court claim form through from Lowell

hi there, so glad I found this place, since GOODF seems to have been taken over...

So, sometime last year I started the three letter process with Lowell, not long after sending letter 2, I was sent a letter threatening court if i didn't pay within 14 days, shortly after this they responded to letter 1, providing the default notice, and statements from the account, but in this letter, they told me, there was no original agreement available from the OC...
I did respond to this, saying that they were in breach of the fca rules particularly Failure to comply [with a request for a copy agreement]
CONC 13.1.6 G 02/11/2015

So now over a year later, I have received a court claim form, looking for some advice on what to do with this?

I have acknowledged service with the intention to defend, but where do i go from here?

Any help would be greatly appreciated, and I hope this post is ok, wasn't sure where to post it after i found the site..

booyah wrote:hi there, so glad I found this place, since GOODF seems to have been taken over...

So, sometime last year I started the three letter process with Lowell, not long after sending letter 2, I was sent a letter threatening court if i didn't pay within 14 days, shortly after this they responded to letter 1, providing the default notice, and statements from the account, but in this letter, they told me, there was no original agreement available from the OC...
I did respond to this, saying that they were in breach of the fca rules particularly Failure to comply [with a request for a copy agreement]
CONC 13.1.6 G 02/11/2015

So now over a year later, I have received a court claim form, looking for some advice on what to do with this?

I have acknowledged service with the intention to defend, but where do i go from here?

Any help would be greatly appreciated, and I hope this post is ok, wasn't sure where to post it after i found the site..

What's the original debt for? When did they issue the claim?

Tiggy wrote:

booyah wrote:hi there, so glad I found this place, since GOODF seems to have been taken over...

So, sometime last year I started the three letter process with Lowell, not long after sending letter 2, I was sent a letter threatening court if i didn't pay within 14 days, shortly after this they responded to letter 1, providing the default notice, and statements from the account, but in this letter, they told me, there was no original agreement available from the OC...
I did respond to this, saying that they were in breach of the fca rules particularly Failure to comply [with a request for a copy agreement]
CONC 13.1.6 G 02/11/2015

So now over a year later, I have received a court claim form, looking for some advice on what to do with this?

I have acknowledged service with the intention to defend, but where do i go from here?

Any help would be greatly appreciated, and I hope this post is ok, wasn't sure where to post it after i found the site..

What's the original debt for?  When did they issue the claim?

It's for a store card, it was issued on the 27th November

Tiggy wrote:

booyah wrote:hi there, so glad I found this place, since GOODF seems to have been taken over...

So, sometime last year I started the three letter process with Lowell, not long after sending letter 2, I was sent a letter threatening court if i didn't pay within 14 days, shortly after this they responded to letter 1, providing the default notice, and statements from the account, but in this letter, they told me, there was no original agreement available from the OC...
I did respond to this, saying that they were in breach of the fca rules particularly Failure to comply [with a request for a copy agreement]
CONC 13.1.6 G 02/11/2015

So now over a year later, I have received a court claim form, looking for some advice on what to do with this?

I have acknowledged service with the intention to defend, but where do i go from here?

Any help would be greatly appreciated, and I hope this post is ok, wasn't sure where to post it after i found the site..

What's the original debt for?  When did they issue the claim?

After re-reading, i think you meant the amount of the debt xD

it's a little over 200 pound

No it was what the debt was for. You need to send two documents out - first a CPR 18 - Request for Further Information, this goes to their Solicitors if they are using them.

Secondly and the most important is the request under the Consumer Credit Act for a copy of the agreement. This has to go to Lowell themselves along with the £1 fee.

Then you have to prepare your defence to be with the Court 33 days from the date they issued the claim.

Don't forget to include copies of requests you've made and any responses you've received.

Tiggy wrote:No it was what the debt was for.  You need to send two documents out - first a CPR 18 - Request for Further Information, this goes to their Solicitors if they are using them.

Secondly and the most important is the request under the Consumer Credit Act for a copy of the agreement.  This has to go to Lowell themselves along with the £1 fee.

Then you have to prepare your defence to be with the Court 33 days from the date they issued the claim.

Don't forget to include copies of requests you've made and any responses you've received.

