Court Summons from Lowells & BW Legal re Capital One

[marcsmith]

If you need help dealing with BW Legal / Lowells / Capital One please make a thread on the forum -> MAKE NEW THREAD

This thread is from 2014 so does not have the most up to date information.

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Hi

I hope I can get some advice for a elderly friend of mine. This post is almost identical to jefstudent

To cut to the chase, I have an elderly disabled friend I havent seen for a while. He lives alone but has a carer call in daily. He trusts very few people, but does trust me.

When I called I discovered a mountain of post including a County Claim Form, Claimant Lowell Portfolio, with an address for correspondence BW Legal, Leeds being Lowells solicitors. The Claim Form is dated 27.01.14.

The envelope return address is: PO Box 300, Northampton, NN1 2TX and it was posted 1st class Royal Mail - Newcatle upon Tyne.

It states on the Claim Form that the original debt was with Capital One. It goes on to say 'under account reference XXXXXXXXXXX and assigned to the Claimant (Lowells) on 12.02.2009. notice of which has been given to the Defendant. The Defendant failed to maintain the contractual payment under the terms of the agreement and a default notice has been served and not complied with.

Now my friend cannot recall the Capital One debt (maybe due to his very bad health and medication).

I want to try and help my friend and wondered if I should help him search his Credit File to find out if the debt is actually statute barred. I am however worried that if we search his Credit File it may flag up other debts.

So one ofmy questions is: If we search my friend's credit file, will it alert possible other creditors and open up a Pandora's Box?

Lowell bought the debt on 12.02.2009 which means the debt they purchased from Capital One is 5 years old in 2 weeks time.

But Capital One is the original creditor - so does the 6 year clock tick from the original creditor or from when Lowells bought it 5 years ago. My friend cannot remember the debt, but I think it has a good chance of being Statute Barred as Capital One must have not been receiving payment for a period of time before factoring the debt out.

Also the Claim Form is requesting Statutory interest under Section 69 of the county court Act 1984 at the annual rate of 8.00% making a daily rate of 60p from the date of the assignment of the agreement to the date of issue 24.01.14. amounting to £1,084.80 which by my calculation is the date of 12.02.2009 when Lowells obtained the debt.

The original debt was £2,753.22 then interest of £1,084.80, Court Fee £85, Solicitor's Fee £80 making a total Claim of £4,003.02. If my friend sends a SAR to Capital One they have 40 days to reply and we dont have that timescale.

Please, any help would be really appreciated. I have read Jefstudent thread, but I really cannot understand some of the instructions.

[FlamingParrot]

Re: Court Summons from Lowells & BW Legal re Capital One

Hi and welcome!

The first thing your friend has to do is acknowledge service of the claim, he's got 14 days from date of service to do so, and can usually be done online or by email. He should state his intention to defend in full, giving them a total of 28 days to submit a defence.

He should also send a CCA request to Lowell with a PO for £1. It should go recorded delivery and signed digitally using a computer font. A copy (without the fee) should also be sent to BW Legal. :thumb:

Dear Sirs,

Account or Reference No.:

I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974).I require you to provide me with a true copy, or reconstituted copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days).

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties. Your attention is drawn to ss.5(2), 3(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

In line with recent OFT Guidance (issued Oct 2010) surrounding Unenforceability, I presume you're aware that the OFT has stipulated that 'sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements'. This simply means that under these sections a debtor can pay £1 to get:

• a copy of their agreement
• copies of some of the other documents mentioned in their agreement
• a statement of account

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

• make the debtor pay the debt before they're supposed to
• get a court judgment against the debtor

So, in line with the OFT Guidance, and the Consumer Credit Act, please find attached my £1 payment, which is the statutory fee - note that these funds are not to be used for any other purpose.

Yours faithfully,

[FlamingParrot]

Re: Court Summons from Lowells & BW Legal re Capital One

Once he's acknowledged the claim, he should send a CPR 31.14 request for documents to BW Legal, by recorded delivery. It may need to be amended to suit the particulars of claim.

