Lowell/BW legal claimform - old o2 mobile 'debt'

[Multay]

Hi,

 

On 13.12.16 I received notice from Northampton court that bw legal had issued a claim for an unidentified o2 debt.

 

The particulars of claim state that is is for a mobile phone agreement regulated under the consumer credit act 1974 and gives an agreement number.

I have acknowledged on line with my intention to defend in full.

 

I sent a cca request to Lowell ( based on the poc) and a cpr 31.14 to bw legal by recorded delivery.

 

Lowell have not responded and bw legal sent me a letter saying the debt is a service agreement not regulated under cca 1974 , which is fine but that's not what they say on the poc...

They also confirmed they have no documentation in their possession, which is naughty as I understand it as they are required to have documents before issuing the claim.

So I have written a defence based on the above but could really do with someone having a look at it before I file it.

 

Am I right in thinking I can submit the defence by email? I don't think I have much longer before I need to submit.

 

Sorry for the long post but your help would be greatly appreciated. Let me know if it's best to post the defence on cag or if I'm better to pm it to one of you guys?

 

Thanks again.

[dx100uk]

Can you fill this out please

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2016**

[Multay]

Hi Dx,

 

Name of the Claimant ? Lowell Portfolio 1 ltd

 

Date of issue – 13.12.16

 

What is the claim for –

 

1.The claimants claim is for the sum of £634.78 being monies due from the defendant to the claimant under a mobile telecoms agreement regulated by the consumer credit act 1974 between the defendant and Telefonica UK limited under account reference xxxxx and assigned to the claimant on xxxxxx notice of which has been given to the defendant.

2.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 etc. etc."

What is the value of the claim? £634.78

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Mobile Phone Account

 

When did you enter into the original agreement before or after 2007? I think it was well before 2007 but I'm not sure to be honest.

 

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? No

 

Did you receive a Default Notice from the original creditor? Not sure but don't remember one.

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

Why did you cease payments? I'm not sure to be honest but I've had some financial issues over the years.

 

What was the date of your last payment? I don't know.

 

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? No

 

What you need to do now.

 

Answer the questions above

 

If you have not already done so – send a CCA Request to the claimant for a copy of your agreement

(except for Overdraft/ Mobile/Telephone accounts) - Done based on their POC.

 

Send a CPR31.14 request to the solicitor named on the claim form for copies of documents mentioned/implied within the claim form. There are two different versions - one for Loans/Credit cards the other for Current accounts - done.

 

Thanks M.

[dx100uk]

have you made any payments to o2 within 6yrs

[Multay]

have you made any payments to o2 within 6yrs

 

 

Hi , yes... it's certainly not statute barred.

 

As I said, I have written a defence but I don't really want to submit it until someone who knows what they are doing has a look at it.

 

I'm basically defending based on incorrect poc and a complete lack of any paperwork. They have sent and have nothing to support their claim. They haven't sent me a single thing. .

 

Thanks.

M

[dx100uk]

Then the std holding defence

On here yes?

 

Use this one

http://www.consumeractiongroup.co.uk/forum/showthread.php?472113-Lowell-lowell-Solicitors-claimform-old-Vodafone-mobile-debt&p=4982399#post4982399

[fkofilee]

Wait they have done it again.... !

When did you have this contract with O2 and this is important...

[Multay]

Wait they have done it again.... !

When did you have this contract with O2 and this is important...

 

I'm really not sure when I took it out but it was quite a few years ago... Maybe over 10 years...

 

Then the std holding defence

On here yes?

 

I've used a slightly different one I think... shall I post up what I've written?

[fkofilee]

When did this default? IT could be quite interesting this one...

[Multay]

Hi, I don't know when/if it was defaulted by it was assigned to Lowell on 29/4/2016 apparently.

 

Here's my defence so far:

{removed - dx]

Please let me know what you think.

Thanks M.

[dx100uk]

nope please don't use that.

[Multay]

Hi, OK....

 

 

Soooo.... just use the one on that other link you pointed me to?

 

Isn't it worth pointing out that

a) the POC are either wrong or that they are lying in their response to me because they can't get a copy of the CCA? and

 

 

b) they have issued a claim without any paperwork at all, which they have admitted to me in writing?

 

 

Thanks.

[fkofilee]

http://www.consumeractiongroup.co.uk/forum/showthread.php?472800-Mobile-Phone-Contracts-amp-Consumer-Credit-Agreements(1-Viewing)-nbsp

[dx100uk]

probably not relevant for a mobile account of this age.

