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Lowell taking me to court, please help!

Amas-san asked:

Hi Guys,

Having read numerous posts I can see you’ve been a really great help to many people and was hoping you have a lil bit left In you to help me 🙂 the general issue is that Lowell are seeking to claim a total of 2300 pounds from a mobile phone contract. I ignored all there claims as the main issue was regarding Vodafone who were being very unreasonable. Refused me to make any payments I a reasonable time frame (1 week) then proceeded to cancel a newly renewed contract at a high rate that I had not used for a month. Attempts with Vodafone to resolve this were futile they didn’t want to know.

Now Lowell are coming after me with this substantial debt. I have received a court summon form Northampton business centre and am now really panicking. I haven’t sent the acknowledgment yet I was hoping to get some guidance first. The court letter was sent on the 19th January (date on the letter)

Really would appreciate your support

Kind regards

Amas

Tiggy replied:

The problem you have here is that mobile phone contracts aren’t covered by the Consumer Credit Act so as a consequence are more difficult to defend against.

If you intend to defence I would suggest you Acknowledge Service with the Intention to Defend – has to be done within 14 days of the service date – then start researching the Consumer Rights Act 2015 and Unfair Consumer Contract Terms Regulations 2015.

williams2583 replied:

you can see why people love PAYG

Amas-san replied:

Tiggy, in your opinion with my situation and what I have told you do I stand any chance? I’m more worried about receiving a CCJ than anything is there anything I can do to avoid that?

Amas-san replied:

williams2583, absolutely!!! I’ve been a PAYG fanboy since this issue arose years ago!

Tiggy replied:

If you’re concerned about a CCJ you can always make an offer to settle out of court.

If you do mark it without prejudice – save as to cost.

Amas-san replied:

Ok I see so how would I go about doing that? Would I still need to send the acknowledgment to court (do I have enough time to settle out of court?). Mainly because I don’t feel confident that I will win against them in court then will have to pay aswell as being given a CCJ. I’m starting to worry more so now.

Would you mind running me through the process of settling out of court?

Many thanks

Tiggy replied:

Acknowledge service of the claim, make sure you submit a form of defence, then if they proceed with the claim you either wait and use the Court mediation service or you contact lowell’s Solicitors direct.

If you don’t acknowledge service or submit a defence they’ll get a Judgement against you by default.

They’ll draw up what’s known as a Tomlin Order, which you agree to and which will be lodged with the Court, effectively staying all proceedings whilst you abide with the order.

Amas-san replied:

Awesome thanks Tiggy I will do so and I’ll keep you all posted on how it goes.

Wish me luck!

Kind regards

Amas-san replied:

Okay so I have submitted the acknowledgement of service form. Can I get any advice on how to write up my defence? Is there anything that inshouldnwrite to Lowell to produce as evidence? I don’t have any of the correspondence from them anymore as it was years ago and had since moved from that address.

Any and all help would be appreciated guys.

Many thanks

williams2583 replied:

suggest you peruse Tiggys and Celicas posts where you will find examples,then when ready post yours for comments

Amas-san replied:

You must forgive me but as a first timer I’m not very experienced. But reading through some of the posts as suggested, having now sent the acknowledgment form would my next move be to send a cpr18 letter requesting for details of the particulars stated on the court summons? If so can I just use a standard template to do so?

williams2583 replied:

yes

Amas-san replied:

Hi guys,

So I’ve had a look thought some other forums where you have helped others out and found this template for the CPR18 letter. I’ve drafted the template below. Is this sufficient? is there anything I should omit or add. As mentioned before I’m a newbie at this stuff, but I do think my time is running out as I submitted the Acknowledgement of service form on the 03/02/3017 am I right in my understanding that I have 14 days from then to file a defence?

Dear Sirs,

Re: (Claimant’s name) v (Your name) Case No:

CPR18 Request for further information.

On the 19th of January 2017, 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.

“Prior to the issue of proceedings I had delivered a request for the production of the Agreement referred to in the Particulars of Claim, and on which you intend to rely. That request was ignored.”
(Not to sure about the paragraph on top as I haven’t sent them anything yet)

Please treat this letter as my request made under CPR18 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim and is made by way of Service upon You:

1.The agreement, including the specific Terms at the point the alleged Agreement was made and any subsequent changes. 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 originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.
2.The deed of assignment
3.The notice of assignment
4.The default warning letter
5.The default notice

6. I deny any indebtedness to the Claimant but particularly deny they are due statutory interest on the alleged amount of £xxx.xx and as such I request full disclosure of the amount the Claimant alleges to have paid for this alleged debt.

