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  1. #1
    stangg's Avatar

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    Default Defence of claim (Lowell)

    Issue Date: 9/12/2016
    Amount approx: £
    1,748.37
    Claimant: Lowell
    Solicitor: Lowell Solicitors
    Original Creditor: Vanquis
    Particulars of Claim:
    1) The defendant entered into a consumer credit act 1974 regulated agreement with vanquis under account reference xxxx ('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 21/02/2012 and notice given to the defendant. 4) despite repeated requests for payment, the sum of £1,748.37 remains due and outstanding. And the claimant claims a) the said sum of £1,748.37 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 £0.383, but limited to one year, being £139.87 c) costs
    Is the debt Statute Barred? I believe so
    List any letters you have sent: Pre action conduct
    Any Other Info:


    I have a couple of days to return my defence to the court after my acknowledgement of service. So far the following has happened.

    The debt in question is for £1700 for an old vanquis credit card

    I received a letter before claim back in July 2016, to which I responded with a pre action conduct stating I do not accept their claims and to provide me with the usual docmentation (assignment, contract, default notice, statements).

    Over the following months they provided me with various documents, refused the deed of assignment (as its private), did provide me with a printout of my personal details from back then and a letter noting the contact was electronically signed, a statement of transactions for the credit card and a sample default notice (xxx in the address, made up names and numbers and dates) but not a copy of any default notice that was sent to me.

    The statements show that the last payment on the account was September 2010.

    Now I have received the county court claim (sent on the 9th December) and have acknowledged service. I intend to defend the claim based on the debt being statute barred due to cause of action being at the latest the payment due date in October 2010 and the claim being issued in December 2016.

    Do I just submit my defence that it is statute barred on the form with something like this:

    Code:
    1 The Claimant's claim was issued on (date).
    
    2 The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.
    
    3 The Claimant's claim to be entitled to payment of £1700 or any other sum, or relief of any kind is denied.
    Do i need to also mention that a copy of an issued default notice was not provided?
    Should I be worried that my letter denying their claim before and asking for documents was a written admission of the debt as it was before the statute barred date?
    When I submit my defence, do I also need to send anything to Lowell Solicitors or will it all be handled through the court now?
    Last edited by stangg; 11th January 2017 at 13:25:PM.

  2. #2
    charitynjw's Avatar

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    Default Re: Defence of claim (Lowell)

    Hi stangg & welcome to LB.

    Have you sent a s78 CCA request?

    How 'old' is the agreement?
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    Opinions are made to be changed --or how is truth to be got at?" (Byron)

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  3. #3
    stangg's Avatar

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    Default Re: Defence of claim (Lowell)

    I have not as I was advised it wasn't necessary.

    I took out the credit card sometime in 2008 I think, I don't have the documents to hand at the moment. The last payment made on it was September 2010 though.

    I should also note that for some reason the court documents were not redirected by royal mail to my new address and only when I was suspicious that I hadn't received anything from them yet did I call and find out they had been sent on the 9th December, this was last friday (6th jan), the girl on the phone was very helpful and sent me the response pack by email and advised if I got my acknowledgement of service in by 4pm that day then I would have until this friday to submit my defence. It's quite tight timing, hoping to send it in later on this evening.

    below is a copy of the letter I sent them

    ****************************** Sirs,

    Re: Your Client – Lowell Portfolio I Ltd
    Pre Action Conduct - Request for Information

    With regard to your letter dated 12th July 2016, which stated Legal Action would be taken, I take this to be a Letter before Action under the above named Pre Action Conduct Protocol and as such I am responding accordingly.

    As you have indicated you are acting on behalf of Lowell Portfolio I Ltd in this action, I assume you are authorised to accept service of documentation, therefore, please accept this request for Information sufficient to understand the claim being threatened and as such is in accordance Section 3 of the Pre Action Conduct, by way of Service Upon You and your client.

    As I have never entered into any Legal Agreement or Contract with your client, for any monies or specifically for the alleged amount of £1748.37; and I neither accept nor acknowledge the assertion any debt has been Legally and Absolutely Assigned to your client, I therefore, request the following documentation under Pre Action Conduct Section 6 (c) as proof of your Clients assertions of a Legal Obligation, to be provided to me within 40 days of the post marked date of this letter.

