Lowell obtain county court judgement in default

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anti bailiff
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#1 Lowell obtain county court judgement in default

Post by anti bailiff » 28 Jun 2017 15:36

Hi

I have received a county court judgement in default, in today's post from the bulk centre in Northampton. The judgement relates to a debt which Lowell have failed to demonstrate they own. I received no claim form or any other documentation from the court prior to this. Lowell corresponded with me some months ago and failed to provide any proof that they owned this alleged debt, despite this being requested.

Would I be right in completing a form N244 and stating that I did not receive the court claim form? I would like this judgement set aside.

It is despicable that an outfit like Lowell can obtain a CCJ against someone with no proof that they own the alleged debt.

All suggestions gratefully received.

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#2 Re: Lowell obtain county court judgement in default

Post by Schedule 12 » 28 Jun 2017 16:17

If you do an N244 application, then you must pass a 3-limb test, as shown here:
  • 1. You have a reasonable prospect of a defence, all of it or just part of it.
    2. You acted in reasonable promptness after becoming aware of the judgment
    3. You were not aware of the original debt when it arised.
If you can show you were not given a hearing date, or the address is wrong, then your application might succeed. Otherwise, I think (others are more informed than me) that section 136 of the Law of Property Act enables a debt to be reassigned to another person to recover by legal proceedings for their own benefit.

I think Lowell may have bought the debt under section 136, but that doesn't prevent you disputing the original date with the original company.
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#3 Re: Lowell obtain county court judgement in default

Post by Pote Snitkin » 28 Jun 2017 16:30

What was the original debt?
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#4 Re: Lowell obtain county court judgement in default

Post by Michelle » 29 Jun 2017 18:35

anti bailiff wrote:
28 Jun 2017 15:36
Hi

I have received a county court judgement in default, in today's post from the bulk centre in Northampton. The judgement relates to a debt which Lowell have failed to demonstrate they own. I received no claim form or any other documentation from the court prior to this. Lowell corresponded with me some months ago and failed to provide any proof that they owned this alleged debt, despite this being requested.
What kind of proof did you request? Did send a CCA request? Ask for a notice of assignment?
anti bailiff wrote:
28 Jun 2017 15:36
Would I be right in completing a form N244 and stating that I did not receive the court claim form? I would like this judgement set aside.
You say Lowell were corresponding with you a few months ago, have you moved since then?
anti bailiff wrote:
28 Jun 2017 15:36
It is despicable that an outfit like Lowell can obtain a CCJ against someone with no proof that they own the alleged debt.

All suggestions gratefully received.
As you say, the judgment was obtained in default, simply because you failed to respond to the claim. There is no need for proof to obtain a default judgment. It is possible to apply for the judgment to be set aside if you can show that, in addition to not receiving the claim, you have a solid defence. Most of the debts bought by Lowell are regulated by the Consumer Credit Act (although they've also been known to buy mobile contracts). Was this for a credit card or bank loan? If so, did you send a CCA request to Lowell? Non compliance with a request under ss77/79 of the CCA is a bar to enforcing the debt and should be good enough to apply for set aside, provided you did send such a request.
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#5 Re: Lowell obtain county court judgement in default

Post by Pote Snitkin » 29 Jun 2017 19:35

Michelle wrote:
29 Jun 2017 18:35
Most of the debts bought by Lowell are regulated by the Consumer Credit Act (although they've also been known to buy mobile contracts).
I do know that DCA's will also back down if you use the CCA defence for mobile contracts.
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#6 Re: Lowell obtain county court judgement in default

Post by Schedule 12 » 29 Jun 2017 21:14

I've not seen a debt collector get away with a defended claim on a purchased debt.

The same with these private parking tickets business that has recently mushroomed. They seem to rely on undefended claims, and quickly move on when the defendant's response pack is completed saying the claim is being defended, or the defendant address is a long way from the firm bringing the claim.
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#7 Re: Lowell obtain county court judgement in default

Post by Michelle » 29 Jun 2017 21:48

Pote Snitkin wrote:
29 Jun 2017 19:35
Michelle wrote:
29 Jun 2017 18:35
Most of the debts bought by Lowell are regulated by the Consumer Credit Act (although they've also been known to buy mobile contracts).
I do know that DCA's will also back down if you use the CCA defence for mobile contracts.
There could be two reasons for that:
1) Ignorance, as the people who churn out template letters and read the responses haven't got a clue
2) Some newer mobile contracts are in two parts: one is for the service which does not fall under the CCA, the other for the device itself which is a credit agreement.

