Lowell claim form old Shop Direct debt ***Claim Dismissed***

[Bobraf]

Thank you.

 

Sorry for all the questions, this court thing is all new to me and I'm just trying to check I'm right.. I'm thinking I will go to court, if I have to pay I will and I can't see what I can gain by an early agreement.. my arguments, briefly, as I see them, are..

 

1) no default notice, although they say they've sent one there is a reference to one on one of their forms but no default notice sent or copy to me. I don't believe they sent one at all but as they've not complied with my request to send a copy I can't verify the legitimacy

 

2) they've not complied fully with my Cca requests , which means that the debt's not enforceable

 

3) the notice of assignment isn't legit and was never sent to me, but I'm not sure

 

4) I still genuinely don't recognise the account, things bought or balance but I don't know how to prove it's not mine. I did have a very account

 

5) charges applied to the account, I've asked for info on them and they've sent nothing at all, just the amount is on the statement.

 

6)The statement amounts don't add up

 

Are these/any of these enough to argue in court?

[AndyOrch]

Reasonable points to raise before parting with any payment...If I pushed my invoice through your door for a debt you didn't recall Im sure you would question me before paying

[Bobraf]

Also, and sorry for all the questions here, I've read loads and loads of the threads in here and different cases and I'd gathered that Lowell sent their witness statements as late as physically possible, but on the one you've just linked he could word his ws around theirs. Mine needs to be in Monday and I haven't received theirs yet so I'll have to do it without sight of theirs, will that be ok?

 

What do I do if I don't receive their ws? I still think they'll send it to my old address even though I can prove I've given my new one, but if I don't have a copy of theirs I'll be going into court blind so to speak

[AndyOrch]

Also, and sorry for all the questions here, I've read loads and loads of the threads in here and different cases and I'd gathered that Lowell sent their witness statements as late as physically possible, but on the one you've just linked he could word his ws around theirs. Mine needs to be in Monday and I haven't received theirs yet so I'll have to do it without sight of theirs, will that be ok? No option you will have to

What do I do if I don't receive their ws? I still think they'll send it to my old address even though I can prove I've given my new one, but if I don't have a copy of theirs I'll be going into court blind so to speak

 

Is it still possible to check your previous address for post...did you not do a redirect?

 

Send them another email today informing them of your new address and type along the bottom...copy retained for Court Bundle.

[Bobraf]

I didn't do a redirect, I tried but it got complicated because of royal mails required documents, I'm still trying but it's not in place yet, and the old house is empty so we can't go and ask. I will email again and put that in thank you.

 

Can I post up my ws for you to have a look at please? It's not quite finished yet

[AndyOrch]

Certainly...

[Bobraf]

Sorry this is a little later than planned, an emergency came up at home that I had to deal with. If you could possible have a look over this for me please, its my final attempt for now but Im pretty certain its not good enough. I need to file this by Monday so I will take my copies in person to court, and both email a copy to Lowell and send an additional hard copy.

The exhibits i've referred to at present aren't right, in fact they're all labelled 1, i was planning on finalising that bit as soon as id finalised my witness statement.

 

WITNESS STATEMENT OF ************

 

I ****************, being the Defendant in this case will state as follows;

 

I make this witness Statement in support of my defence in this claim and rely on the exhibits attached.

 

1. I understand that the claimant is an Assignee, a buyer of defunct or bad debts who are based in Leeds, which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income

 

2. On the 24th January 2017 I received a claims form from the County Court Business Centre, Northampton, for the amount of £402.51. The claimant contends that the claim is for the sum of £293.99 in respect of monies owing under and alleged agreement with the account reference 92776119 pursuant to the Consumer Credit Act 1974 (CCA). The particulars of claim fail to state when the alleged agreement was entered into.

 

3. It is admitted that I have held a catalogue account a number of years ago with Very, which I now know to be owned by Shop Direct. However I do not recognise the account number or the amounts stated on the particulars of Claim.

 

4. Consequently, on the 29th January 2017 [EX1], in response to the particulars of claim served upon me, for more clarity on the matter I made a formal written request to the claimant under section 78 of the Consumer Credit Act, and paid the £1 fee via postal order for a copy of the credit agreement and statement of account. This was sent via recorded delivery and receipt of which was acknowledged in [EX 1]

 

5. I also made a formal written request by way of a CPR 31.14 to the claimant’s solicitor on 29th January 2017 [EX1]. This was sent via recorded delivery and receipt of which was acknowledge in [EX1] I enquired for information including:

 

a. The agreement / Contract of the alleged debt

b. The notice of assignment

c. The default warning letter

d. The default notice

e. The statement of account including disclosure relating to the accrue of charges and interest

 

6. On or around the 9th February 2017 I received a letter from Lowell Solicitor. [EX1]. This letter was a generic template, responding and referring largely to matters that I had never requested or mentioned. The letter also stated that they did not have a copy of either the agreement or the default notice that was sent, and that they had requested copies from the original creditor.