I'll get those sent out today.

Defense wise, am I just explaining the situation, and telling them I have made a CPR 18 request for more information, as well as the request for the agreement?

do i need to mention anything along the lines of, I don't recognise Lowell as the owner of the debt?

As you can probably tell I haven't been through this before

booyah wrote:

Tiggy wrote:No it was what the debt was for.  You need to send two documents out - first a CPR 18 - Request for Further Information, this goes to their Solicitors if they are using them.

Secondly and the most important is the request under the Consumer Credit Act for a copy of the agreement.  This has to go to Lowell themselves along with the £1 fee.

Then you have to prepare your defence to be with the Court 33 days from the date they issued the claim.

Don't forget to include copies of requests you've made and any responses you've received.

I'll get those sent out today.

Defense wise, am I just explaining the situation, and telling them I have made a CPR 18 request for more information, as well as the request for the agreement?

do i need to mention anything along the lines of, I don't recognise Lowell as the owner of the debt?

As you can probably tell I haven't been through this before

You can use this as a template - modify as required

Tiggy wrote:

booyah wrote:

Tiggy wrote:No it was what the debt was for.  You need to send two documents out - first a CPR 18 - Request for Further Information, this goes to their Solicitors if they are using them.

Secondly and the most important is the request under the Consumer Credit Act for a copy of the agreement.  This has to go to Lowell themselves along with the £1 fee.

Then you have to prepare your defence to be with the Court 33 days from the date they issued the claim.

Don't forget to include copies of requests you've made and any responses you've received.

I'll get those sent out today.

Defense wise, am I just explaining the situation, and telling them I have made a CPR 18 request for more information, as well as the request for the agreement?

do i need to mention anything along the lines of, I don't recognise Lowell as the owner of the debt?

As you can probably tell I haven't been through this before

You can use this as a template - modify as required

Awesome, thank you Tiggy, sorry to be a pain, but I'm struggling to find a CCA request template, I have found the CPR18 form.

Any ideas where I can find this?

Request under s.78 Consumer Credit Act 1974

Dear Sirs
Re: Account / Reference Number: xxxxx / xxxxx

With reference to the above agreement, I require that you provide me a true copy of the credit agreement.

I am aware that section 78(1) of the Consumer Credit Act 1974 sets out clearly what is required to comply with my request and quote “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it”. For clarification I require a copy of the agreement, any terms and conditions from the time when the agreement was executed, the current terms in force or in the alternative the notices of variation of each term as approved in Carey v HSBC Bank Plc and a copy of the cancellation notice if the agreement refers to “Your Right to Cancel” within it. I also require a statement as laid out also within section 78(1)(a-c). If there weren’t any terms and conditions then please confirm this in your response.

I am entitled to receive the information on request. I enclose a payment of £1.00 per account, which represents the fees payable under the Consumer Credit Act 1974. This request is a statutory request and should not be construed as any acknowledgment or payment towards any account.

I understand that Consumer Credit (Prescribed periods for Giving Information) Regulations 1983 (SI 1983/1569) at Regulation 2 sets out the required time frame for compliance with this request as being 12 working days from receipt.

In the event that you do not consider yourselves the “creditor” I direct you to s189 Consumer Credit Act and the leading case of Jones v Link Financial Ltd [2012] EWHC 2402 (QB) (22 August 2012) which confirms that assignees of an account are the creditor and must comply with statutory duties.

In accordance with the new FCA guidance, if the copy of the executed agreement is reconstituted, then I expect you to confirm this is the case and to confirm what steps were taken to provide this reconstitution as set out in the FCA handbook CONC 13.1.4 (2).

I look forward to hearing from you
Yours faithfully

Tiggy wrote:Request under s.78 Consumer Credit Act 1974

Dear Sirs
Re: Account / Reference Number: xxxxx / xxxxx

With reference to the above agreement, I require that you provide me a true copy of the credit agreement.