However, as most mobile contracts already sold to DCAs are oldish, 1) would be the main reason.
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#8 Re: Lowell obtain county court judgement in default

Post by Pote Snitkin » 29 Jun 2017 22:27

More than likely. I just know that it seems to work. That said, I would say that the second reason has applied to mobile contracts for at least 10 years.

Whatever the reasons, it's the way to go with these DCAs.
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#9 Re: Lowell obtain county court judgement in default

Post by Michelle » 30 Jun 2017 14:42

Pote Snitkin wrote:
29 Jun 2017 22:27
More than likely. I just know that it seems to work. That said, I would say that the second reason has applied to mobile contracts for at least 10 years.

Whatever the reasons, it's the way to go with these DCAs.
I don't think it's as long as that, although it probably depends on the mobile company. Technically it can get a bit tricky. If the customer ends the contract early, then obviously the device itself hasn't been fully paid for, however, if the unpaid bill is just for calls and data, that refers just to the service part. Many people with unpaid mobile bills incurred huge roaming charges and were often unaware of them.
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#10 Re: Lowell obtain county court judgement in default

Post by anti bailiff » 03 Jul 2017 13:32

Hi, thanks for all the responses.

It relates to an old alleged credit card debt. I say alleged, because the sum claimed consisted entirely of interest and penalty charges.

I didn't receive a claim form from the court, to which I could respond. I have not moved house. If I had received a claim from the court, I would have defended the claim. I did send a CCA request to Lowell, and they failed to provide me with any proof that they had been assigned the alleged debt. In fact, they positively refused to provide evidence; they were asked to provide the Deed of Assignment and they refused to do this.

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#11 Re: Lowell obtain county court judgement in default

Post by Michelle » 03 Jul 2017 17:19

anti bailiff wrote:
03 Jul 2017 13:32
Hi, thanks for all the responses.

It relates to an old alleged credit card debt. I say alleged, because the sum claimed consisted entirely of interest and penalty charges.

I didn't receive a claim form from the court, to which I could respond. I have not moved house. If I had received a claim from the court, I would have defended the claim. I did send a CCA request to Lowell, and they failed to provide me with any proof that they had been assigned the alleged debt. In fact, they positively refused to provide evidence; they were asked to provide the Deed of Assignment and they refused to do this.
The CCA request is a request for a copy of your original credit agreement, i.e. the credit card agreement you initially had. Debt buyers will always argue they don't have to produce the deed of assignment which is a commercially sensitive document relating to transactions that do not involve the debtor. They should, however, provide a notice of assignment. If you were not provided with either document, then you could use this in your defence. S.78(6)(a) of the Consumer Credit Act says:
(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
where subsection (1) says:
(1)The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
If they did not respond to your CCA request, they would be in breach of s.78(1) and, as per s.78(6)(a), are not entitled to enforce the agreement. That means if you had received the claim in question, you would have been able to defend it on those grounds.
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#12 Re: Lowell obtain county court judgement in default

Post by Pote Snitkin » 03 Jul 2017 17:27

It has to be done in writing though Michelle. If the OP asked by phone then they can deny it. I've used this in the past:
  • [Your name & address]


    [Date]
    [Ref numbers]

    Dear sir/madam

    Regarding the case reference numbers above please send to me at the address given above copies of the following documents:

    - the signed credit agreement
    - a statement of the account including payments and charges
    - the default notice
    - the transfer notice of the account

    I understand that under the Consumer Credit Act 1974 (sections 77-79), I am entitled to receive a copy of any credit agreement and a statement of account when I request it. I enclose a payment of £1 which is the fee payable under the Consumer Credit Act 1974.

    I understand this information should be supplied within 12 working days.

    I understand that, under the Consumer Credit Act 1974, creditors are unable to enforce an agreement if they fail to comply with the request for a copy of the agreement and statement of account.

    If you are unable to supply a copy of the information requested please confirm this matter is closed.

    I look forward to hearing from you.

    Yours faithfully

    [your name only, don’t sign]
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#13 Re: Lowell obtain county court judgement in default

Post by Michelle » 03 Jul 2017 17:52

Yes, of course has to be done in writing, and, as stated in the Act, accompanied with the £1 fee. When someone says they sent a CCA request, it's assumed that a proper written request had been sent. Maybe the OP can clarify whether that was the case.
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#14 Re: Lowell obtain county court judgement in default

Post by anti bailiff » 04 Jul 2017 12:40

Hi

Thanks for your replies.

