lowell PAPLOC now Claimform - Old Cap1 Debt notice still applicable?

[Badger91]

Hi, have received letter from Lowell to say that they are going to request the NOA and DN from capital one.

also how should submit my defence can i do it online or does it have to be by the form supplied with the claim form. 

Should I say I am defending all the particulars because I believe the debt not to be enforceable as I am yet to receive the following NOA + DN that I’ve requested in the CPR,

which were also requested in response to the Paploc letter,

which was ignored and therefore I do not accept liability and want to make a counter claim against Lowell’s, solicitors fees and the court fees,

and the county courts interest, as the if they had provided the requested documents when I replied to the paploc letter, before submitting a claim to the county court,

I would have paid the debt minus the bank charges, and that if they manage to present the NOA + DN  and the debt is in fact enforceable 

I want the bank charges taken off the balance, as I believe they were overpriced/ unfair.

I have got 7 working days to get the defence back to the CC. 

 

[dx100uk]

why are you returning a defence to the OC?

you file it in MCOL website by day 33

as i said before

1000's of lowell claimform threads in this very same forum...you MUST get reading up a few 10's or else you will lose this .

you made several silly schoolboy mistakes already all of which you would not have made or almost made had you been reading up in the times between actions.

you continue do that with this court claim and they will crush you.

pop it up here 1st

[Badger91]

I was updating you that the DCA has said that they were going to request the documents from OC.

I didn’t not say that I was submitting the defence to the OC.
 

I then went on to ask for advice on submitting a defence, I asked could I submit the defence online rather than by the form provided attached to the Claim form

 

i asked for confirmation as to what to say for a defence, I asked if for your opinion if I was correct in what to say, I was expecting you to either say yes that’s fine or tell me what’s wrong.

 

But

 

Please tell me where you said that I needed to go back in to MCOL , after exiting and come back to defend online on MCOL by day 33.

 

retitled and moved to legals

 

please complete this:

 

pop up on the MCOL website detailed on the claimform.
[if mcol is not working return after the w/end or the next day if week time]
.
 register as an individual on the Gov't Gateway Site
 note down your details inc the long gateway number given, you might need it later.
 then log in to the MCOL Website
.
 select respond to a claim and select the start AOS box.
.
 then using the details required from the claimform
.
 defend all
 leave jurisdiction unticked
 you DO NOT file a defence at this time
[BUT you MUST file a defence regardless by day 33 ]
click thru to the end
confirm and exit MCOL.
...

get a CPR  31:14  request running to the solicitors [if one is not listed send to the claimant]
...
.

https://www.consumeractiongroup.co.uk/topic/332546-legal-cpr-3114-request-request-for-information-when-a-claim-has-been-issued/

.

on BOTH type your name ONLY
Do Not sign anything
.
you DO NOT await the return of ANY paperwork 
you MUST file a defence regardless by day 33 from the date on the claimform [1 in the count]

..............

because you didnt so how am I supposed to know, I’ve read claim form and seen that the defence section, it is to be sent by post, so I came on to ask if I could do it online, what I meant was on the MCOL site, I didn’t expect such an insensitive response, I thought yours suppose to help and advise, but if you don’t give clear advise am I supposed to guess ? 

Edited August 27, 2021 by Badger91
Mistake

[dx100uk]

already answered you

[Badger91]

Yeah you have now but you didn’t tell me previously like you just insinuated,

before you go off on one at me you beat check what you actually said first,

because I didn’t know I could do it through MCOL as you are only just telling me now,

go check your previous advice you didn’t say that, you told me to respond to a claim and tell the court I intended to dispute,

you didn’t say I could submit the defence through the same site, this is why I was asking you for clarification. 

Now you said that I should pop up my defence here before I do anything, I’m pretty sure that’s what I was trying to do.....

[dx100uk]

defence is filed online the same way as you filed your AOS

you don't file a defence until day 33 

the forms are for ref purposes only if you use MCOL.

you don't counter claim no.

your defence will be our std no paperwork/holding defence 

something like this

Particulars of Claim

 (1)The Defendant entered into a consumer credit Act 1974 regulated agreement with (original Creditor) under account reference xxxxxxxxxx

 (2)The Defendant failed to maintain the required payments and a default notice was served and not complied with.

 (3) The Agreement was later assigned to the Claimant on (date) and notice was given to the Defendant.

 (4)Despite repeated requests for payment, the sum of £xxxxx remains due and outstanding.

 

 #####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.

 2. Paragraph 1 is noted. I have in the past had financial dealings with (insert original Creditor) but do not recognise this specific account number or recollect any outstanding debt and have therefore requested clarification by way of a CPR 31.14 and section 78 request..

 3. Paragraph 2 is denied I have not been served with a Default Notice pursuant to the consumer credit Act 1974.

 4. Paragraph 3 is denied. I am unaware of any legal assignment or Notice of Assignment pursuant to the Law and Property Act 1925 Section 136(1)

 5. On receipt of the claim form, the Defendant sent a request by way of a section 78 pursuant to the Consumer Credit Act 1974, for a copy of the agreement, the Claimant has yet to comply and remains in default of said request. 

