(1) and 98(1)

 

And to show how the claimant has legal right either under statute or equity to issue a claim in their name

Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

 

Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

 

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

It is totally unacceptable to suggest as per the Witness Statement point 12 that documents and T&Cs/statements were sent throughout duration of the account and purely an attempt to avoid its responsibilities in proving its claim or rather they do not hold any proof and not expected to validate their claim legally.

 

7. The claimant’s points at 13 & 14 are either an attempt to mislead the court or a lack of understanding of the CCA1974 legislation. You cannot request by way of a section 77/78/79 for copies of an Overdraft Facility arrangement, hence none was made. The claimant is still liable to disclose a copy of the facility arrangement confirmation and Terms and Conditions from that date pursuant to section 61B of the Consumer Credit Act.

 

My defence stated that the original Creditor failed to serve Notice under Sections 76(1) and 98(1) and are therefore prevented from enforcing or requesting any relief.

 

8. Point 16 of the Claimants Witness Statement is irrelevant and nonsensical

 

9. Point 17 again is irrelevant, neither the claimant nor its Witness are in a position to assume that anything has been previously provided, nor is it their concern. They the claimant in this matter and will have to disclose all documentation relied upon as the basis of their claim at trial.

As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

 

10. Point 18, it is the witness’s opinion only that my defense is not valid nor has prospect of success. It is in my opinion that the claimants claim is fanciful contains no proof, and uncorroborated. Totally unaware of the details of debt they have purchased and expecting judgment/relief be granted, relying on the court to base its decision on assumption and basis of probabilities.

 

It is therefore submitted that the claimants be ordered by the court to quantify ,verify, substantiate and disclose all evidence relied upon and should the claimant fail to that their claim be struck out under CPR 3.4 as having no basis.

 

I believe that the facts stated in this Witness Statement are true.

 

Signed ……………….

 

Dated on the day ………………..2015

 

Obviously the Claimant has complied in this case and therefore we had the WS to guide and refute.

 

Regards

 

Andy

We could do with some help from you.

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If you have been directed by Court order to file and serve your witness statement 2 weeks before the hearing/trial, what has the Court ordered the Claimant to do?

 

 

ibberty bibberty

 

The same normally IB

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True.

 

 

Usual directions are for exchange of witness statements (“WS”) simultaneously.

 

 

However, disclosure takes place before exchange of WS and the original poster has said that he/she has not received anything from the Claimant and that is the reason why I asked about what directions have been given.

 

 

ibberty bibberty

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Thanks so much Andy only just saw this reply

 

I'll give this a proper read through and get an idea for mine. Also will double check my documents to check the simultaneously handing over of the WS pretty sure it just said to send it to both the court and the claimant within the time period

 

Thanks again

Amy

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Hi shamrocker here is the document I received from the court, just typed it up instead...

 

 

 

 

District Judge ****** has considered the statements of case and questionnaires filed and allocated the claim to the small claims track.

 

 

The hearing of the claim will take place at 10:00 AM on the 16 October 2015 at the county court at *******..... and should take no longer than 1 Hour.

 

 

A hearing fee of £25.00 is payable by 2 October 2015 by the claimant unless you make an application of fee concession. Failure to pay the fee will result in the hearing being removed from the list.

 

 

The court must be informed immediately if the case is settled by agreement before the hearing date.

 

 

The hearing fee will be refunded in full if the court receives notice in writing at least 7 days before the hearing date, that the case is settled or discontinued.

 

 

Mediation

Having considered the papers the court believes that your case is suitable for mediation...... (information about contacting the mediation team. this has already been done but as Carter had not provided me with any info they said it was unsuitable.)

 

 

IMPORTANT

READ THIS CAREFULLY NOW!

FAILURE TO DO SO AND TO COMPLY WITH THE INSTRUCTIONS WILL LEAD TO YOUR CLAIM OR DEFENCE BEING STRUCK OUT

Preperation for the hearing

 

1. The parties MUST provide to the court and to the other party or parties (your opponents) not later than 14 days before the hearing the following:

 

 

a) Witness Statements. these are written statements made by you, and anyone else you wish to give information to the court, which contains all the information you wish the court to take into consideration in deciding your case. Witness Statements must:

 

 

* Be typed wherever possible;

* Start with the name of the case and the claim number;

* State the full name and address of the witness

* Set out the witness's evidence clearly in numbered paragraphs on numbered pages

* End with this paragraph "I believe that the facts stated in this witness statement are true." (or words to that effect) ; and

* Be signed by the witness and dated

 

 

b) Copies of all documents you wish the court to see in deciding your case.

 

 

c) If you are not intending to place any information before the court, a letter to the other party, or parties, and the court stating this fact.

 

 

2. WARNING: If you do not do as required by paragraph 1 above, the court will strike out your statement of case and you will not be able to continue with your claim or defence of the claim. this means that if you are the claimant and fail to do as ordered, your case will be struck out. If you are the defendant and fail to do as ordered, your defence will be struck out and judgment will be given in favour of the claimant for the amount claimed, interest and costs or for damages or such other remedy to be determined.

 

 

That's all the information the court provided

 

 

Thanks

 

 

Amy

Edited by Andyorch
Hi lighted important parts
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Hi lighted the 2 main points to follow within the directions above.

 

Regards

 

Andy

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Hi lighted the 2 main points to follow within the directions above.

 

Regards

 

Andy

 

 

 

Thanks Andy

 

 

So you think its best just to get my statement and documents sent to the court and Carter now and not wait to receive anything from him?

 

 

Also in my statement if I go from the example you kindly posted and adapt it to my case should I still use the requests for credit agreement? even though I now know if it was an overdraft debt they would not be appropriate?

 

 

Thank you again!

 

 

Amy

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I normally advocate complying as near as possible to the date stipulated by the court within the directions.....whether he complies before or after is largely irrelevant...the main point is that as a party you can not be sanction for late or none compliance.

 

I have seen plenty of Witness statements by this Solicitor over the years and the contents and style dont vary or differ very much.

 

With regards to the contents and credit agreement...you have to adapt it to an Overdraft credit facility ...overdrafts are covered by section 61B of The Consumer Credit Act 1974.

 

Like wise overdrafts are not subject to a default notice...but are recalled/terminated on demand by way of Notice served under Sections 76(1) and 98(1) of the CCA1974

 

Regards

 

Andy

We could do with some help from you.

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So, by the 28 September 2015, the Court has ordered exchange of WS and disclosure of all documents each party relies on.

 

The Court has said that the case is suitable for mediation but the Claimant has said he considers this to be not suitable, his reasons for this are unreasonable.

 

Although the deadline is 17 days away, has the Claimant made any contact with you as regards the Court's order?

 

ibberty bibberty

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