Lowell claim form - old very cat debt ***Claim Discontinued***

[Mdot43]

I'll try and keep this brief but I'm desperate for some help on this.

My partner bought an apple watch from very, after lots of backwards and forwards with apple support it was deemed faulty (wouldn't connect to his phone) and returned, Very acknowledged via email the return.

End of story or so we thought,

we received a letter stating the find my phone was active - and to disconnect or the device would be destroyed.

I checked his phone and deleted all devices to make sure - however this was the primary issue with the device and why it was returned. 

Some time later - I find a pile of unopen mail of his and it turns out Very have passed a debt for this watch (that we do not have to lowells).

I make him contact both lowells and very, as the debt is over £1000.

Long story short Very had charged twice instead of refunded, but are saying that the charge is correct as they destroyed the device as find my phone was still active.

Lowells have now taken court action and are asking for £778.70 for a device we don't have. What do I do?

I appreciate he has ignored letters and this probably could have been resolved quickly at the time if he hadn't, but this is the situation we are in now,

do I have any room to manoeuvre on this or should I just pay it to avoid further costs if I fail to defend it? 

[Mdot43]

Hi, Thank you for the quick response,

 

They've submitted a court claim from Northhampton County court business centre.

[Mdot43]

The date is 18th Feb 2022. I'll just sort a PDF now 

 

I'm not currently out of pocket we haven't paid anything 

claim redacted .pdf

[Mdot43]

Which Court have you received the claim from ? Northampton

 

Name of the Claimant ? Lowell, portfolio

 

Date of issue –  18/02/22

 

 

Particulars of Claim

 

What is the claim for – the reason they have issued the claim? 

 

1.The claim is for the sum of £591.99 due by the defendant under an agreement regulated by the consumer credit act 1974 for a shop Direct account with an account reference of xxxxxx.

 

2.The defendant failed to maintain contractual payments required by the agreement and a default notice was served under s.87(1) of the Consumer Credit Act 1974 which has not been complied with.

 

3.The debt was legally assigned to the claimant on 22.02.21, notice of which has been given to the defendant.

 

4.The claim included statutory interest under S.69 of the County Courts 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 £46.71.

The claimant claims the sum of £638.70

 

What is the total value of the claim? 778.70
 

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ? a letter was received 10th December stating 30 days to avoid court claim. 
 

Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? no
 

Did you inform the claimant of your change of address? N/A

Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? Yes
 

When did you enter into the original agreement before or after April 2007 ? After 
 

Do you recall how you entered into the agreement...On line /In branch/By post ? Online
 

Is the debt showing on your credit reference files (Experian/Equifax /Etc...) ? I don't know
 

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? I am assuming yes as he didnt open his mail. 
 

Did you receive a Default Notice from the original creditor? I don't know
 

Have you been receiving statutory notices headed “Notice of Sums in Arrears”  or " Notice of Arrears "– at least once a year ? Yes
 

Why did you cease payments? We never started as the item was returned faulty.

 

What was the date of your last payment? N/A
 

Was there a dispute with the original creditor that remains unresolved? Yes - however they consider it resolved. 
 

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.

 

claim form redacted vr2.pdf

[Mdot43]

Thank you I have used both templates and will get them sent this afternoon. If I defend and don't win will I end up with significantly larger costs? Can you tell I'm nervous about this but determined none the less 

[Mdot43]

Unfortunately we communicated with apple via live chat and telephone so I don't have the transcripts. It was an iphone 8 at the time so I will look into the issues see what I can dig up. I still have the email from Very stating they received the watch back. 

[Mdot43]

Okay Folks I've drafted a defence please could you cast your expert eye over it for me please, I've added a couple of questions in red. Thanks Again! 

 

DEFENCE

 

The Defendant contends that the particulars of claim vague and are 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.

 

Paragraph 1 is noted and accepted I have in the past had financial dealings with Shop Direct in which I cannot recall the precise details of any agreement and have therefore sought clarification by way of a CPR 31.14 and section 77 request which the claimant has currently failed to comply with and therefore is unable to prove its basis of claim pleaded within its particulars.

 

I am saying this but have I had financial dealings as the watch is the only thing ever purchased and that was returned?

 

Paragraph 2 is denied. I did not fail to make contractual payments as I no longer possessed the watch. The Apple watch supplied by Littlewoods (01/06/20) was faulty, Littlewoods acknowledged receipt of the request to return (15/06/20) then a further confirmation that the item was received. Instead of refunding the account Littlewoods in error charged for the item again despite the goods not being of satisfactory quality and having been returned for a full refund in line with the consumer rights act 2015.

 

Littlewoods claim the find my phone feature was enabled however the device was not linked to our account – that was primarily why it was returned – should I state that here or not?

 

Paragraph 3 is denied. I have not been served with a Default Notice pursuant to sec 87 (1) the consumer credit Act 1974.

 

Paragraph 4 is noted with regard's to assignment. The debt was incorrect and is still in dispute and therefore should not have been assigned to a Debt Collector.

 

On receipt of this claim I sent a CPR 31.14 request and a section 77 request for sight of any documents referred to within the Claimants particulars to establish what the claim is for. To date they remain in default of both requests.

 

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.

b) Show how the Defendant has reached the amount claimed for.

c) Show the nature of the breach and evidence by way of a Default Notice pursuant to sec 87.1 CCA 1974.

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

 

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

 

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.

 

 

[Mdot43]

Thank you,

I've just realised something though reading through loads of back cases and the pre action protocol, I have a letter here dated 10th December saying you have 30 days to avoid a county court claim (the one with the red writing) but the amount on it is incorrect, its still for the double charges,

 

they did not reissue this letter before seeking the claim for the reduced amount does that mean it doesn't count as notification? 

 

So technically we never received a statement of the debt that they have actually sought to recover.

[Mdot43]

ah okay, nevermind then.

[Mdot43]

Does anyone have an feedback on how to rework, my defence as its due today. Thank you 

[Mdot43]

Thank you so much for your time Andy, that's fantastic!

[Mdot43]

we have agreed to mediation and have received a text yesterday saying to expect a call tomorrow.

 

Lowells also sent a letter asking to settle for £450 which we haven't responded to, they state that very destroyed the device after we didn't remove it from the 'find my phone' app.

 

We did not have any record of the device being on the app this end as the reason it was returned was because it was faulty.

 

They say because of this Very did not accept the return. 

 

Any tips on tackling the call tomorrow or just stick to our guns that we aren't paying for a device we don't have. 

[Mdot43]

Hi,

 

thank you for the reply, yes I did a lot of the reading and was aware it was a standard response by them so we didn't respond, I just thought I'd mention it for completion and future people who go through the same process.

 

They still haven't supplied the paperwork I requested originally, so no signed agreement or default notice received.  I will tell the mediator that when they call. We have now also passed the 120 days statutory compliance time limit (on 151 now since I sent the letter) so I will mention that also. 

[Mdot43]

Update - so we received a court letter stating we needed to produce witness statements by 4pm Tomorrow. 

 

Just checked my email to get some documents to include and there was an emailed notice of discontinuance! 

 

WE WON!!!!!!!!!!! 

 

Thank you everyone for your help off to donate but thought I would update as I've done so much reading on here and hate not knowing how they work out. 

 

 

[Mdot43]

Funnily enough we just tried to call to confirm but the offices are closed, I will check tomorrow but we do have it in writing and they attached a copy of the court form too. 

[Mdot43]

Yes, we called the court and they said the discontinuation had been filed and the matter closed. Again thank you for everyones help!!