 

7. The letter stated that the account referred to a Woolworths account. I have never had a Woolworths account that I am aware of, and propose that there has been an error from the Claimant and my details with my Very account have become confused with another account not belonging to me.

 

8. The same letter also stated that a copy of the Notice of Assignment was enclosed, I had never received a Notice of Assignment from the claimants at all and was totally unaware of the account’s existence prior to receiving the Claim form.

 

9. For there to be a valid assignment of a legal debt there must be compliance with s136(1) of the Law of Property Act 1925. This states that in order for an assignment to be effectual in law there needs to be:

a. Express notice in writing; and

b. That notice needs to be ‘given’

 

10. The copy Notice of Assignment that was enclosed within the letter dated 3rd February 2017 [EX1] is not compliant with S136 (1) of the Law of Property Act 1925 as it was never given to or received by the defendant. Although I cannot prove that I did not receive the notice of assignment, the dates on the notice of assignment are different to the dates given by the claimant on the particulars of claim as well as a screenshot of a statement from [EX2]. As it can be assumed that these letters are largely computer generated and recorded, it can be taken that the copy Notice of Assignment provided to the defendant in [EX1] was included in a bid to mislead the Court and was in fact created at a much later date. Additionally and in support of this, the Notice of Assignment received along with the letter dated 3rd February has no letter heading and no significant footing relating to the claimants.

 

11. On or around 28th March 2017 I received a further letter from Lowell Solicitors dated 22nd March. This letter states that it encloses copies of the Credit Agreement, Default Notice and Statement.[EX1]

 

12. Within the claimant’s particulars of claim the claimant pleads that the defendant failed to make the required payments and a default notice was served and not complied with. Section 87(1) CCA states that a default notice in the prescribed form must be served prior to any further action being taken. Consequently I repeat paragraph 5, whereby I stated that a copy of the default notice and of the default warning letter was requested by way of a CPR 31.14 request.

 

13. Despite the fact the letter dated 22nd March 2017 claimed to enclose a copy of just the default notice, no default notice was sent. It is therefore contended that the original creditor failed to serve a valid Default Notice pursuant to section 87(1). Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement.

 

Given that Lowell are in fact a Debt Collection Agency they cannot be considered to be the creditor or owner of the regulated agreement.

 

14. As has previously been stated I am totally unaware of the existence of this account, and subsequently upon receipt of the claim form I requested further information for clarification and substantiation of said account. The statement of account received is vague and it is averred that much of it is difficult to read. It is also littered with anomalies and errors:

a. It states 10 items were ordered, yet lists only 9

b. The total value of the goods ordered is significantly less that the value of the goods.

c. 2 of the goods ordered but seemingly charged for have no date, instead simply having question marks against them.

d. The dates on the statement do not match up with other dates in other documentation provided by the claimants.

Furthermore, the defendant does not recognise these items listed and purports that they were not ordered or delivered.

 

15. Additionally, within my CPR 31.14 request I requested itemised details of the interest that has been charged along with details of any charges that have been added to the account. I have received no details of either charges or interest added whatsoever, simply a total can be seen on the brief statement. Without an itemised list of charges it is impossible for me to know or understand the reason for these charges or for me to investigate the legality of the said charges.

 

16. Consequently the claimant has not been able to clarify by way of an itemised list how the alleged balance was derived and the legality of the charges applied to the said balance. The claimant has not in any way proven the existence of the alleged debt.

 

17. Notwithstanding the above the claimant remains in breach of the 12 day response period under Section 78.6, therefore the claimant is unable to request any relief until such time they can comply.

 

18. It is therefore contended that there is no outstanding balance, nor has the claimant been able to produce any valid documentation to prove otherwise and I therefore respectfully request that the court dismiss this claim and award costs it feel fit in defending this matter.

 

STATEMENT OF TRUTH

 

I believe that the facts stated I this witness statement are true

[Bobraf]

Could anyone have a quick read and offer any advice on this one for me please? I need to finalise it all tonight and any advice would me much appreciated!

[Old Cogger]

lowells are debt purchasers - they buy then own a debt, they are not just debt collectors, you nmust of has a notice of assignment

[Bobraf]

No, I genuinely had received no post from them whatsoever before this claim.

[dx100uk]

because it was all sent to an old address you'd not updated your creditors of a move

[AndyOrch]

Fine Bob...just remove the following line....

 

Given that Lowell are in fact a debt collection Agency they cannot be considered to be the creditor or owner of the regulated agreement.

 

Good effort...

 

Andy

[Bobraf]

Thank you for that.

I removed the line and got everything submitted in time.

 

 

now I've not received anything from Lowell.

It was due 2 days ago.

I have proof that Lowell received my new address and I included that in my witness statement.

 

I'm going to phone the court today to ask if they've received lowells ws, but what can I do now?

Either Lowell haven't sent it at all or they have sent it but to my old address.