 

 

they are not lying in the poc

 

 

they don't need paperwork before issuance of a claim

[Multay]

Hi Thanks for the link.

 

Essentially what I'm asking is their POC are incorrect,

which they have confirmed to me in writing.

 

So, how can they continue if they cannot provide proof of their POC?

Surely the claim should be dismissed on this basis alone?

Unless they apply to change the POC?

 

Particulars of Claim

 

1.The claimants claim is for the sum of £634.78 being monies due from the defendant to the claimant under a mobile telecoms agreement regulated by the consumer credit act 1974 between the defendant and Telefonica UK limited under account reference xxxxx and assigned to the claimant on xxxxxx notice of which has been given to the defendant.

 

2.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 etc. etc."

 

here is the new defence....

 

1.Paragraph 1 is noted.I have, in the past, had financial dealings with Telefonica, however I do not recall the exact details, nor do I recall any outstanding balance.

 

I have requested the claimant verify the exact details of this claim by way of a CPR 31.14. The claimant has refused to provide me with a copy of the agreement, stating he is not able to do so as the agreement isn’t regulated under CCA 1974. This directly contradicts the Claimants Particulars of Claim.

 

2. I do not recall any breach and I have never received the stated Default Notice.

The Claimant has stated, by letter, that he is unable to provide a copy of the Default Notice.

 

3.I do not recall having received a Notice of Assignment, as stated by the Claimant and despite my request for a copy of said document, under CPR 31.14, the Claimant has failed to provide me with such to date.

 

4. The Claimant has stated that he has made several requests for repayment, yet I do not acknowledge any debt to the Claimant.

 

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

 

Therefore the Claimant is to provide strict proof to:

 

(a) show how the Defendant has entered into an Agreement/ Contract; 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;

 

6. 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.

 

7. Subject to the above, should the alleged amount claimed include an early termination charge(s) amounting to the total balance of the remaining contract, OFCOM guidance clearly states that any Early Termination Charge, that is made up of the entire balance of the remaining contract, is unlikely to be fair, as it fails to take into account the fact that the provider no longer has to provide and pay for their service.

 

8. 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. "

 

I can't say they hadn't contacted me before going to court because they did by email but (as with all DCA's_) I ignored them.

Thanks M.

 

Sorry for being slow (maybe I'm completely misunderstanding)

but by their own admission the POC are wrong.

 

They have said to me the agreement isn't under CCA 1974 so either they are lying in their letter and it is regulated under CCA 1974 in which case they are obliged to send me the agreement and can't or it isn't regulated under CCA 1974 so the POC are wrong and they cannot provide paperwork to support the POC as it doesn't exist - There is no CCA.

 

Surely if the POC are wrong that alone would prejudice their case unless they apply to modify them?

 

Thanks, M

[AndyOrch]

Defence slightly amended.....try not to dwell on the point that their particulars contradict their actions...its irrelevant at this stage...and disclosure follows the defence...so you can pick them up again on that point later in the process...should it get to that stage..

 

Regards

 

Andy

[Multay]

OK thanks Andy.

.. I'll put the defence into the required format and attempt to post by MCOL.

 

 

Should I wait a little or do it now?

The claim was issued on 13.12.16 so I think I'm ok till next week.

 

 

 

I'm probably being slow but I can't tell what's been amended.....

 

Thanks. M.

[AndyOrch]

Mainly your point 1...just reworded

[Multay]

Thanks Andy, I'm going to post the above defence now via the website. Should I also send it by email? If so, do you know the address?

 

 

I'm not sure what the next stage after this will be? Could any of you guys tell me what will happen next?

 

 

Thanks again for your help.

M.

[AndyOrch]

No just submit via MCOL..the court will inform you whats next in their acknowledgement.

[dx100uk]

No rush to file yet via mcol website

[Multay]

Hi, I can't get onto MCOL to do anything. Is there an email address I can use... I think I've got some time but I'd like to get it in today.

 

 

Thanks.

[dx100uk]

MCOL is only one way of responding to a claim.

.

If you are having problems logging in, or would prefer not to use MCOL,

you can fax, email or post your response to the Court instead.

If you send your response by e mail

please send it to [email protected] and ensure you quote “Claim response” and quote the claim number in the subject field.

.

[Multay]

Thanks ever so much DX...

[Multay]

Hi Guys,

 

 

Just to let you know that I have submitted my defence by email now. Will they confirm recipt of it?

 

 

Thanks,

M