I did write to them in response to a letter from them (not a court summons) and requested a copy of the CCA agreement from them, plus proof of assignment via the Deed of assignment. They responded to say that they would respond in due course. Several months passed and they provided what looks like a copy of the CCA, but they have provided no evidence that the alleged debt was assigned to them.

As far as the court case is concerned, I did not receive any notice from the court of a hearing date; only this CCJ. I have printed off a copy of a form N244 and am ready to fill it out. From what I can see, I will be asking the court, in section three, to make an order setting aside the judgement against me. Should I do this on the grounds that I did not receive the court summons?

Thanks

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#15 Re: Lowell obtain county court judgement in default

Post by Michelle » 04 Jul 2017 13:49

anti bailiff wrote:
04 Jul 2017 12:40
I did write to them in response to a letter from them (not a court summons) and requested a copy of the CCA agreement from them, plus proof of assignment via the Deed of assignment. They responded to say that they would respond in due course. Several months passed and they provided what looks like a copy of the CCA, but they have provided no evidence that the alleged debt was assigned to them.
Would it be possible to remove your personal details and post up a picture of what looks like a copy of the CCA? Also what kind of credit card was this and when did you take out the card? The devil's in the detail.
anti bailiff wrote:
04 Jul 2017 12:40
As far as the court case is concerned, I did not receive any notice from the court of a hearing date; only this CCJ.
You should have received a claim form from the Northampton Business Centre to start with, rather than a hearing date. In civil cases like this, that comes much later.
anti bailiff wrote:
04 Jul 2017 12:40
I have printed off a copy of a form N244 and am ready to fill it out. From what I can see, I will be asking the court, in section three, to make an order setting aside the judgement against me. Should I do this on the grounds that I did not receive the court summons?

Thanks
Not receiving the court summons is just part of the grounds, the other part concerns your defence, hence the questions above. In addition to the N244, you also need to attach a draft order (what you seek the court to order), a draft defence and a witness statement for a successful application.
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#16 Re: Lowell obtain county court judgement in default

Post by Tony72 » 04 Jul 2017 15:59

Hi Michelle

It seems since another forum was closed after it was sold to IVA providers , many people are left in limbo after sending letters requesting documents they are not necessarily entitled to see.

I think the likes of Lowell see them coming and are issuing claims left right and centre thinking people have no place to go. Nice to see they have and are not just being told to pay up and make an instalment plan or to start dumpster diving and cancel sky

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#17 Re: Lowell obtain county court judgement in default

Post by anti bailiff » 05 Jul 2017 13:20

Hi Michelle

This is what they sent me. It relates to a credit card and the account was opened in late 2004.

I received no hearing date, or a claim form, so was unable to defend myself.

In terms of filing a defence, I would have argued on one or all of these points;

A) Lowell failed to provide me with any evidence that this alleged debt had been assigned to them despite being asked to provide it

B) There is no capital sum outstanding. The alleged debt is made up entirely of interest and penalty charges, which should and indeed were covered by PPI (which Capital One had included in its contract with me, refused to acknowledge when I lost my job through ill health and has in the last few months acknowledged by paying me a cheque refunding my PPI contributions)

C) I may have a counterclaim against Capital One and Lowell for harassment under the provisions of the Protection from Harassment Act 1997, as a result of the number of telephone calls made by them to me (3-4 a day for a year) plus Lowell's harassment of my elderly and frail father by telephone (I did not live at the same address as him, my telephone number is different from his); a small number of calls on a daily basis which caused him alarm and distress which led to his being admitted to hospital; he never returned home from then until he passed away.
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#18 Re: Lowell obtain county court judgement in default

Post by anti bailiff » 05 Jul 2017 13:29

Sorry the file hasn't come out right. Here it is..
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#19 Re: Lowell obtain county court judgement in default

Post by anti bailiff » 06 Jul 2017 14:00

I have also looked at my credit file today and discovered that Lowell increased the amount they claim I owe them by £115 in March this year. This was done in advance of the judgement, which was made in June according to the paperwork I have.

This does not strike me as being lawful in any way. They have effectively added on costs and interest prior to a court case, effectively presuming the outcome of that case. Is there anything I can do about this?

