Claim Form received from Lowell for Three Mobile

[thunderballs]

The amount that comprises Early Termination Fees they won't get - Section 11 of Three Mobile's Terms and Conditions should see to that.

 

And don't be surprised if the last page of the T&Cs within the evidence pack is missing.

 

That's because being Three Mobile/Lowell, they'll very likely download current terms and conditions, and then try to ascribe those to when the contract was taken out (they tried that in my own case).

 

And that's why the last page will be missing, because it'll have the date of that document on it.

 

And you're absolutely sure you never got a Notice of Assignment? If that's the case, then that could work in your favour.

[Dot1]

The amount that comprises Early Termination Fees they won't get - Section 11 of Three Mobile's Terms and Conditions should see to that.

 

And don't be surprised if the last page of the T&Cs within the evidence pack is missing.

 

That's because being Three Mobile/Lowell, they'll very likely download current terms and conditions, and then try to ascribe those to when the contract was taken out (they tried that in my own case).

 

And that's why the last page will be missing, because it'll have the date of that document on it.

 

And you're absolutely sure you never got a Notice of Assignment? If that's the case, then that could work in your favour.

 

Hi thunderballs,

 

Thanks for your reply. I am trying to sort out the WS and prepare the bundle for the deadline of 16.03.15. It a bit challenging but I am trying my best.

 

How can I include what you mentioned above in my Witness Statement? Any suggestion. Will appreciate if you could assist.

 

Thanks

Dot

[thunderballs]

Hi thunderballs,

 

Thanks for your reply. I am trying to sort out the WS and prepare the bundle for the deadline of 16.03.15. It a bit challenging but I am trying my best.

 

How can I include what you mentioned above in my Witness Statement? Any suggestion. Will appreciate if you could assist.

 

Thanks

Dot

 

I'd concur with what you've already been advised by other forum members up to now.

 

What I've mentioned isn't really for the witness statement as such - it's more what you're likely to find once you get the evidence pack from the other side.

 

That is, assuming it's not discontinued before then - and other threads going back a long time should tell you that Carter has a habit of discontinuing.

 

Going by what you've said, at least Carter filed it under correct legislation at the initial stage - which is about the only credit you'll ever hear me giving Carter.

 

Unlike Drydens, who'd have likely filed the initial claim under CCA before changing it to LoP 1925 at the last minute and after the 14 day deadline, while the judge completely overlooked it (despite this being pointed out to her both before and during the hearing).

 

It all really depends on the judge you get on the day - I've had plenty of time to mull over the one I had, and she couldn't have been more apathetical if she tried.

 

In fact, I happen to think she was struggling to read salient documents - if it gets to hearing, then it might be worth taking a highlighter to ensure any key points are clearly visible.

[Dot1]

I'd concur with what you've already been advised by other forum members up to now.

 

What I've mentioned isn't really for the witness statement as such - it's more what you're likely to find once you get the evidence pack from the other side.

 

That is, assuming it's not discontinued before then - and other threads going back a long time should tell you that Carter has a habit of discontinuing.

 

Going by what you've said, at least Carter filed it under correct legislation at the initial stage - which is about the only credit you'll ever hear me giving Carter.

 

Unlike Drydens, who'd have likely filed the initial claim under CCA before changing it to LoP 1925 at the last minute and after the 14 day deadline, while the judge completely overlooked it (despite this being pointed out to her both before and during the hearing).

 

It all really depends on the judge you get on the day - I've had plenty of time to mull over the one I had, and she couldn't have been more apathetical if she tried.

 

In fact, I happen to think she was struggling to read salient documents - if it gets to hearing, then it might be worth taking a highlighter to ensure any key points are clearly visible.

 

 

Thanks thunderballs,

 

I thought that I would need to have that in my WS. As per your explanation, I now understand and thanks.

Yes, looking at many thread involving Lowell, the trends seems to be the same.

 

I hope they will give up at some point.

 

 

Dot

[Dot1]

Hi Andy,

 

Below is what I have come up with. Some part are with assumption that they will send their bundle early enough for me to go through and revisit my WS.

 

Not sure if that will happen but please let me have you opinion.

 

Thanks

 

Dot.

 

IN THE MY LOCAL COUNTY COURT, CLAIM No: xxxxxxxxxx

 

BETWEEN:

 

Lowell Portfolio Claimant

 

-AND-

 

Uncle Defendant

 

WITNESS STATEMENT FOR XXXXXXXX

________________________________________________________________

 

I, XXXX of XXXXXX Dot of xxxxx as litigation friend of the claimant in this case and do say the as follows:

 

1 I do not deny that a contract once existed between defendant and Original Creditor (Three Mobile). I deny the contract endures since on a day prior to the commencement of this case against the defendant, the Claimant terminated the contract.