What can I do in either situation?

 

And dx I had updated my address with them.

I only moved a couple of weeks ago, and told them and have proof.

 

 

I also received an automated email response from both Lowell and Lowell solicitors.

I'd just cc'd them into the same email I sent the court.

we'd been at the old address for years..

[AndyOrch]

Check with the court to see if they filed it and not served you..if not filed it at all then you can request that a note be put on the file that the claimant has failed to comply with directions and ask that sanctions be imposed.

 

As we get nearer to the hearing date and they still do not file or serve you you can submit a supplemental witness statement to request that the claimant be barred from relying on any written evidence...and sanctioned.

The court will decide what is fit most probably strike out the claim.

 

Andy

[Bobraf]

Thank you.

 

I've phoned the court and they said Lowell filed with them on Monday and that their covering letter said they'd sent to us too

they were very blasé about it, just that the covering letter said they'd sent it so they have.

 

 

This is why I put proof I told them of my address change in my witness statement because I assume they've sent it to my old address,

but court didn't seem bothered,

just said I'd probably receive it in the next few days

but that doesn't seem very fair and seems to belittle the directions.

 

 

Is there anything I can do now if Lowell say they've sent it when they haven't?

[AndyOrch]

All you can do is allow a few days...if you tell the court they didn't serve it on you..they cant prove they did..and you have no need to lie about it...you just get it on record they failed to serve you.

[Bobraf]

I've just reread your other comment, I think I'd misread it before, sorry..

 

at what point do I send the supplementary ws?

Assuming they don't send to me..

 

 

do I need to do anything else?

 

 

And what if the court won't impose sanctions?

That means I'll be going in blind so to speak..

[AndyOrch]

A minimum of 3 days before the hearing.....informing them that the claimant has failed to comply with directions.

 

The CPR is very clear and I am sure most District Judges can follow it......

 

Power to strike out a statement of case

CPR 3.4

 

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out(GL) a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

© that there has been a failure to comply with a rule, practice direction or court order.

 

The Law should not allow any party to be ambushed with evidence not previously served.

 

And in the meantime send an email to the claimants solicitor requesting when you expect to receive their disclosures and Statement to your current address...then you can attach that to your SWS

[Bobraf]

I need to write this supplementary ws.

 

 

Lowell still haven't served me their ws and have ignored the email I sent, although I do have their automated response.

 

 

I'd also phoned them to check that they use that email for documents etc and was told definitely yes.

I'd phoned them to get the email address in the first place too.

But I'd not ever given my details for these calls,

I didn't want them accusing me of saying anything I hadn't.

 

they're now 7 days late serving me anything and there's 7 days left til court.

 

 

The problem is im going away for a couple of days tomorrow, I need to get my sws prepared today.

 

 

I have someone who can post it for me anytime I want and I have someone who'll be checking on post at home.

is there any advice anyone can give about this sws?

I've been searching but I'm struggling to find info on this one.

 

Also, when should it be sent?

[Old Cogger]

what the = ringing them to help them right a problem they have/ stay off the phone = they have a problem which could backfire on you, you would normally ask the court to issue instruction and give them a deadline later down the line, they must think we got one here,

 

 

ask on here before rushing off to get advice whether to do this that the other

[Bobraf]

I didn't give my name or any details at all.

 

 

I just phoned asking them for the email address to send documents then phoned again asking if it was the right one and checked.

 

 

I was really careful to not even mention it was for court, and like I say no name or personal details at all

[Old Cogger]

all document send Recorded Delivery and keep receipts on file attached to your copy of request/letters

[Bobraf]

Can anyone offer any urgent advice please?

 

I'm in court tomorrow morning.

 

I sent in a supplementary witness statement last Monday pretty much saying what Andy said above and requesting that the the claim be struck out due to none compliance of judges orders.

Sent recorded delivery so arrived Tuesday.

 

I included email evidence that I'd given my address change and that I'd contacted Lowell solicitors telling them I'd not received their disclosure and asking them to send asap.

 

Friday I phoned the court who said it'd been received and would be discussed before the hearing.

 

On Saturday I received their ws finally in the post, post dated Friday.

 

firstly what is this pre meeting thing?

Am I just asking the judge to either strike out the claim or impose sanctions?

If so how do the sanctions work?

I know it's last minute but any help would be appreciated!

[Guest]

when you get there at court the other side might approach you (if they turn up) to discuss settling, up to you. that would be before going into any hearing.

 

if the hearing goes ahead,

it looks like from what say about your supplemental asking for strike/sanctions,

that the J will then consider that before you both before formally starting the trial hearing.

things will then go whichever way the J then decides.

 

this is small claims allocated, and not a summary judgment hearing?,

so costs should be limited as per small claims costs rules.

 

if you lose, dispute any statutory interest, and any over 1 year as unreasonable

am not familiar with your circumstances, so this is in general.

[Guest]

how did you get on then bobraf