 6. A further request made via CPR 31.14 to the claimants solicitor, requesting disclosure of documents on which the Claimant is basing their claim. The claimant has not complied, but has stated a general extension of time to retrieve the documents, to date nothing has been received.

 7. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 a) show how the Defendant has entered into an agreement and;
 b) show how the Defendant has reached the amount claimed for and;
 c) show the nature of the breach and evidence by way of a Default Notice pursuant to sec 88 CCA1974
 d) show how the Claimant has the legal right, either under statute or equity to issue a claim

 8. As per Civil Procedure 16.5 it is expected that the claimants prove the allegation that the money is owed

 9. 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

 10. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

or by reading a few claimform card  threads

 

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CSE.GOOGLE.COM

click above

[Badger91]

Ok thank you for your help,

I Have use the example you posted but with a few adjustments to the particulars of claim and also made some small changes to the defence,

if you could just have a quick look and let me know if its ok to submit on the 6th,

can I also mention the bank charges that are to come off in the eventuality that Lowell manage to provide the requested documents or would I leave this until a later stage. 

here is the defence for you to check.

Particulars of claim

(1) The Defendant entered into a consumer credit act 1974 regulated agreement with Capital One under account reference (xxxxxxxxxxxxxxxx).

(2) The Defendant failed to maintain the required payments and a default notice was served under s.87(1) of the Consumer Credit Act 1974, which was not complied with.

(3) The Agreement was later assigned to the Claimant on 30/04/20, and notice was given to the Defendant.

(4) Despite repeated requests for payment, the sum of £386.69 remains due and outstanding.

(5) The Claim includes Statutory interest under S.69 of the County Court Act 1984 at a rate of 8% per annum from the date of assignment to the date of issue of these proceedings in the sum of £30.94.

(6) The Claimant claims the sum of £417.63.

Defence

(1) 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.

(2) Paragraph 1 is noted. I have in the past had financial dealings with Capital One but do not recognise this specific account number or recollect any outstanding debt and have therefore requested clarification by way of a CPR 31.14 and section 78 request.

(3) Paragraph 2 is noted. Although I have not retained a copy of it and I do not recall the precise details of the Default Notice I have requested a further copy from the claimant which they have yet to provide.

(4) Paragraph 3 is noted.  Although I have not retained a copy of it and I do not recall the precise details of the Notice of Assignment pursuant to the Law and Property Act 1925 Section 136(1) and therefore requested a further copy from the claimant which they have yet to provide.

(5) Paragraph 4 is denied, as they claimant has yet to fully comply.

(6) On receipt of the claim form, the Defendant sent a request by way of a section 78 pursuant to the Consumer Credit Act 1974, for a copy of the agreement, the Claimant has complied and proved a copy of the alleged agreement.

(7) A further request made by via CPR 31.14 to the Claimants solicitor, requesting disclosure of documents on which the Claimant is basing their claim. The Claimant has not complied, but has stated a general extension of time to retrieve the documents, to date nothing has been received.

(8) It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

(A) Show how the Defendant has entered into an agreement and:

(B) Show how the Defendant has reached the amount claimed for and:

(C) Show the nature of the breach and evidence by way of a Default Notice Pursuant to section 88 of the Consumer Credit Act 1974 and:

(D) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(9) as per Civil Procedure 16.5 it is expected that the claimants prove the allegation that the money is owed.

(10) On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has a right to lay claim due to contraventions of section 82A of the Consumer Credit Act 1974.

(11)  By reasons of the facts and matters set out above, it is denied that the Claimant at this time is entitled to the relief claimed or any relief.

[dx100uk]

well done badger

 

your defence is due by 4pm monday via MCOL.

i'm sure @Andyorch will pop in before then to finalise 

 

dx

 

[AndyOrch]

Earlier in your thread you stated they did send the PAP pack...but they never complied with your requests/or before issuing the claim ?

You also stated you did receive a Default Notice ?

[Badger91]

Hi Andy,

 

I think I might have been on about capital one, they had sent me a default notice in the sars request, but to date Lowell has not, Ive requested it, after receiving the Paploc letter, with the consumer action reply form, and the CPR 31:14, where abouts in the thread are you looking at, what page is it on, I’ll have a look, maybe I didn’t explain clearly, but I’ve definitely not received a default notice from Lowell.

[AndyOrch]

Assignees cant issue Default Notices...only the original creditor (Capital One)

 

I'm referring to page 4 your initial responses to " You have received a court claim link *

[Badger91]

I received one in the sars request from capital one,

but when requested from Lowell they failed to respond and instead sent a copy of the credit agreement again.

I know that capital one can only issue a default notice, but Lowell didn’t provide it at any point when it was asked for,

they also didn’t provide proof that the debt was assigned,

I received nothing titled notice of assignment,

they just sent me a letter telling me it had been purchased in April 2020.

