Lowell Solicitors issued court claim for credit card

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anti bailiff
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#1 Lowell Solicitors issued court claim for credit card

Post by anti bailiff » 31 Jan 2017 17:59

Hi, am hoping for some advice and help here.

Lowell solicitors sent me a 'letter of claim' over three months ago regarding an alleged debt with Capital One. The letter demanded payment of a principal sum, plus 'estimated' interest, 'estimated' court fees and 'estimated' solicitor costs. The letter demanded that I pay them in full within fourteen days or make arrangements to pay.

Ten days later, I sent them a letter in which I requested 'a true copy' of the alleged agreement between myself and Capital One; a full statement of account; a signed true copy of the deed of assignment; and any other documents referred to in the alleged agreement. I informed them that I understand that a copy of a credit agreement should be supplied within 12 working days.

A few days later, I received a letter acknowledging receipt and claiming that Lowell had requested a copy of the agreement and statements from Capital One. In this letter, Lowell claimed that they would not send me a 'deed of assignment' as 'it is a confidential agreement between our client and the original creditor containing information that you are not entitled to see'.

Several weeks later, a bundle of statements was sent to me which are alleged to be my account statements. They informed me that they were still awaiting the 'agreement' and would send it to me 'in due course'. Perhaps 90% of the total which is claimed owing consists of late payment charges, overlimit fees and cumulative purchase interest. The account has no activity since March 2012 when a payment was made, other than penalty charges and purchase interest.

This morning, I received a copy of the 'credit agreement' from Lowell Solicitors with a demand that I pay them within fourteen days, failing which they 'may' apply for a County Court Judgement.

It becomes more interesting because only a few days ago I received a cheque from Capital One; a refund of Payment Protection Insurance on the account to which Lowell refer. The statements show quite clearly that the money Lowell claim they are owed consists almost entirely of penalty charges.

I am interested to know; are Lowell out of time for failing to provide a copy of the credit agreement within fourteen days of the original request, instead taking three months?
Does the fact that the sum is almost entirely made up of penalty charges rather than money spent and not repaid weaken their case?
Is the fact that Capital One sent me a cheque in repayment of wrongly levied Payment Protection Insurance of any significance?

Is there anything I can do to prevent Lowell from taking me to court and obtaining a CCJ against me?

Many thanks for your help and advice in advance.

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#2 Re: Lowell Solicitors in action over alleged credit card debt

Post by Schedule 12 » 31 Jan 2017 18:37

anti bailiff wrote:
31 Jan 2017 17:59
Hi, am hoping for some advice and help here.

Lowell solicitors sent me a 'letter of claim' over three months ago regarding an alleged debt with Capital One. The letter demanded payment of a principal sum, plus 'estimated' interest, 'estimated' court fees and 'estimated' solicitor costs.
If the sum owed is under £10,000. there are no solicitors fees. There is no such thing as "estimated interest" or "estimated court fees".

Interest is awarded under Section 69 of the Courts and prescribed a statutory rate of 8% a year calculated daily for the date the sum became due until the date the sum is paid.

Court fees cannot be estimated, because they are also prescribed. See court form EX50 and on page 9, it gives the court fees according to the sum being claimed.





The letter demanded that I pay them in full within fourteen days or make arrangements to pay.
That looks like a "letter before action" (LBA). Claimants should not send an LBA unless they intend proceeding with the claim, otherwise it could amount to an abuse of process and the creditor could land costs under CPR 3.4.





Ten days later, I sent them a letter in which I requested 'a true copy' of the alleged agreement between myself and Capital One; a full statement of account; a signed true copy of the deed of assignment; and any other documents referred to in the alleged agreement. I informed them that I understand that a copy of a credit agreement should be supplied within 12 working days.
You only needed to ask them to prove the sum is lawfully owed. The loan contract would suffice.



A few days later, I received a letter acknowledging receipt and claiming that Lowell had requested a copy of the agreement and statements from Capital One. In this letter, Lowell claimed that they would not send me a 'deed of assignment' as 'it is a confidential agreement between our client and the original creditor containing information that you are not entitled to see'.
A deed of assignment is a document conferring the right to claim the money is passed to another. Section 136 of the Law of Property Act 1925 states:


  • 136 Legal assignments of things in action.

