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  1. #26
    Hatch92's Avatar

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    Default Re: Lowell/O2/county court business centre claim

    Hey guys. Me again.

    The defence needs to be in today, SAR request not returned, no other paperwork provided by Lowell to aid in the case.

    I think the only hope I have it to go with the defence Rob suggested that there's no actual proof of this debt etc.
    Please can someone help me write this up?

  2. #27
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    Default Re: Lowell/O2/county court business centre claim

    So I came across this defence which was for a Vodafone account.

    can someone help me edit it to suit me please?


    1: I received the claim D9XXXXXX from the Northhamton County Court on 25th 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 Vodaphone Account agreement regulated under the Consumer Credit Act 1974.

    4: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

    5. The particulars of claim fail to state when the agreement was entered into

    6. The Claimants statement of case states that the account was assigned from Vodaphone to Lowell Portfolio I LTD on 31/07/2015. The Defendant does not recall receiving notice of this assignment.

    7. It is denied that Vodaphone 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: On the 2nd February 2017 I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors Limited I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

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

    10. On the 2nd February 2017 I sent a formal request for a copy of the original agreement to Lowell Portfolio I LTD pursuant to section[77 or 78]??? of the Consumer Credit Act 1974 along with the statutory £1 fee to which I have received no reply.

    11. The Claimant has failed to comply with [s77 (1) / s 78 (1)]??? Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)]??? Consumer Credit Act 1974 cannot enforce the agreement.

    12. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states:

    s78 (6) If the creditor under an agreement fails to comply with subsection (1)-
    (a) he is not entitled, while the default continues, to enforce the agreement; and
    (b) if the default continues for one month he commits an offence.

    13: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but they have not replied.

    14. 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.

    15. It is drawn to the courts attention that the claimant has failed to comply with my request to provide ANY documentation and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor.

    16. It is brought to the courts attention that the claimantfailed to comply with the CCA request stating this agreement is not regulated I refer to the O2 CCA Fixed sum loan Agreement which proves not every agreement is not regulated.

    17. Furthermore, the Civil Procedure Rules in particular practice direct 32 requires that access is granted to the original documents, therefore I require the claimant to provide the defendant sight of the original credit agreement and any terms and conditions that they seek to rely upon in this action pursuant to PD 32.

    18. Notwithstanding point 13, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

    19. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

    20. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974.

    21. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

    22. Alternatively if the court decides not to strike out the claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

    23. 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.

    24. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents.

    25. It is denied that the Claimant is entitled to the relief as claimed or at all.

    26. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists.

    27. 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.

    28. 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.

    29. It is denied that the Claimant is entitled to the relief as claimed or at all.

    Statement of Truth

    The Defendant believes that the facts stated in this Defence are true.



    Signed …………………………………………

    Dated .................................................. ....

    - - - Updated - - -

    Ive lost my head a bit in this as id like to state about them refusing my CCA request due to it being not regulated but not quite sure how to put it -


    this was part of the original post I've just seen but the same stands and to date, I still have not received the postal order back to me.


  3. #28
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    Default Re: Lowell/O2/county court business centre claim

    Do you recall whether you had your mobile device as part of your monthly contract?

    A £50 a month contract seems high if just for a call / data package ( or maybe I'm just a cheapskate )

    Paragraph 10 you want to quote s77 - and change para 11 and 12 and 15 to match

    You may be want to simplify the last few paragraphs as it sounds a bit muddled - maybe shift 18/19 up to 13 also 26 thru 29 are repeats so can be ditched.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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  4. #29
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    Default Re: Lowell/O2/county court business centre claim

    Quote Originally Posted by Kati View Post
    a CCA request won't apply here as this is a mobile contract ... but yes, you need to send a CPR (you can ask for the AGREEMENT and the NOTICE OF ASSIGNMENT as per the particulars of claim )

    The fact this claim has been sent from Northampton is not problematic at all ... it would get transferred to your local court before a hearing

    What kind of contract did you have? If you have a Refresh contract then a CCA agreement IS part of this for the device plan.

