Lowell claimform - old JD Williams CAT debt

[newdad]

so if it goes to mediation,

the fact that they initially (2 months ago) refused to comply with a CCA request is of no relevance?

....ie any creditor can refuse a cca request and then shortly afterwards enter a claim,

isn't that at the very least frowned upon by the courts/judge?.....

 

 

..back to the POC and defence,

I disagree with their POC's simply due to them not supplying me with the relevant paperwork.

...If it goes to mediation,

I'll bring up the charges issue and the fact that Lowells put up roadblocks (i.e debt not regulated by the cca 1974) when originally requested...

 

 

..proposed defence is in the attached doc (personal details removed, amounts rounded up).

 

 

..I'd be very grateful if Andy and/or DX could give it a quick proofread.

 

 

(my bullet point 6 in the defence might have to be removed though I think, as they have sent me a credit agreement of sorts, although the statement they sent looks like something that's been cooked up on excel than an offical statement).

 

 

..thanks chaps

Particulars of Claim lowells.pdf

[shamrocker]

You're denying ever having any dealings with JD Williams or that they ever contacted you about the debt??

 

Can you post up scans of what they've sent you so far?

[newdad]

para's 2 , and 6a and 6b will need to be removed I think..

...i'm not good at proofreading...

 

 

.yes, I had dealings with JD Williams (still do) regarding other accounts..

..no default notice though or letters regarding reassignment of debt of this account..

 

 

....lowells sent me emails wanting payments,

but they never sent me default notices,

letters of assignment,

 

 

just demands for payment,

 

 

when challenged to prove debt (cca request),

they replied that account not regulated by cca (see above)...

..revising defence statement currently, and will re-post shortly

[newdad]

*revised*

Particulars of Claim lowells2.pdf

[shamrocker]

It's in their POC that the debt is under a regulated agreement, so you need to proceed on that basis.

 

Just to clarify, you say you've had dealings with the original creditor on 'other' accounts - are you saying that the account number on this claim is not known to you at all? Is it on the account summary they sent you?

 

Can you post up the agreement and account summary they've sent you?

[newdad]

It's in their POC that the debt is under a regulated agreement, so you need to proceed on that basis.

 

Just to clarify, you say you've had dealings with the original creditor on 'other' accounts - are you saying that the account number on this claim is not known to you at all? Is it on the account summary they sent you?

 

Can you post up the agreement and account summary they've sent you?

Already done http://www.consumeractiongroup.co.uk/forum/showthread.php?470948-Lowells-JD-Williams-claim-form-received&p=4968531&viewfull=1#post4968531

 

as I've mentioned before I believe, I'm not denying that I've had dealings with the OC, rather the onus of proof is on lowells that they have the rights to collect on this account as they're the claimants not the OC, and if provide said evidence, then my next step will be to challenge the amount owed in the POC's

[shamrocker]

Ok, thanks.

 

Your defence doesn't deny having actually accrued the debt. This being the case, the court will assume you accept that amount is true and accurate.

 

It's then a case of, 'is the agreement valid'. It looks like it is to me.

'Has a default notice been issued and was it valid'. There's nothing to say that one has, but it can be remedied later if it wasn't. You could certainly challenge them on this point though and it would make them work to prove it. I think they'd get around it in the end.

'Has the debt been legally assigned'. They will usually find it easy to persuade the court that it has.

 

You need to be careful how you proceed with this. I'd be looking to make them work and also pin them on the legal status of the charges in a bid to reduce the overall debt.

[newdad]

thank you for your reply, indeed to all that have replied ...

 

 

..Re. my defence, I'm initially looking to submit a defence to give myself some time to decide what to do.

 

 

...probably a stupid question,

but I'm presuming that my defence can only contain challenges to the POC's and not the issue of penalty charges etc?..

..the penalty charges would be brought up as a point of contention should the case proceed?.....

 

 

...If the case proceeds, then again I'm presuming mediation is the next step?..

...If so, I'd be quite happy to offer settlement for the overall claim amount

(minus court costs and minus penalty charges with associated interest)

Is this a realistic assumption?....

 

 

..........On the issue of charges, I've downloaded the cisheet linnk which DX kindly provided,

but do I calculate it from the date of the first charge until the final entry on the statement,

or do I calculate it until the date of issue of claim?

[AndyOrch]

You calculate up until the matter is dealt with...so up to any trial date.

 

newdad I would prefer you type out your proposed defence to the thread (rather than an attachment) then I can check it and tweak it a lot quicker if necessary.

 

Andy

[newdad]

You calculate up until the matter is dealt with...so up to any trial date.

 

newdad I would prefer you type out your proposed defence to the thread (rather than an attachment) then I can check it and tweak it a lot quicker if necessary.

 

Andy

Yes, no worries, I'll pop it up shortly

[newdad]

Proposed defence (identifiers remvoved, amounts rounded up)

 

Particulars of Claim:

 

1) the defendant entered into a consumer credit Act 1974 regulated agreement with JD Williams under account reference xxxxxxx ('the agreement')

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 06/03/2015 and notice given to the claimant

4 .Despite repeated requests for payment, the sum of £300 remains due and outstanding

5.And the claimant claims

a) the said sum of £300

b) interest pursuant to s69 County Courts Act 1984 at the rate of 8% per annum from the date of assignment to the date of issue, accruing at a daily rate of £0.05 but limited to one year being £20

c) Costs

 

 

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 2 is denied as I have never been contacted by JD Williams with regards to any alleged outstanding monies. It is also denied I have been served with a Default Notice pursuant to the consumer credit Act 1974. As the assignee of this alleged debt the claimant would not be aware whether one had been served or not.

 

3. Paragraph 3 is denied as I am unaware of any alleged assignment purported to the account number referred to nor ever served any Notice of Assignment.

 

4. The Claimant has not complied, as far necessary, with any pre-action conduct practice direction.

 

5. Notwithstanding the above a request was made under the customer credit Act 1974,by way of a section 78 for a copy of the agreement, the Claimant is and remains in Default of said s78 request. Any Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that both the Original Creditor and the Assignee remain in default by reason of

Section 78 of the Act.

A further request made via CPR 31.14, after the claim had been issued, requesting disclosure of documents on which the Claimant is basing their claim. The Claimant has not complied fully with said document disclosure and will not be responding to any further correspondence on this issue

 

6. 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) evidence any nature of breach and provide proof of any Default Notice and Notices of Sums in Arrears

b) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

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

 

8. 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.

 

9. The Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that both the Original Creditor and the Assignee remain in default as set out

above and by reason of Section 78 of the Act.

 

10. 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.

[AndyOrch]

Apart from their none compliance to your section 78 request .

[newdad]

Thanks Andy....defence now filed and I'll update the thread when I hear something

[newdad]

just thought I'd update this thread and to be honest, there isn't much to add, it's be stayed for a year now...... and to celebrate a year of being stayed, Northampton County Court very kindly sent me a new claim pack for another debt (see other thread).....ho hum!

[shamrocker]

I'd be pretty confident the'll not lift the say on this for such a small amount. Even so, you will have a valid challenge on the penalty charges, at least. The prospect of a day in court (and incurring the associated costs) to possibly make a loss will make them think twice about seeing it through to the finish.