I am aware that section 78(1) of the Consumer Credit Act 1974 sets out clearly what is required to comply with my request and quote “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it”. For clarification I require a copy of the agreement, any terms and conditions from the time when the agreement was executed, the current terms in force or in the alternative the notices of variation of each term as approved in Carey v HSBC Bank Plc and a copy of the cancellation notice if the agreement refers to “Your Right to Cancel” within it. I also require a statement as laid out also within section 78(1)(a-c). If there weren’t any terms and conditions then please confirm this in your response.

I am entitled to receive the information on request. I enclose a payment of £1.00 per account, which represents the fees payable under the Consumer Credit Act 1974. This request is a statutory request and should not be construed as any acknowledgment or payment towards any account.

I understand that Consumer Credit (Prescribed periods for Giving Information) Regulations 1983 (SI 1983/1569) at Regulation 2 sets out the required time frame for compliance with this request as being 12 working days from receipt.

In the event that you do not consider yourselves the “creditor” I direct you to s189 Consumer Credit Act and the leading case of Jones v Link Financial Ltd [2012] EWHC 2402 (QB) (22 August 2012) which confirms that assignees of an account are the creditor and must comply with statutory duties.

In accordance with the new FCA guidance, if the copy of the executed agreement is reconstituted, then I expect you to confirm this is the case and to confirm what steps were taken to provide this reconstitution as set out in the FCA handbook CONC 13.1.4 (2).

I look forward to hearing from you
Yours faithfully

Got a response to my CPR 18 request. They've sent me the default notice, statements of the account, and have reaffirmed that the original creditor is unable to provide a copy of the agreement.

There was a mess up with Royal mail when I sent the CCA request to Lowell though, so I had to resend that this week, so no response to that so far, but I'd imagine I'll just get told again they cannot get hold of a copy of the agreement.

What's the best way to proceed now?

Have you submitted your defence yet, you had 33 days from date of issue to submit it.

Tiggy wrote:Have you submitted your defence yet, you had 33 days from date of issue to submit it.

I have not yet submitted my defence, I was hoping to get a response which could be used in my defence, which is what I have now. The cpr18 request was only received by Lowell solicitors a couple days ago (at least that's what the tracking says) if I'm not mistaken I have a week left to submit my defence, which I was going to do online, and send any responses along with requests I have made by special delivery once royal mail opens back up, the defence I'm not going to risk getting lost in the post at this time of year so that I will submit online with a mention of the documents I sent by post.

I wanted to give them a reasonable time to respond to my request before submitting my defence, but if they hadn't responded by today my plan was to just submit it, now I feel like I should add in about this response, so it may be a good thing, that I waited.

Unless me waiting this long is a bad thing?

The problem is that the mcol is notoriously temperamental, you're restricted to 1400 words and it doesn't allow attachments.

Tiggy wrote:The problem is that the mcol is notoriously temperamental, you're restricted to 1400 words and it doesn't allow attachments.

Ah, that sucks, well, I believe royal mail are back up and running on the 27th, with guaranteed next day delivery (the more expensive option) it should (emphasis on should) arrive by the 28th, so there may still be hope for getting this in on time.

Anything in particular you'd suggest saying about the response I received? I have mentioned the response in my defence as well as last year's response, and quoted the FCA rules on not providing requested information (not sure if this is going to actually be relevant)

And if I remember right from the old forum, someone had mentioned part of the consumer credit act which was also in regard to failure to provide the agreement upon request, but I have no idea what part and can't seem to find anything along those lines online.

If it's a credit card or catalogue, then You make the request under S78.1 of the CCA (paying the £1 fee), if they can't provide it then under S78.6 it's unenforceable against you.

Tiggy wrote:If it's a credit card or catalogue, then You make the request under S78.1 of the CCA (paying the £1 fee), if they can't provide it then under S78.6 it's unenforceable against you.

That request has been sent with a postal order for the £1 fee, this was the letter that got lost in the post and I had to resend this week. Is it worth keeping the bit about the FCA rules that they are in breach of, if they don't supply the agreement, or is this irrelevant to the court?

booyah wrote:

Tiggy wrote:If it's a credit card or catalogue, then You make the request under S78.1 of the CCA (paying the £1 fee), if they can't provide it then under S78.6 it's unenforceable against you.