    When they say you missed payments, were these for the device or airtime agreement?

    Were you a business or consumer customer and if business was this a lease plan?

    I'm no good on the Court side of it, but I know a fair bit about the contract side and will help all I can.

  5. #30
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    Default Re: Lowell/O2/county court business centre claim

    The O2 Refresh plan which provided two separate contracts: airtime agreement (unregulated) and device plan (CCA Regulated) was launched on 12th April 2013 > https://www.o2.co.uk/termsandconditi...and-conditions

    The OP's agreement was in existence before that date because the POC (post #1) state the debt was assigned to Lowells on 31st January 2013 (assuming that's true of course )

    Therefore the CCA would not apply in this instance.

    Di
    I am a Litigation Executive at Joanna Connolly Solicitors a firm which specializes in consumer credit.

    This forum’s site rules don’t allow me to give advice by PM but if you need to contact me please email [email protected]. Our initial advice is always free.


    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

  6. #31
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    Default Re: Lowell/O2/county court business centre claim

    As it stands I removed 13. Moved everything up one and added in any info I felt necessary to add to the defence plus all the details needed to have it match for this particular one.
    Thanks for everything though everyone. Here's to hoping.

    to confirm it would have been a phone contract as neither of us have ever used anywhere else, but also, where does it say missed payments? I can't see that anywhere and that wohld only have applied in the instance that it was just ceased to be paid. X

  7. #32
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    Default Re: Lowell/O2/county court business centre claim

    Quote Originally Posted by Diana M View Post
    The O2 Refresh plan which provided two separate contracts: airtime agreement (unregulated) and device plan (CCA Regulated) was launched on 12th April 2013 > https://www.o2.co.uk/termsandconditi...and-conditions

    The OP's agreement was in existence before that date because the POC (post #1) state the debt was assigned to Lowells on 31st January 2013 (assuming that's true of course )

    Therefore the CCA would not apply in this instance.

    Di
    http://news.o2.co.uk/press-release/o...for-consumers/

    O2 lease was in existance from 2011 and was approx £55pm, hence my question if the OP had a business phone (PLEASE NOTE o2 franchise stores had an awful reputation for selling business contracts to consumer customers until about 2 years ago!)

    It is possible that the OP had a lease (subject to a CCA) and had no idea., the outstanding balance therefore would be a non return of phone charge.. and yes it IS chargable as it would be in the t&cs.

  8. #33
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    Default Re: Lowell/O2/county court business centre claim

    Hey!
    to the absolute best of my knowledge it was a normal contract but we've always paid around that amount as we've always had iPhones on contract.
    Currently paying the same amount now each for our phone contracts too. Unfortunately all paperwork pre 2013 is long gone as we've moved a few times after some issues we had during the same period which is why I'm so adamant that this alleged debt is definitely not owed, we had to keep our phone contracts running out of necessity.

  9. #34
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    Default Re: Lowell/O2/county court business centre claim

    We've always kept our phones too and every other contract we'll go to sim only for a term and then when one of us decides we want an upgrade we then go back into a "proper" contract if you will.
    So it has all baffled me from start to finish and although I do feel like they will find some loophole somewhere to have this alleged debt be forced to be repayed but at the same time I know that somewhere they're going to have to prove without any doubt that it is in fact owed and I would really love to see that paperwork.

    currently putting a form in to chase up the postal order I had sent and they claimed to have enclosed (which was said across 4 letters received on different days) because I have a feeling they will use it to make a ghost payment.

  10. #35
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    Default Re: Lowell/O2/county court business centre claim

    The problem both you and O2 face is that they only keep your notes for a maximum of 4 years after you close (or they close) the account.

    Normal process for debt collection is as follows

    14 days- bill
    30 days - reminder

    45 days- 2nd reminder

    60 days - collections letters/assignment to in house debt collection

    120 days - assignment to DCA.

    After that time scale it gets a bit blurry, it can be bought and sold from DCA to DCA and they aren't the best at keeping the original creditor up to date!
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  11. #36
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    Default Re: Lowell/O2/county court business centre claim

    There was at least 7 months between O2 closing the account to Lowell buying it (as per what the letters state).