They have recently replied by letter to say that they have requested the documents from capital one. 

[AndyOrch]

Okay well I will give it a quick tweak in the morning before you submit it....so Cap 1 didnt serve a DN at the time of default but  did disclose a copy in the DSAR....if im reading your post correctly above.

 

Forget Lowell for now...but they will have to disclose it providing we redraft your response at 3. of your defence.

 

If not already uploaded can you can scan redact and upload a copy of that DN .

[Badger91]

Morning Andy,

 

No that wasn’t what I meant, I mean that I received a default at the the time of the original default, and it was provided when I requested the SAR from capital one.

 

when requesting default notice from Lowell in response to the Paploc letter using the consumer action reply letter, Lowell ignored my request for a copy of the default notice and the notice of assignment, they replied by sending me another copy of the credit agreement which was in higher quality than the previous one they had sent. 
 

When I received the claim form, I sent off the CPR 31:14 to request for copy’s of the DN + NOA, which they responded to and said that they had requested the documents from capital one. 

 

I’m not saying that capital one did not Issue one to me originally, I’m just saying when I’ve requested a copy of both documents from Lowell they haven’t been able to send me them. 
 

they have to date sent me copy’s of 

 

the CCA 

 

the transaction history including fees and interest 

 

 

nothing titled Notice of Assignment was sent to say they were assigned the debt, only received a letter when Lowell first contacted me which just said they purchased the debt on XX/XX/XX.

 

does that count as notice of assignment ? Does it have to be titled “notice of assignment” or can it be any letter where they tell me they bought the debt. 
 

 

 

 

 

[dx100uk]

No dn nor NOA in their witness statement exhibits if they dont fold bwfore then is fatal to their claim

[AndyOrch]

Okay with you.......soooo they have partially complied to the PAP. What you must understand is that particulars of claim from a DCA are past tense...what has happened with the original creditor and what they did in the past. They are not stating in the particulars that Lowell served a default notice they are speaking on behalf of CAP 1.So using post history in that Lowell have failed to serve a copy of the DN/NOA is not a defence...and to state that you have not received a copy of the DN is tantamount to perjuring yourself in court.

 

Hence the tweak to your point 3 and 4

 

Drafting a successful defence puts the onus and responsibility back on the assignee claimant...as they are now the substituted creditor.

 

The Notice of Assignment does not have to be specifically headed Notice of Assignment...as long as either the original creditor or the assignee has informed you of the assignment then that's job done...... legally.

 

Defence now amended at post # 109

 

Andy

[Badger91]

Ok thanks, I’ve just checked and Im also not sure about paragraph 6 on the defence, it’s saying that I haven’t received the copy of the agreement, but I have received it from them. 

[AndyOrch]

Quote

(6) On receipt of the claim form, the Defendant sent a request by way of a section 78 pursuant to the Consumer Credit Act 1974, for a copy of the agreement, the Claimant has yet to comply and remains in default of said request.

 

So why have you stated the opposite ? Have you uploaded a copy of the agreement here to be checked ?

[Badger91]

Yes I uploaded it twice on two occasions,

the defence is a template from a previous post, which was given as an example of the standard defence for my type of dispute,

I changed few bits to suit my claim but didnt know what to do with that part.

Should I just delete it.

All I am missing with the requested documents, they have also provided the full statement history and fees so they have shown how they got to the balance that’s owed, I was told though that there bank charges to come off. 

The first copy of the CCA was just about readable, but after scanning into the computer it was not readable on the computer,

next time I received the CCA was in response to the Paploc consumer action reply form,

Lowell ignored the request for DN+ NOA but instead sent the CCA which was in higher resolution, and I accept this is the copy of the agreement. 

[AndyOrch]

Okay I have just viewed the agreement (first copy)......its apparent that the copy is illegible...so the defence will now have to be amended again to reflect this.

 

Defence amended in post #109

 

 

[Badger91]

Yes but the most recent one I got is legible, it matches the copy received in the SAR, the one I have isn’t blurred it’s a clear copy which matches the original received in the SAR. 

[AndyOrch]

Which post number is that in ?

[Badger91]

I don’t think I uploaded it,

I just accepted that it was legit as it clearly matched capital ones original word for word,

I just told Dx that I accept that it was the genuine copy of the original and that I couldn’t argue with it.

It’s 100% readable I don’t really want to waste time uploading it. 

[AndyOrch]

Fair enough...if its an exact copy but legible...and you have checked it contains all the prescribed terms (which was impossible to check in the first copy so in effect its not been checked)...but that means your defence will now have to be altered again and as it stands ......there is no defence to be honest unless a judge orders that they disclose further copies of the DN and NOA.

[Badger91]

in all honesty I did tell dx that I received the CCA again in July and was weighing up if it was worth letting it go to county court when all that was left was the DN and NOA,

and that I would just incur more costs by letting it go that far,

but at no point was I told I had no defence and that it was pointless.

I could have just accepted to pay the 389.69 ?