My credit file also shows up default entries going back to June 2013. I would like to have these removed as a) they relate only to interest and penalty charges and b) interest and penalty charges should not have appeared on the account as it was covered by PPI.

Can you help me and suggest what I should do? I intend to defend this but want to make sure my arguments in favour of having the CCJ set aside are the correct ones, correctly worded to satisfy the court that my request to have judgement set aside should be accepted.

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#20 Re: Lowell obtain county court judgement in default

Post by Viking » 06 Jul 2017 14:42

Another key document they needed to enforce a CCA Agreement that was in genuine default, is a valid CCA s87(1) Default Notice ("DN") that you failed to remedy within the Prescribed time allowed starting from the date of Service upon you (almost certainly 14 full days after that day). A DN is a Statutory pre-condition of enforcement of any CCA Agreement in default, so Lowell would need that before embarking upon the Claim to show that the Court has the power to grant what Lowell wanted. Without a valid DN, enforcement is prohibited.

If PPI is an issue, then you may also have scope to argue that an Unfair Relationship existed.

If you have not already done so, maybe send both Lowell and also Capital One a Data Subject Access Request ("DSAR") under s7 of the Data Protection Act 1998. The Statutory fee is £10 (maximum), and it may tease out some useful documents (or show a lack of them). DSARs can take a while, because they are allowed 40 calendar days from when the DSAR is Served upon them (starting on the day after Service), but get those in ASAP, and it might give you two more strings to your bow even if this won't appear that quickly. Send via Recorded Delivery to the Registered Office of each Company, addressed to The Company Secretary and/or The Data Protection Officer. Also allow for postage when coming back, so the actual time is more like 40+2 days.

Your task now is to gather the evidence, so check loft, garden shed and/or cellars for any old papers you may have, Statements, letters etc.

HTH

Viking

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#21 Re: Lowell obtain county court judgement in default

Post by Michelle » 06 Jul 2017 17:10

Is that the only page they sent you? Because I see no sign of any terms, that cannot be a compliant credit agreement under the CCA. There are a number of prescribed terms that any agreement should contain, and there are none there, so I'd say that doesn't satisfy your s.78 request.
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#22 Re: Lowell obtain county court judgement in default

Post by Michelle » 06 Jul 2017 17:18

Viking wrote:
06 Jul 2017 14:42
Another key document they needed to enforce a CCA Agreement that was in genuine default, is a valid CCA s87(1) Default Notice ("DN") that you failed to remedy within the Prescribed time allowed starting from the date of Service upon you (almost certainly 14 full days after that day). A DN is a Statutory pre-condition of enforcement of any CCA Agreement in default, so Lowell would need that before embarking upon the Claim to show that the Court has the power to grant what Lowell wanted. Without a valid DN, enforcement is prohibited.

If PPI is an issue, then you may also have scope to argue that an Unfair Relationship existed.

If you have not already done so, maybe send both Lowell and also Capital One a Data Subject Access Request ("DSAR") under s7 of the Data Protection Act 1998. The Statutory fee is £10 (maximum), and it may tease out some useful documents (or show a lack of them). DSARs can take a while, because they are allowed 40 calendar days from when the DSAR is Served upon them (starting on the day after Service), but get those in ASAP, and it might give you two more strings to your bow even if this won't appear that quickly. Send via Recorded Delivery to the Registered Office of each Company, addressed to The Company Secretary and/or The Data Protection Officer. Also allow for postage when coming back, so the actual time is more like 40+2 days.

Your task now is to gather the evidence, so check loft, garden shed and/or cellars for any old papers you may have, Statements, letters etc.

HTH

Viking
They have up to 40 days to comply with a SAR and that would delay the application for set aside quite a lot, the court would take into account this fact. Also bear in mind that it is very unusual to get a copy of the actual DN sent at the time of defaulting on the account, because DNs are usually mail merged using a template letter and a number of accounts from the database, they are sent straight to print without being saved as individual files, neither as hard copies nor electronically, as DNs for a number of defaulters would be issued all at the same time. In the majority of cases, where a "copy" of a DN is supplied, it would be just the template used by the creditor, which wouldn't contain the key detail such as the dates and time provided to remedy the breach. People who have been successful in using defective DNs to defend their claims have been those who kept hold of their own copies.

Sending a SAR to Lowell wouldn't do much good, as debt purchasers buy accounts in bulk without any paperwork regarding the account, hence the need to go back to the original creditor to request any documents. I would say a SAR should only go to the original creditor except in very specific circumstances.