7. Also, your Particulars of Claim state the action is brought for Breach of Agreement, yet you have failed to identify the specific Statutory Instrument you have commenced proceedings under. Therefore, I would be request details of the Statutory Instrument under which you have brought proceedings.

You should ensure compliance with your CPR 18 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Failure to produce each and every document referenced within the Particulars of Claim (detailed above) will result in an Application to the Court for an Order of Disclosure.

Your CPR 18 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 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 versions to include an obligation to recover and preserve such versions, which are now in the possession of a third party.

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.

Yours faithfully

Tiggy replied:

You have 28 days from the service date of the claim form to submit your defence.

Amend the CPR18 to suit your circumstances.

Amas-san replied:

Okay letter is amended and ready to mail first thing tomorrow by recorded delivery. My 28 days end on the 19th February assuming it’s 5 days after the claim form was sent that you use as the service date. I have a few questions around this though.

1) will it do its job given the time frame is quite short? Do they have to have 7 days to,respond?

2) what would I put in my defence as by the time I have to submit a defence they (claimant) may have not written back to me in response to CPR18 letter.

I think I’m panicking a bit

Amas-san replied:

Ok guys,

So the CPR18 has been sent.

it’s time to start working on the defence. I’m finding it a bit difficult as I cant put anything about the notice and deed of assignment or contract as of yet as I have not yet received a reply from the DCA. Any support here would be appreciated.

Kind regards

Amas

williams2583 replied:

notice you should get and in fact should have been advised when the debt was sold on. The Deed you will not get although they must produce it in court as it shows how little they paid for the debt (circa £115),both can be inserted in your defense.

Amas-san replied:

Thanks williams2583,

I’ll get to writing my defence, am I okay to post the contents of my defence in here before I send it off for any final suggestions and amendments. I appreciate all the time and effort you guys have put in to help me with a problem I created. if all is good and well I’d send you each a box of chocolates after this has all been done and dealt with lol.

Amas-san replied:

So Lowells sent me a reply to my CPR18 letter, basically:

1. they need not provide me with a copy of the Agreement or default notice as its not covered by the CCA.

2. Will not send me a deed of assignment as its confidential between their client and the original creditor.

3. No other agreement or deed of novation exists between me and their client

4. sent me a copy of a notice of assignment from Vodafone (no letter head) and another letter from Lowell (no letter head again, not sure if it’s an e-mail or what)

I’ve attached pictures of the documents up for your viewing pleasure. In writing my defence is their anything further I can include with this new information?

Regards

Amas-san replied:

Just becoming a bit anxious as the time limit for my defence submit is the 19th any support is always a beam of bright hopeful light

Tiggy replied:

Really sorry, but I don’t have a template defence for a mobile phone / service contract claim. Don’t know if anyone else has, you could look at Faljay’s Dealing with a Court Claim thread.

Amas-san replied:

No worries Tiggy, thanks for the help. But do you think I have a defence as they have not complied with my cpr18. No agreement has been produced and just non letter headed documents. Still no proof of them purchasing the debt either. If they cannot produce these in court I think that may help me out a little.

Trying to stay positive. Will look into common law and see if there is anything about unfair agreements that can support me as they stipulate a early cancellation fee of 800 + pounds. Similarly they say agreement entered in February 2011 but termination was 24 months afterwards. The contract was up finished before defaulting. I chose not to receive an upgrade handset but rather reduced the line rental instead after the 24 months were over.

williams2583 replied:

They dont need to produce an agreement as most are done electronically and they can show your usage,however if you feel the amount is unfair thats what you need to defend so get your evidence together to support that

Amas-san replied:

Okay, so what I’m gathering from what your saying is that they do not need to prove I had an agreement at all, also they do not need to prove they own the debt? Kind of seems like there is no hope battling this then. My argument then if anything at all would have to do with the amount that is owed as I feel it’s unfair? Isn’t that something that I would have to dispute with Vodafone and not the DOA? I thought late cancellation charges were unfair under the unfair terms in consumer contracts regulations?

Just because most are done electronically means they can uphold an agreement that I have not seen, or signed. They didn’t send me anything written when I opted to continue with the line rental. Now I’m really confused on how and what to even write in the defence. Anyone know any forums where this has been done. It is a tricky one.

Tiggy replied:

They are claiming an absolute assignment of the debt, which effectively means they have replaced the original creditor in the agreement, so If you believe the contract had unfair contract terms, then that must form your defence against the claim.