That request has been sent with a postal order for the £1 fee, this was the letter that got lost in the post and I had to resend this week. Is it worth keeping the bit about the FCA rules that they are in breach of, if they don't supply the agreement, or is this irrelevant to the court?

It's not really relevant to the Court, what's important are Sections 78.1 & 78.6 of the Consumer Credit Act.

Tiggy wrote:

booyah wrote:

Tiggy wrote:If it's a credit card or catalogue, then You make the request under S78.1 of the CCA (paying the £1 fee), if they can't provide it then under S78.6 it's unenforceable against you.

That request has been sent with a postal order for the £1 fee, this was the letter that got lost in the post and I had to resend this week. Is it worth keeping the bit about the FCA rules that they are in breach of, if they don't supply the agreement, or is this irrelevant to the court?

It's not really relevant to the Court, what's important are Sections 78.1 & 78.6 of the Consumer Credit Act.

Had a letter from Lowell solicitors with a copy of their Directions Questionnaire, I take it this means they are going through with the claim?

Still no response to the CCA request i sent to Lowell though

booyah wrote:

Tiggy wrote:

booyah wrote:

Tiggy wrote:If it's a credit card or catalogue, then You make the request under S78.1 of the CCA (paying the £1 fee), if they can't provide it then under S78.6 it's unenforceable against you.

That request has been sent with a postal order for the £1 fee, this was the letter that got lost in the post and I had to resend this week. Is it worth keeping the bit about the FCA rules that they are in breach of, if they don't supply the agreement, or is this irrelevant to the court?

It's not really relevant to the Court, what's important are Sections 78.1 & 78.6 of the Consumer Credit Act.

Had a letter from Lowell solicitors with a copy of their Directions Questionnaire, I take it this means they are going through with the claim?

Still no response to the CCA request i sent to Lowell though

It might mean they are going through with it or it might mean they are just trying to scare you- who knows. It doesn't cost them anything to send a DQ

Next step will be you receive a DQ from the court and fill it in

I would agree to mediation and to the Small claims track with 1 witness (you)

Hey, I know I may be leaving this a bit late, but I've been very ill recently
I've had a call from the mediation people, who I informed (as I already did on the DQ) that I do not have enough information to proceed with mediation.
Still no sign of the credit agreement, but I did receive a letter from Lowell while I was ill stating that they have requested the information from the OC, which I find very unusual as they have told me three times before this that they cannot get the agreement.
I'm wondering what I can do from here? The mediation team said that I have about a week to decide to mediate, if I receive the information.

Would it be at this point where its worth applying for a stay?

Edit: to clarify, the letter they sent me was around a month ago, where they said they were requesting the documents.

Applying for a stay just gives them more time to locate the agreement as they can apply at any point for the stay to be lifted and proceedings to continue.

You could apply for an unless order (ie unless they produce the agreement within 14 days the claim will stand to be stuck out etc etc) but if the application fails you could be liable for their costs.

If you do nothing and let the claim proceed and they don't locate the agreement either they'll discontinue OR the Judge hopefully, will find for you and dismiss the claim.

Ah okay, that makes sense. I mean, they've had a month to get the agreement, I don't know about the usual timescales involved, but that seems like it's a long enough time for them to get the agreement, so it may actually be the safest option to just hold on and see what happens from here.

booyah wrote:Ah okay, that makes sense. I mean, they've had a month to get the agreement, I don't know about the usual timescales involved, but that seems like it's a long enough time for them to get the agreement, so it may actually be the safest option to just hold on and see what happens from here.

There's risks either way, apply to get it struck out and you risk getting it wrong and being stuffed for costs, or let it run it's course and you risk the original creditor supplying the agreement.

I guess only you can decide which way you want to go.

Assuming that if they find the agreement, they send it over to me first, I'd be more than willing to settle out of court, although it's probably very unlikely that they will send it to me first.
I'll see what happens, should be fun

booyah wrote:Assuming that if they find the agreement, they send it over to me first, I'd be more than willing to settle out of court, although it's probably very unlikely that they will send it to me first.
I'll see what happens, should be fun

They would have to send it to you, anything to be used at a final hearing has to be served at least 14 days in advance.

You have the option of settling out of court right upto (and sometimes during) the final hearing.