I would also say that the set aside application should be submitted promptly and the s.78 issue is a good starting point for a draft defence
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#23 Re: Lowell obtain county court judgement in default

Post by Viking » 06 Jul 2017 17:55

WRT DSARs, I'm not saying do this in the hope of getting them back in time for the Set Aside Application, but I am saying send both anyway, because one never knows what might just get sent back as part of a DSAR. It's not something that should be dismissed as pointless. It's just a tool to use, and a damned good one sometimes. Something tasty may pop out that might arrived ahead of any Hearing, or before any re-Trial.

The Agreement above was a pretty informal signature document that Capital One was in the habit of using around that time, and it was usually sent after someone sent off an Application or otherwise requested a Card.

This was usually sent out just ahead of the Card being issued, so was a final stage signature document, that was not at all CCA compliant because, as far as I am aware, there was nothing on the reverse of that, and they sent no Terms with it, but it's nevertheless what Capital One used to think was a compliant CCA Agreement!

I have heard that some were just photocopies to meet the demand, so one-sided only, but I cannot prove that. I did get one myself around this time (2004) and did sign one, but do not recall if it was a photocopy or not, and although I keep good records, I only have the copy of the single page, so I am as certain as one can be that there was nothing else (or else I would have copied the rear and/or would have retained any Terms sent with it).

Note the two fold lines.

The Terms that they later sent when people made CCA s78(1) requests, that they wanted people to believe was on the reverse of this thing, have no fold lines, so clearly not two sides of the same document, albeit they will say this is enough to satisfy the CCA s78(1) request because it might have been two sides of the same basic document, not necessarily two sides of the very one signed by "anti bailiff".

However, Capital One, as far as I know, do not seem to have any evidence that they did send Terms out with this thing, so Capital One will say it was what they would've done, and hope a Judge will accept that.

I'd challenge that anyway, and put them to strict proof that this thing had something else on the back, or that it was ever sent with any Terms...because there is no real evidence that anything was on the back (or was sent with it).

If there are no Prescribed Terms, then the thing does not comply with CCA s61(1)(a) making it improperly executed so requires a Court Order to enforce because of CCA s65(1), but the Court cannot do that because of CCA s127(3)...which was still in force in 2004! anti bailiff said it was an old Card from late 2004 "It relates to a credit card and the account was opened in late 2004" so CCA 127(3) still has teeth for older Agreements, even now.

HTH

Viking

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#24 Re: Lowell obtain county court judgement in default

Post by Viking » 06 Jul 2017 17:58

I wonder if anti bailiff has kept the original CCA s87(1) Default Notice, that's if one was ever sent of course.

Viking

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#25 Re: Lowell obtain county court judgement in default

Post by Michelle » 06 Jul 2017 22:45

Yes, I'm familiar with s.127(3), as I've made 1000s of posts about unenforceability on various forums over the past 8 years, however, we must be careful using that argument, as the OP will have to make an assertion to the fact that he didn't sign any agreement containing the prescribed terms, and this would require an explanation as to how he knows/remembers this to be the case. Successful 127(3) defences have involved saying that they filled in a form in a magazine where there was an ad on the other side, having filled in a short form such as a leaflet in branch and receiving the T&Cs later with the card carrier, having applied in a supermarket when approached by a credit card company rep or even at the airport, being told to apply for a credit card while performing an every day transaction in branch and parked on double yellow lines, etc. There were many cases where people didn't sign an agreement containing all the prescribed terms, but the OP will need to remember the circumstances and be able to express them with confidence at a hearing. In these cases, the agreement would be irredeemably unenforceable.

In contrast, s.78 breaches can be remedied at any time by producing a copy or suitable recon of the agreement, however, as it stands at the moment, the document supplied does not satisfy the requirements of s.78 and the OP sent the request prior to the claim being issued, so this should be enough as a starting point for a set aside application. Even if the terms had been on the other side of that page at the time of the application, the fact that they were not sent in response to the CCA request means the request was not satisfied. It also means the breach could be remedied, but then you have to know what you are saying if you are going to go down the 127(3) route. I know someone who has won 3 or 4 times in court using 127(3), but the person in question is a) a very credible witness b) very organised in her paperwork (including copies of DNs) and c) has had legal representation to assist her every time.
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#26 Re: Lowell obtain county court judgement in default

Post by Viking » 07 Jul 2017 01:09

OK, taking a step back, the Claimant is a Debt Purchaser, who has managed to wangle a default Judgment against the OP, as they do.