 

3 I deny that the defendant have ever received an effective default notice from the Claimant or original Creditor prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the consumer credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

 

 

5 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first-hand knowledge that the copy so produced was delivered to the defendant, stating the date on which and the means by which the default notice was delivered to the defendant, contrasted with my evidence to the court that a default notice was not delivered to the defendant.

 

10 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the original Creditor sent a letter before action on the XXXXXX demanding payment, being just XX days after the claimant claims the default notice was sent.

 

11 The delivery of the letter before action is good evidence that on or before XX XXXX, the Claimant terminated the agreement.

 

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

13 I sent a CPR31 request on – to the claimant requesting for proof of assignment but to date the claimant has not responded to my request. I also requested for the claimant to provide me with what the amount claimed is made up off and the claimant has failed too to address my query. This entire request were received and signed for on XXXX as per the royal mail confirmation of delivery.

14 The claimant has failed to provide me with the statements of account despite sending a SAR request on XXX which was received and signed foe by a XXX on XXX.

 

13 Without prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the claim is correct and they therefore request the claim value to be £XX XXX XX. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations.

 

14 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to alleged debt and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

15 Notwithstanding the above should the alleged amount claimed include an early termination charge(s) amounting to the entire balance of the remaining contract. OFCOM guidance states that any Early Termination Charge that is made up of the entire balance if 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.

Date: xx July 2015

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

signature

[Dot1]

I looked through the SAR provided by 3 Mibile but there is not a lot in it apart from copies of statements, Notes on account from March 2003 when the account was opened to Sept 2010. There is no any other information there after.

 

No mention of any DN or when it was served.

 

CRA file indicates that default was recorded in January 2011 but according to the statements and payment history, last payment was in mid July 2010.

 

This then seems to suggest that the default was entered in January 2011 (six months) later. Yet there is no mention or evidence of it anywhere from both Original Creditor or Lowell.

 

From the notes, 3 claims to have sent 2 collection letters out. The also included the template in the SAR CD.

 

Below are the templates letter allegedly sent in September 2009.

 

Thanks

 

Dot

 

 

LETTER 1 2010

 

Customer Name Date

Line 1 Address Account number:

Town 3 mobile number:

City

Postcode

 

 

 

Dear Mr/Ms Customer,

 

Balance Outstanding:

 

We’d like to remind you that you still have an outstanding balance on your account and to ask you to settle in full immediately.

 

Please act now.

If you have an ongoing contract with 3, failure to make prompt payments may mean that you will have to pay the total of all monthly charges remaining, based on your minimum term.

 

We may also reduce your credit limit and restrict your 3 services.

 

How to settle.

You can pay off your balance right away with a credit or debit card by:

 

• going to My3 on your mobile

• calling 333 from your mobile and following the prompts to use our automated service

• speaking to Customer Services. Call 333 from your mobile (free of charge) or 0844-3380144 from any other phone* – anytime between 7:00am and midnight, Monday to Saturday and Sunday between 10:00am and midnight.

 

Save time and money.

Why not set up a Direct Debit to pay your bills? That way, you won’t have the hassle of making regular payments and you’ll save £4 every month on administrative charges. To set this up, just call Customer Services on one of the numbers above.

 

Already paid?

If you settled your account in the last seven days, thank you. Please ignore this letter entirely.

 

 

Yours sincerely,

 

 

 

 

Mike Elliot

Head of Credit & Collections, 3

 

*Calls charged at national call rates.

 

 

 

Letter 2

 

Mr xxxxxxx

Xxxxxxxx

Xxxxxxx

xxxxxx

 

xx xxxxx 2010

 

Account Number:

3 Phone Number:

 

Dear xxxxxx,

 

Balance Outstanding:

 

The above balance is overdue on your 3 account.

If you do not settle the balance, in full, we may consider your account to have fallen into default.

 

Details of this Default may be lodged with the credit reference agencies that we use.

You should be aware this information may be used by other lenders whilst assessing applications for credit by you.

 

Please also be advised we may also charge you, an Early Termination Fee, the total of all monthly charges still remaining on your minimum contractual term without further notification.

 

We will also pass your account to a Debt Collection Agency who will collect the outstanding balance and any associated costs and legal fees.

 

To Prevent the above actions please contact our Collections Representatives immediately on 08433 734 432. We are available to take your call between 7:00am and midnight Monday to Saturday and 10.00am to midnight Sunday.

 

It is in your interest to act now. Please call today and speak to a 3 Collections Advisor.

 

Should you have difficulty in making this payment please call us on the above number to discuss alternative payment arrangements

 

Yours Sincerely

 

 

 

Mike Elliot

Head of Credit & Collections, 3

[Dot1]

Could someone please advise me if I need to prepare a Skeleton Argument too.