    (1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

    • (a)the legal right to such debt or thing in action;

      (b)all legal and other remedies for the same; and

      (c)the power to give a good discharge for the same without the concurrence of the assignor:


    Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice




Once a debt is assigned to another, the assignee has a much more difficult task of recovering it in legal proceedings. All he bought, is the debt. Not the evidence supporting the grounds that it arises.

Therefore Lowell is reliant on an undefended claim and ambushed enforcement.

If you return the Defendants Response Pack to court after ticking the box, I intend to defend all of this claim, the new claimant, Lowell knows its probably game over. They cannot always prove it - unless they acquired the evidence giving rise to the sum owed from the oriignal creditor.



Several weeks later, a bundle of statements was sent to me which are alleged to be my account statements.
That is not sufficient evidence the sum is owed by you.

You asked for a signed contract. If that is not forthcoming, then proving the debt is near impossible.


They informed me that they were still awaiting the 'agreement' and would send it to me 'in due course'.
Park the matter until you have been given it.





Perhaps 90% of the total which is claimed owing consists of late payment charges, overlimit fees and cumulative purchase interest. The account has no activity since March 2012 when a payment was made, other than penalty charges and purchase interest.

This morning, I received a copy of the 'credit agreement' from Lowell Solicitors with a demand that I pay them within fourteen days, failing which they 'may' apply for a County Court Judgement.

You have to wait until they start proceedings. Then defend all the claim. You can defend on the basis you are not the debtor, or you can dispute all or part of it because you did not borrow the money (fees and charges). The latter is risky. Worst case scenario is a judgment. You can vary it to say, £50 a month if you can show that you are unemployed.



It becomes more interesting because only a few days ago I received a cheque from Capital One; a refund of Payment Protection Insurance on the account to which Lowell refer. The statements show quite clearly that the money Lowell claim they are owed consists almost entirely of penalty charges.
I don't know enough about PPI to comment. Ive never been trained on it.


I am interested to know; are Lowell out of time for failing to provide a copy of the credit agreement within fourteen days of the original request, instead taking three months?

No.

Lowell must give "reasonable time" before starting proceedings. There is a limit of 6 years from the date you last acknowledged the liability.


Does the fact that the sum is almost entirely made up of penalty charges rather than money spent and not repaid weaken their case?
No it doesn't.

I would avoid disputing them unless the court has committed to saying you are liable for the sum.


Is the fact that Capital One sent me a cheque in repayment of wrongly levied Payment Protection Insurance of any significance?
No.


Is there anything I can do to prevent Lowell from taking me to court and obtaining a CCJ against me?
Defend it.

If you are not successful in your defence and the claimant asks for judgment to be entered. Ask the judge to make a Tomlin order instead. It has the same enforcement power of a judgment, but there is no entry in the public register of county court judgments.

You should then ask for a variation allowing you to pay in monthly installments. If the judge refuses, then you will need to make an appointment with a debt counselor to review your income and expenditure and make a balance sheet.



Many thanks for your help and advice in advance.
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#3 Re: Lowell Solicitors in action over alleged credit card debt

Post by Pote Snitkin » 31 Jan 2017 19:17

I'm a bit puzzled. Where does this '14 days' come from? The route that is needed is s77-79 of the Consumer Credit Act 1974 where they have 12 days to provide a copy. If they don't then it's defended by part 79 of the Act.

It feels like you've let them off the hook.
On 29/07/17, Compo said "If you are interested I actually typed the word label. My spell checker interpreted it as liable" Discuss.

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#4 Re: Lowell Solicitors in action over alleged credit card debt

Post by Michelle » 31 Jan 2017 20:30

anti bailiff wrote:
31 Jan 2017 17:59
Ten days later, I sent them a letter in which I requested 'a true copy' of the alleged agreement between myself and Capital One; a full statement of account; a signed true copy of the deed of assignment; and any other documents referred to in the alleged agreement. I informed them that I understand that a copy of a credit agreement should be supplied within 12 working days.