    I. Pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974) a copy of the Original Signed Consumer Credit Agreement, along with a copy of the original Terms & Conditions and any and all subsequent changes in said Terms & Conditions.

    II. Statements of the Account referred to, including details of all payments made and calculation of how interest was charged against each item, leading to the Alleged Debt of £1748.37.

    III. Also, as this is an Alleged Debt, I believe Default Charges may have been applied to the Account and as such may be unlawful under the Unfair Consumer Contract Terms Regulations 1999, therefore, I would request details of each and every Default Charge applied to the Account (i.e. if the charge was for ‘Administration’ what Administration was undertaken to support the Default Charge) along with details of any Interest Charged against each Default Charge applied.

    IV. In accordance with Section 87.1 Of the Consumer Credit Act 1974 (as amended) a copy of the Default Notice from the original owners of the Alleged Debt and Certified Copies of how this was served upon me.

    V. A copy of the Legal / Absolute Assignment of the Agreement, including a copy of a Duly Executed Deed of Assignment and / or Deed of Tripartite Novation; and

    VI. In accordance with Section 196 of the Law of Property Act 1925, Certified Copies of how I was served with the Alleged Legal Assignment.

    VII. A copy of the Alleged Notice of Assignment sent by the original creditor to the Defendant and again, in accordance with Section 196 of the Law of Property Act 1925, Certified Copies of how this was Served upon me.

    Should proceedings commence against me and your client fail to provide each and every document requested, I will make an Application to the Court to Stay your Clients claim until the request is complied with and request the Court impose Sanctions against yourself and your client for failure to adhere to the provisions of the above mentioned Practice Direction.

    Also please be aware, each document listed is required to provide absolute and legal proof of your client’s contention of a legal indebtedness towards them and again, should your client fail to produce said documentation and Proceedings Commence against me.

    As a part of my defence I will re-request production of each and every document under an appropriate Civil Procedure Rule, along with a request under CPR Part 39.a (3.3) for the original of every document upon which you intend to rely be brought to any subsequent hearing for examination.

    Please note, where I have mentioned a document and there is in your clients possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version 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 version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

    I look forward to your response in due course.
    *********************************
    Last edited by stangg; 11th January 2017 at 13:24:PM.

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    charitynjw's Avatar

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    Default Re: Defence of claim (Lowell)

    I. Pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974) a copy of the Original Signed Consumer Credit Agreement, along with a copy of the original Terms & Conditions and any and all subsequent changes in said Terms & Conditions.
    Did you include the £1 fee with this?
    & do you have proof of postage?
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  5. #5
    stangg's Avatar

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    Default Re: Defence of claim (Lowell)

    No I did not include the fee and yes I have proof of postage as it was sent special delivery, that and I have the response letters from lowell solicitors.

    However my main point is how do I word the statute barred defense, whether or not they have sent me a copy of the original consumer credit agreement is moot if it's statute barred?

  6. #6
    charitynjw's Avatar

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    Default Re: Defence of claim (Lowell)

    Quote Originally Posted by stangg View Post
    No I did not include the fee and yes I have proof of postage as it was sent special delivery, that and I have the response letters from lowell solicitors.

    However my main point is how do I word the statute barred defense, whether or not they have sent me a copy of the original consumer credit agreement is moot if it's statute barred?
    If you send a CCA s78 request with the appropriate £1 fee & they do not respond with compliant documentation within 14 days, they cannot enforce their claim until they do comply.
    It also adds another legal argument to your defence.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  7. #7
    stangg's Avatar

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    Default Re: Defence of claim (Lowell)

    Quote Originally Posted by charitynjw View Post
    If you send a CCA s78 request with the appropriate £1 fee & they do not respond with compliant documentation within 14 days, they cannot enforce their claim until they do comply.
    It also adds another legal argument to your defence.
    I don't think I have time to do that now?