If all Lowell sent to the OP was just that "Credit Agreement" with no Terms whatsoever, then they have not complied with CCA s78(1), so enforcement was not possible because of CCA s78(6) - it was a Credit Card (AKA Running Account Credit), so CCA s78 applies.

That should help to get the Set Aside, because this failure to comply with the CCA wasn't remedied before Judgment. It's too late to do that now, but next time out ahead of any re-Trial, they may well try to fix that. Thus, CCA s78(6) may get the Set Aside, but may not nail the re-Trial.

This is now a game of Poker Face, and the OP has to line up Phase 2, which is to show he also had, and still has, a credible Defence.

That Agreement is similar to thousands that Capital One churned out around then, and the signature page that they sent out was all by itself (no matter what they may try to claim now), so CCA s127(3) is on the Cards. That doesn't mean the OP will get home via that, but that's not the point, he/she must present Lowell with a well structured and awkward multi-layered Defence, to make them go away and pick on a softer target.

The DN issue is another line of attack, as is the PPI angle if missold such that it can be argued that abuse led to a default that may not have happened had they not been loading the Account with PPI and then, presumably, late payment fines. That could take the OP into unfair relationship territory, and cause Lowell to wrap their grasping hands in, and call it a day.

The DSARs are to hopefully tease out some additional tasty material that can help to pull together a robust Defence before a re-Trial.

But if the OP is not comfortable with fighting this, then he/she will need help, or may need to weigh up the risks. I don't know the sums involved here, but if low, then Lowells will not want to waste money on a credible Defended Claim. If more substantial sums are involved, and they smell assets or income to grab, then they might be willing to fire a Barrister at this, and then it starts to get more serious because they all use the prospect of mega Costs as a major weapon of choice to intimidate.

I don't know the OP, so I agree that this is all academic unless the OP is willing to fight. All we can do is suggest possible lines of Defence.

I think we are on the same wavelength.

Viking

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#27 Re: Lowell obtain county court judgement in default

Post by Viking » 07 Jul 2017 10:00

Just picking up on a few things the OP has said:
It relates to an old alleged credit card debt.
anti bailiff, do you know when you last made any payments to this Account? Asking this because if it's over 6 years 1 month from the date that Lowell presented the Claim to Court (which can be slightly earlier than the date the Claim was issued), then the purported debt could have been Statute Barred via the Limitation Act 1980.

The key dates are when you last paid and/or when you went a month overdue. This is because the 6 years is from when the cause of action accrued, so its NOT always from the date of last payment as many think. It starts from when Capital One acquired a right to to start the enforcement process, which is usually after a monthly payment has been missed. Count 6 years from that, and see if the Claim was dated well after that (to allow for a slight difference between Claim date and date that the Court received the paperwork, which can be a day or so earlier).

I did note this:
My credit file also shows up default entries going back to June 2013. I would like to have these removed as a) they relate only to interest and penalty charges and b) interest and penalty charges should not have appeared on the account as it was covered by PPI.
2013 would not be long enough to get to Statute Barred, but the key is not when they started reporting late/non-payments, its the key date range I mention above, so try and check statements and statements of accounts used to pay them, to see if you can see when you last paid, then calculate from there.
B) There is no capital sum outstanding. The alleged debt is made up entirely of interest and penalty charges, which should and indeed were covered by PPI (which Capital One had included in its contract with me, refused to acknowledge when I lost my job through ill health and has in the last few months acknowledged by paying me a cheque refunding my PPI contributions)
That sounds like the PPI was useless and didn't pay out when needed, such that Capital One had to refund it recently (no doubt after the recent behind the scenes pressure from the FCA that has seen quite a few PPI refunds appear out of the blue even before people asked for it).

This could indeed be a line of attack via the CCA Unfair Relationship provisions. The original unfairness with PPI misselling raises questions about the Agreement from day one.
C) I may have a counterclaim against Capital One and Lowell for harassment under the provisions of the Protection from Harassment Act 1997, as a result of the number of telephone calls made by them to me (3-4 a day for a year) plus Lowell's harassment of my elderly and frail father by telephone (I did not live at the same address as him, my telephone number is different from his); a small number of calls on a daily basis which caused him alarm and distress which led to his being admitted to hospital; he never returned home from then until he passed away.
That's also into Unfair Relationship territory as well.