Dear Sirs,

Re: XXXX v YYYYY
Case No: xxxx

CPR 31.14 Request

On [DATE] I received the Claim Form in this case issued by you out of the Northampton County Court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest your entire claim.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

1. The Agreement. Together with the relevant terms associated with that account, you will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.
2. The notice of assignment.
3. The default notice, compliant with 87(1) of the Consumer Credit Act 1974.

Although your claim is for a sum which does not exceed £10,000.00 and thus in all likelihood it will be allocated to the small claims track once I deliver my defence, however as I am unable to lodge my defence at this moment, the case has not been allocated to a track for determination upon delivering a defence, as a consequence the provisions of CPR 27(2) have no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing as a result to a modification, obliteration or othermarking, or feature, each version thus will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any, and all version(s) and include an obligation to recover and preserve such version(s) that are now in the possession of a third party.

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

Yours faithfully

[FlamingParrot]

Re: Court Summons from Lowells & BW Legal re Capital One

I want to try and help my friend and wondered if I should help him search his Credit File to find out if the debt is actually statute barred. I am however worried that if we search his Credit File it may flag up other debts.

Credit files are not a good indication of SBd status because often payments are made after default.

So one ofmy questions is: If we search my friend's credit file, will it alert possible other creditors and open up a Pandora's Box?

Lowell bought the debt on 12.02.2009 which means the debt they purchased from Capital One is 5 years old in 2 weeks time.

But Capital One is the original creditor - so does the 6 year clock tick from the original creditor or from when Lowells bought it 5 years ago. My friend cannot remember the debt, but I think it has a good chance of being Statute Barred as Capital One must have not been receiving payment for a period of time before factoring the debt out.

The SBd clock starts from the cause of action, which could be said to be right after the first missed payment, not from when the debt was sold. Not all debts are sold.

The original debt was £2,753.22 then interest of £1,084.80, Court Fee £85, Solicitor's Fee £80 making a total Claim of £4,003.02. If my friend sends a SAR to Capital One they have 40 days to reply and we dont have that timescale.

No, you don't, however there's another way to request such information once a claim has been issued, using the CPR. I'll be back and post something up a bit later.

[FlamingParrot]

Re: Court Summons from Lowells & BW Legal re Capital One

In addition to the requests above, you can also send BW Legal a Part 18 request for further information, as below, to find out the dates when payments were last made. It is possible to ask further questions that may be of relevance, see this for reference: http://www.justice.gov.uk/courts/pro...rt18/pd_part18

In the XXXX county court

Claimant -v- defendant

Claim Number: (CLAIM NUMBER)

Dear xxx,

CPR 18 - REQUEST FOR INFORMATION

I have received a recent court claim from your organisation. In order to file a defence I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information requested below:

1. What date is shown as the date when the last payment was made into this account?

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU.

Yours sincerely,

[CleverClogs]

Re: Court Summons from Lowells & BW Legal re Capital One

Of course, it is also quite possible that Bowells are suing the wrong person.

[FlamingParrot]

Re: Court Summons from Lowells & BW Legal re Capital One

Of course, it is also quite possible that Bowells are suing the wrong person.

Could be, although not many cases where that has happened. If they can't supply the information requested in all those letters, then they will be stuffed, won't they? :grin:

[marcsmith]

Re: Court Summons from Lowells & BW Legal re Capital One

Thanks very much for all the help. I'm now at my friend's house and I'm going to be dealing with this matter during the course of today and will follow all of your kind advice.

One more question, the original debt was £2,753.22 but with interest and charges is now standing at £4,003.02. If the Claim is successfully struck out, could Lowells then chase the interest of £1,084.80 which has accrued since the debt was assigned to them?

Once again, thanks for all your advice and help.

[FlamingParrot]

Re: Court Summons from Lowells & BW Legal re Capital One

One more question, the original debt was £2,753.22 but with interest and charges is now standing at £4,003.02. If the Claim is successfully struck out, could Lowells then chase the interest of £1,084.80 which has accrued since the debt was assigned to them?

The interest is included in the amount claimed, if the claim is struck out, then the whole thing is struck out.

[marcsmith]

Re: Court Summons from Lowells & BW Legal re Capital One

Hello, I really need your urgent help please.