    They have sent me a copy of the agreement anyway i think in the form of the printout and statement that it was electronically signed. They haven't sent me an actual copy of the default notice however, which doesnt require a fee.

    back to my original questions:

    Do I just submit my defence that it is statute barred on the form with something like this:

    Code:
    
    1 The Claimant's claim was issued on (date).
    
    2 The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.
    
    3 The Claimant's claim to be entitled to payment of £1748.37 or any other sum, or relief of any kind is denied.
    
    Do i need to also mention that a copy of an issued default notice was not provided?
    Should I be worried that my letter denying their claim before and asking for documents was a written admission of the debt as it was before the statute barred date?
    When I submit my defence, do I also need to send anything to Lowell Solicitors or will it all be handled through the court now?

  8. #8
    charitynjw's Avatar

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    Default Re: Defence of claim (Lowell)

    Quote Originally Posted by stangg View Post
    I don't think I have time to do that now?
    Yes, you do.

    They have sent me a copy of the agreement anyway i think in the form of the printout and statement that it was electronically signed. They haven't sent me an actual copy of the default notice however, which doesnt require a fee.
    Did they include T&Cs at both inception & at breach?
    Statement of account?


    back to my original questions:

    Do I just submit my defence that it is statute barred on the form with something like this:

    Code:
    
    1 The Claimant's claim was issued on (date).
    
    2 The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.
    
    3 The Claimant's claim to be entitled to payment of £1748.37 or any other sum, or relief of any kind is denied.
    
    Are you 100% confident that it is SB?
    How would you rebut a BMW Finance v Hart argument?

    Do i need to also mention that a copy of an issued default notice was not provided?
    Yes
    Should I be worried that my letter denying their claim before and asking for documents was a written admission of the debt as it was before the statute barred date?
    Not unless you have admitted/acknowledged the debt.
    When I submit my defence, do I also need to send anything to Lowell Solicitors or will it all be handled through the court now?
    At this stage, if this is an MCOL claim the court will deal with it.
    ####
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  9. #9
    stangg's Avatar

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    Default Re: Defence of claim (Lowell)

    If I send a CCA request, what do I do about my defence, do I submit it as normal, do I add anything else, its due in 2 days otherwise I will receive a judgement.

    They did not include the T&Cs of any kind, but they did provide a statement of account which is where i got the dates from to ascertain that its statute barred from cause of action. As they have no supplied a default notice I cannot be 100% sure that its statute barred from the date of the default notice.

    How do I word the part where they have not sent me the default notice, also do I need to change the wording on my statute barred defense to say that I'm basing this off the information that has been provided where cause of action was September 2010?

  10. #10
    charitynjw's Avatar

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    Default Re: Defence of claim (Lowell)

    Quote Originally Posted by stangg View Post
    If I send a CCA request, what do I do about my defence, do I submit it as normal, do I add anything else, its due in 2 days otherwise I will receive a judgement.
    Just say that a CCA request has been sent on (date) & you are awaiting a reply from the Claimant &/or their solicitors.

    They did not include the T&Cs of any kind,
    (If it had been a CCA request, they would be non-compliant).
    but they did provide a statement of account which is where i got the dates from to ascertain that its statute barred from cause of action. As they have no supplied a default notice I cannot be 100% sure that its statute barred from the date of the default notice.
    Hence why it's a good idea to have alternative legal arguments.

    How do I word the part where they have not sent me the default notice,
    From LB's defence example
    7. It is denied that [Original Creditor] served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
    also do I need to change the wording on my statute barred defense to say that I'm basing this off the information that has been provided where cause of action was September 2010?
    I wouldn't change the wording, as the burden of proof will be on the Claimant to prove it wasn't SB.
    However, I'd scour any available records to prove in court (if it gets that far) to show it definitely is SB.
    Have you tried your bank records?
    Or SAR'd the original creditor?
    ####
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  11. #11
    stangg's Avatar

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    Default Re: Defence of claim (Lowell)

    The only records I have is the statement that they sent me showing payments on the account, there is a payment in September 2010, then default charges, then some interest up until April 2011, even being generous that cause of action was after two missed payments that would still be before the date of the claim.