Capital One were well known for bulk telephone harassment, and that issue can upset any re-Trial if you get a decent Judge.

Lowell tend to buy a lot of Capital One debts, and when they do, they'd often send out two letters from their own address, one a Notification of Assignment on Capital One letterhead paper, and another from them, on their own letterhead. Both printed on the same printer, at the same time! But that is allowed, and should represent a valid Notice of Assignment ("NoA") under s136 of the Law of Property Act 1925...if they sent it that is!

So, was there a NoA?

Without proof of sending that, Lowell could not take action in Court because they would not be the CCA Creditor until a NoA is Served.

The DSARs may tease that out, but they will come back later, this is about what can be done to present a Defence ready to show that the Set-Aside should be granted, and that any re-Trial can be Defended.

The NoA issue could also be pivotal because Lowell has many Companies, and they mix and match as if it makes no difference, but it does, the Assignee has to be the same Company as the one that Filed the Claim, but look carefully at the letters and any NoA, and I bet there are at least two Companies involved. Check that they have not pitched into the Claim using the wrong Company.

HTH

Viking

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#28 Re: Lowell obtain county court judgement in default

Post by anti bailiff » 14 Jul 2017 15:48

Hi

Thanks for all the comments.

When I fill out the N244, should I list all the reasons why I think the judgement should be set aside? These are:

1) I did not receive the claim form and had no opportunity to defend the case

2) I have not received evidence of assignment of the alleged debt to Lowell's despite requesting it; in fact they refused to provide it

3) The sum alleged comprises interest and penalty payments

4) I had a PPI policy in place which should have covered these, as evidenced by the fact that Capital One paid a PPI refund last year, and the existence of a PPI should have prevented the interest and penalty charges from being incurred

5) The CCA is not compliant as it was just that 'credit agreement'

6) Lowells harassed my father by telephone on several occasions; he was 87 and lived at a separate address from me. The calls caused him stress and anxiety which led him to go into hospital; he never returned home.

Should I itemise all these items on the N244, or save some for any later events such as a court hearing?

The 'Unfair Relationship' aspect looks interesting. Could someone help and explain what it means?

Thanks for your help.

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#29 Re: Lowell obtain county court judgement in default

Post by anti bailiff » 14 Jul 2017 15:54

I have dug around and found some paperwork; the default notice was issued in November 2011 and the last payment to the account was made in March 2012 and a default notice issued in Nov 2011. I guess that places it all within the 6 year statute limit?

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#30 Re: Lowell obtain county court judgement in default

Post by Michelle » 14 Jul 2017 19:44

anti bailiff wrote:
14 Jul 2017 15:54
I have dug around and found some paperwork; the default notice was issued in November 2011 and the last payment to the account was made in March 2012 and a default notice issued in Nov 2011. I guess that places it all within the 6 year statute limit?
Unfortunately that's the case, if a payment was made in March 2012, we're still within 6 years. The default notice is an interesting find, is there any chance of you posting up a redacted copy, having removed any personal details?
Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.

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#31 Re: Lowell obtain county court judgement in default

Post by anti bailiff » 17 Jul 2017 11:41

Hi Michelle

Thanks for your comment.

Should I set out all the reasons I have listed above on the N244 as grounds for having the CCJ set aside?

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#32 Re: Lowell obtain county court judgement in default

Post by Michelle » 17 Jul 2017 14:25

Could you post up a redacted copy of the default notice, removing all personal details? Will be interesting to see what it says.
Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.

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#33 Re: Lowell obtain county court judgement in default

Post by anti bailiff » 17 Jul 2017 16:55

Hi Michelle

This is the default notice (both pages)
You do not have the required permissions to view the files attached to this post.

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#34 Re: Lowell obtain county court judgement in default

Post by Michelle » 17 Jul 2017 21:26

A bit of a technicality, but the default notice is supposed to give you an actual DATE as opposed to just "28 days".

This is as per s.88 of the CCA:
Contents and effect of default notice.

(1)The default notice must be in the prescribed form and specify—

(a)the nature of the alleged breach;

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;
Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.

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#35 Re: Lowell obtain county court judgement in default

Post by anti bailiff » 18 Jul 2017 12:40

Thanks Michelle

It is pretty shabby, isn't it?

I'd like to get my N244 off today. Should I list all my reasons for having the CCJ set aside on the N244?

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