We have now had a look at my friend's Credit File, it shows the above debt belonging to Lowells and the Date of Default is 04.05.2008. On the Court Claim it states that Lowells were assigned the debt on 12.02.2009. My question is when does the 6 year time limit start from? Is it from the date of the last payment (which does not show on the Credit File) or is it from the Date of Default?

Also I discovered another debt in the hands of Lowells relating to a Barclaycard, the Date of Default is 12.03.2009 and the debt was bought by Lowells on 30.06.2010.

What can I do now to help my friend? If the 6 year time period is from Date of Default, then he is 3 months short of the deadline. Please can someone help us. Thanks

[FlamingParrot]

Re: Court Summons from Lowells & BW Legal re Capital One

We have now had a look at my friend's Credit File, it shows the above debt belonging to Lowells and the Date of Default is 04.05.2008. On the Court Claim it states that Lowells were assigned the debt on 12.02.2009. My question is when does the 6 year time limit start from? Is it from the date of the last payment (which does not show on the Credit File) or is it from the Date of Default?

In reality, it's neither, it starts from the cause of action, usually after the first missed payment, which would be one month after the last payment.

Although it's often thought of as starting from the date of the last payment, the creditor would have no cause of action at that point, since they'd have no way of knowing that the next payment would be missed.

The default date on the credit file is immaterial for limitation purposes, however, it can give you a slight indication as long as no payments were made after defaults. Defaults are meant to be recorded between 3 and 6 months after the first missed payment so this is really right on the line. :confused2:

Your friend could go either ahead and submit a statute barred defence, putting the onus on the claimant to prove it isn't, or he could send the above request for information and see if they come up with something before making that decision. :noidea:

Also I discovered another debt in the hands of Lowells relating to a Barclaycard, the Date of Default is 12.03.2009 and the debt was bought by Lowells on 30.06.2010.

You say on your first post that the claim relates to a Capital One card so it would be for this one.

What can I do now to help my friend? If the 6 year time period is from Date of Default, then he is 3 months short of the deadline. Please can someone help us. Thanks

As above, it's not from default date. He could submit the SBd defence or ask for the last payment date. :decision:

Once the claim has been acknowledged, stating intention to defend in full, he has 28 days from service to submit a defence, so it's not a decision that has to be made overnight. :nono:

[marcsmith]

Re: Court Summons from Lowells & BW Legal re Capital One

Hello Flaming Parrot

Yes the Court Claim relates to Capital One who sold the debt to Lowells in February 2009 with a Default Notice dated 04.05.2008.

The 2nd debt I discovered related to a Barclaycard which has now been sold to Lowells (no Court Claim to date).

Should he send the CCA request to Lowells and CPR to BW Legal and should he apply for a SAR to Capital One.

I'm really confused, will worry about the other debt to Lowells for Barclaycard once a decision of how to proceed with the Court Claim for the Capital One debt is sorted.

Thanks

[FlamingParrot]

Re: Court Summons from Lowells & BW Legal re Capital One

Hello Flaming Parrot

Yes the Court Claim relates to Capital One who sold the debt to Lowells in February 2009 with a Default Notice dated 04.05.2008.

The 2nd debt I discovered related to a Barclaycard which has now been sold to Lowells (no Court Claim to date).

Should he send the CCA request to Lowells and CPR to BW Legal

Yes, as per posts above. :thumb:

and should he apply for a SAR to Capital One.

They have 40 days to respond to a SAR, it would be best just to send the CPR Part 18 request posted here: http://www.legalbeagles.info/forums/...804#post406804

I'm really confused, will worry about the other debt to Lowells for Barclaycard once a decision of how to proceed with the Court Claim for the Capital One debt is sorted.

Very wise, that's a bridge to be crossed if and when you come to it.

[marcsmith]

Re: Court Summons from Lowells & BW Legal re Capital One

Spoke with Capital One and they have stated that the last payment made by my friend was on 4 October 2007 for £140.

The Manager from Capital One is confirming this in writing within the next 7-10 days.

The Default Notice is dated 04.05.2008 which is 6 months after the last payment.

Any advice on how to proceed now please.