 

Thanks

 

Dot

[Dot1]

One thing I find interesting especially from 3 Mobile, there is no record of any communication after September 2009 to the time the account was closed.

 

As for Lowell, they have not provided anything apart from their own exaggerated statements and a few printout from their system.

 

Therefore, there is no much information to help to deal.

 

Any suggestion of how to deal with this?

 

Thanks

 

Dot

[Dot1]

Scanning through Lowell's system notes, it states that request was made for information relating to the account DN inclusive but in their response, they choose not to mention anything about it. Even assignment letter was not provided or mentioned at all anywhere in their response.

 

They came up with their statements which shows the amount on the claim form now less cost yet the last statement from 3 Mobile showed a balance of less than £70.00.

 

Thanks.

 

Dot

[AndyOrch]

Dot have you received a witness statement from the claimant ?...does your Notice of Allocation direct that both parties submit a witness statement?

 

Andy

[ScarletPimpernel]

You should remove references to Default Notices under the Consumer Credit Act, since - as mentioned above - mobile phone contracts are not credit agreements and thus not subject to the CCA.

[Dot1]

Dot have you received a witness statement from the claimant ?...does your Notice of Allocation direct that both parties submit a witness statement?

 

Andy

 

Hi Andy,

 

No Andy, No witness statement received yet from claimant.

 

The Notice of Allocation directed each party to deliver every other party and to the court office copies of all documents (including any expert) on which he intends to rely at the hearing no later than 16 March.

 

The original documents shall be brought to the hearing.

 

That was all stated in the Notice.

 

Dot

[Dot1]

You should remove references to Default Notices under the Consumer Credit Act, since - as mentioned above - mobile phone contracts are not credit agreements and thus not subject to the CCA.

 

Thanks ScarletPimpernel,

 

I will do that.

 

Dot

[Dot1]

You should remove references to Default Notices under the Consumer Credit Act, since - as mentioned above - mobile phone contracts are not credit agreements and thus not subject to the CCA.

 

ScarletPimpernel,

 

Does it mean that I can not use the Default Notice issue in the Witness statement or the case at all ?

 

Dot

[Dot1]

Any help at all please.

 

Dot

[dx100uk]

as post 36

 

 

dx

[AndyOrch]

Hi Andy,

 

No Andy, No witness statement received yet from claimant.

 

The Notice of Allocation directed each party to deliver every other party and to the court office copies of all documents (including any expert) on which he intends to rely at the hearing no later than 16 March.

 

The original documents shall be brought to the hearing.

 

That was all stated in the Notice.

 

Dot

 

In that case I personally wouldn't submit one.....their problem is disclosing the original documents at the hearing...which lets face it..what have the got to disclose?

 

Regards

 

Andy

[Dot1]

In that case I personally wouldn't submit one.....their problem is disclosing the original documents at the hearing...which lets face it..what have the got to disclose?

 

Regards

 

Andy

 

Hi Andy,

 

Thanks for your reply.

 

The next question then, what should I do in regards to the dealine?

 

Should I continue with the preparation of the bundle but not submit?

 

I take it that I still have to comply with the direction.

 

Should that be without witness statement then?

 

 

Dot

[AndyOrch]

Yes you must still complete standard disclosure as per the dates specified in the Directions.

 

Standard disclosure and bundles are 2 different entities.

[Dot1]

Yes you must still complete standard disclosure as per the dates specified in the Directions.

 

Standard disclosure and bundles are 2 different entities.

 

Ok thanks.

 

I will do that. I need to make adjustment on thr WS then post back before I can do the final one.

 

My understanding of the direction is that the bundled has to be ready by the date given.

 

Is that right?

 

Thanks

[AndyOrch]

No need for a witness statement Dot...the court has not requested one...standard disclosure must be by the dates stated in your Notice of Allocation Directions.

[Dot1]

No need for a witness statement Dot...the court has not requested one...standard disclosure must be by the dates stated in your Notice of Allocation Directions.

 

Thanks for clarifying that Andy,

 

I will try and put thing together but to be honest, there is nothing to disclose.

 

Thanks

Dot

[AndyOrch]

I expect not apart from any CPR request and response

[Dot1]

I expect not apart from any CPR request and response

 

Thanks

 

Dot

[Dot1]

Yes you must still complete standard disclosure as per the dates specified in the Directions.

 

Standard disclosure and bundles are 2 different entities.

 

Hi Andy,

 

I am a bit confused here.

 

What sort of docs will I be expected to disclose?

 

At what stage is the bundle required?

 

The hearing date is also in the the Notice of Allocation.

 

Sorry for being slow.

 

Dot