    So i will write up and send a CCA request, I don't have a chequebook, can I send the £1 in cash? Send it recorded delivery to the claimant and add a line in my defence to that effect?

    so my defense will look like this

    Code:
    1 The Claimant's claim was issued on (date).
    
    2 The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.
    
    3 The Claimant's claim to be entitled to payment of £1748.37 or any other sum, or relief of any kind is denied.
    
    4 A CCA s78 request has been sent to the claimant on (date) and I am currently awaiting a reply.
    
    5 It is denied that [Original Creditor] served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
    Thanks for your help so far.

  12. #12
    charitynjw's Avatar

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    Default Re: Defence of claim (Lowell)

    So i will write up and send a CCA request, I don't have a chequebook, can I send the £1 in cash? Send it recorded delivery to the claimant and add a line in my defence to that effect?
    Postal order is best.
    Make payable to the Claimant, & endorse it 'For Statutory purposes only'.
    Also put any account reference number the Claimant is using on it so that it doesn't go astray.
    Don't forget proof of posting.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

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    Default Re: Defence of claim (Lowell)

    Ah thats a great idea thank you.

    Is the wording of my defence ok?

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    charitynjw's Avatar

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    Default Re: Defence of claim (Lowell)

    Quote Originally Posted by stangg View Post
    Ah thats a great idea thank you.

    Is the wording of my defence ok?
    How about the s87 Default Notice & Notice of Assignment per their Particulars of Claim?
    Did you receive them?
    Perhaps it might be an idea to look at the defence example at the top of this thread.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  15. #15
    stangg's Avatar

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    Default Re: Defence of claim (Lowell)

    I've taken from the template what I think is relevant here, does this all make sense, can I both ascertain that its statute barred and also that it be struck out if they do not provide the documentation I requested?
    ************************************************** **************************************************
    1. I received the claim [Claim Number] from the Northampton County Court on 6th January 2017.

    2. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

    3. This claim is for a Credit Card agreement regulated under the Consumer Credit Act 1974.

    4. The Claimant's claim was issued on 9th December 2016.

    5. The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

    6. A request Pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974) a copy of the Original Signed Consumer Credit Agreement, along with a copy of the original Terms & Conditions and any and all subsequent changes in said Terms & Conditions, has been sent to the claimant on 12th January 2017 and I am currently awaiting a reply.

    7. It is denied that the original creditor served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

    8. 'The Claimants statement of case states that the account was assigned from Vanquis to the claimant on 21/02/2012. The Defendant does not recall receiving notice of this assignment.'

    9. On the 20th July 2016 I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors. I requested the Claimant provide copies of the Default Notice and Notice of Assignment.

    10. Lowell Solicitors has not sent any of these documents to me.

    11. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

    12. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

    13. 'Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.'


    14. It is denied that the Claimant is entitled to the relief as claimed or at all.
    Last edited by stangg; 12th January 2017 at 07:57:AM.

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    charitynjw's Avatar

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    Default Re: Defence of claim (Lowell)

    Double-space the paragraphs.
    Renumber them from the beginning paragraph.
    (you've also got two 5's & two 8's)

    If it were me I'd also include:-
    'Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.'
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

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    stangg's Avatar

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    Default Re: Defence of claim (Lowell)

    edited, how does that look?

    Thanks so much for your help, you've been amazing

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    charitynjw's Avatar

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    Default Re: Defence of claim (Lowell)

    Another bit?

    'The Claimants statement of case states that the account was assigned from [Original Creditor] to [Claimant] on [Date]. The Defendant does not recall receiving notice of this assignment.'
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  19. #19
    stangg's Avatar

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    Default Re: Defence of claim (Lowell)

    Ok added that bit too, I hope it all fits on the form

    Am I good to submit this defence? Also if I also send copies of the correspondence that I've sent to Lowell at this point will they be entered with my defence?
    Last edited by stangg; 12th January 2017 at 08:11:AM.

  20. #20
    stangg's Avatar

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    Default Re: Defence of claim (Lowell)

    thanks again for your help, I sent the CCA request along with a postal order (there was no endorsement field so i added a note on the back under my name and address that you advised) via special delivery to the claimant and I've submitted my defence to the court. Fingers crossed.

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