    Lowell seem to be the most common DCA for our area too so they rarely sell back on. They've sat on this account for over 3 1/2 years now if the details are actually true.

  12. #37
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    Default Re: Lowell/O2/county court business centre claim

    Re your defence para #12(b), it is no longer an offence to be non-compliant with a ss77-79 request.
    http://www.legislation.gov.uk/ukpga/1974/39/section/78
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  13. #38
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    Default Re: Lowell/O2/county court business centre claim

    This template was given out from Rob to Joshb on his thread this February. Didn't feel a need to doubt or double check it but thanks for letting me know.
    its too late to change it so it'll sadly have to stay like that.

    Defence was submitted yesterday.

  14. #39
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    Default Re: Lowell/O2/county court business centre claim

    Update.

    small claims mediation paperwork arrived this morning.

    do I say yes or no to mediation? Etc please.
    many thanks for everything so far everyone.

  15. #40
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    Default Re: Lowell/O2/county court business centre claim

    Generally yes, later on you will get a further form which you can state if you have enough documentation to proceed with mediation, and it's useful to have it in the offing just incase all the evidence turns up and is all correct - so potential for negotiating installment or settlement.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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  16. #41
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    Default Re: Lowell/O2/county court business centre claim

    In my defence my main issue was not enough paperwork to make a clear defence. So I definitely don't.
    The whole issue over how the amount ever came about and whether it's correct.
    so I'm not sure if I should say yes, because down the line I'm going to have nothing to do with?

    - - - Updated - - -

    Have nothing to show with**

  17. #42
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    Default Re: Lowell/O2/county court business centre claim

    TBH it doesn't really matter, just gives you that opportunity to deal with it IF their case suddenly gets stronger ( which you could do anyway directly with the claimant )
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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  18. #43
    m150984's Avatar

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    Default Re: Lowell/O2/county court business centre claim

    Did ou get an outcome on this case, im having a similar experience myself

  19. #44
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    Default Re: Lowell/O2/county court business centre claim

    Hey!
    I’m actually really happy to confirm that I did indeed get a good outcome from this. They discontinued about 4 days before the court date was set because I requested the judge requested all information missing etc and because the judge requested more information in general, they couldn’t provide it. The letter we received did state that although they were comfortable that this debt was true etc they were discontinuing. So after months of stress it was finally over about 2 weeks ago. Since then however I’ve had a new issue crop through regarding payday loans so I’ll be on with fighting that one too & looking to reclaim money from them also! Wish you nothing but the best of luck and my best advice is to be as precise as possible and be persistent. Don’t take it lying down. X

  20. #45
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    Default Re: Lowell/O2/county court business centre claim

    Hello Hatch92

    We are going through exactly the same thing with O2 and Lowell, same letter.
    I sent them a prove it letter as advised and filed a defence of I have no contract with Lowell
    I sent a copy of letter with court papers.
    Lowell replied and said they would not provide evidence, just a copy of letter sent in September
    heard from court today they have till 4th December to provide all evidence requested in prove it letter.
    if they do then we have to put in further defence.
    keep up the fight

    pitbull10

  21. #46
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    Default Re: Lowell/O2/county court business centre claim

    Hey again!

    They said that to me too, couldn’t provide the proof (obviously they didn’t know that I was dealing with all this paperwork for my OH) and it was just a mere waiting game in the end. I’ve been consumed with stress, I won’t deny that. I burst into tears when we got the discontinuance letter. It was so relieving & just felt like my persistence and hard work paid off and it very much did and I don’t believe that debt was ever true and it would have been around £1,000 to pay by the time they had finished adding court costs on left, right and centre.

    Stay strong! Please let me know how you go, I really hope it’s good news for you too!

  22. #47
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    Default Re: Lowell/O2/county court business centre claim

    Im about to do my witness statement. The last letter i got from Lowell Solicitors was a response for some information around the debt which they refused to provide. What did you write to the judge in your case and was this part of your witness statement?

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