A few days later, I received a letter acknowledging receipt and claiming that Lowell had requested a copy of the agreement and statements from Capital One. In this letter, Lowell claimed that they would not send me a 'deed of assignment' as 'it is a confidential agreement between our client and the original creditor containing information that you are not entitled to see'.
You can ask for the notice of assignment, it is unlikely that they would supply you with a copy of the actual deed, certainly not at the pre-court stage.
anti bailiff wrote:
31 Jan 2017 17:59
Several weeks later, a bundle of statements was sent to me which are alleged to be my account statements. They informed me that they were still awaiting the 'agreement' and would send it to me 'in due course'. Perhaps 90% of the total which is claimed owing consists of late payment charges, overlimit fees and cumulative purchase interest. The account has no activity since March 2012 when a payment was made, other than penalty charges and purchase interest.

This morning, I received a copy of the 'credit agreement' from Lowell Solicitors with a demand that I pay them within fourteen days, failing which they 'may' apply for a County Court Judgement.
When did you take out this Cap One card? Was it after April 2007? Is the agreement you received the actual agreement for your card? Or a reconstituted agreement? Would be good if you could post up a suitably redacted copy.
anti bailiff wrote:
31 Jan 2017 17:59
It becomes more interesting because only a few days ago I received a cheque from Capital One; a refund of Payment Protection Insurance on the account to which Lowell refer. The statements show quite clearly that the money Lowell claim they are owed consists almost entirely of penalty charges.
You were quite lucky there, because in some cases, there are buy-back clauses, etc. allowing any redress to be offset from the outstanding amount.
anti bailiff wrote:
31 Jan 2017 17:59
I am interested to know; are Lowell out of time for failing to provide a copy of the credit agreement within fourteen days of the original request, instead taking three months?
It doesn't work that way. The account is, indeed, unenforceable once the 12 + 2 (allowed for service) working days are up, however, once they comply with your request, the account may or may not be enforceable, depending on what they sent you in response.
anti bailiff wrote:
31 Jan 2017 17:59
Does the fact that the sum is almost entirely made up of penalty charges rather than money spent and not repaid weaken their case?
Is the fact that Capital One sent me a cheque in repayment of wrongly levied Payment Protection Insurance of any significance?
You have already received your redress for the PPI so it doesn't affect the outstanding balance. As for penalty charges, that would depend mostly on whether the actual amounts charged correspond with what the terms of the agreement they sent you say about them.
anti bailiff wrote:
31 Jan 2017 17:59
Is there anything I can do to prevent Lowell from taking me to court and obtaining a CCJ against me?
We need to take a look at that agreement. They haven't issued a claim yet and if they did, you could defend it. How much is the outstanding balance?
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#5 Re: Lowell Solicitors in action over alleged credit card debt

Post by Michelle » 31 Jan 2017 20:36

Pote Snitkin wrote:
31 Jan 2017 19:17
I'm a bit puzzled. Where does this '14 days' come from? The route that is needed is s77-79 of the Consumer Credit Act 1974 where they have 12 days to provide a copy.
The 14 days would be the time you have to respond to a letter before action, which is pretty standard and falls under the CPR rather than the Consumer Credit Act. PD pre-action conduct 6(b) states: https://www.justice.gov.uk/courts/proce ... onduct#6.1
(b) the defendant responding within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and
Pote Snitkin wrote:
31 Jan 2017 19:17
If they don't then it's defended by part 79 of the Act.
As per my post above, the account does become temporarily unenforceable after the time to comply with a CCA request lapses, but only for as long as they are in default of your request. S.79 refers to HP agreements, credit cards fall under s.78 of the Act: http://www.legislation.gov.uk/ukpga/1974/39/section/78
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#6 Re: Lowell Solicitors in action over alleged credit card debt

Post by Michelle » 31 Jan 2017 20:55

jasonDWB wrote:
31 Jan 2017 18:37
If the sum owed is under £10,000. there are no solicitors fees.
Solicitors fees are usually added to money claims, that refers to what the claimant pays to the solicitor to issue the claim, not to the full legal costs involved in bringing a claim, which are the costs that have to be awarded by the court separately, as a costs order. Costs are not normally awarded in the small claims track, although there has been the odd exception to the rule. In this case, the solicitors fees would be much lower than the actual costs.
jasonDWB wrote:
31 Jan 2017 18:37
That looks like a "letter before action" (LBA). Claimants should not send an LBA unless they intend proceeding with the claim, otherwise it could amount to an abuse of process and the creditor could land costs under CPR 3.4.
Letters before action are intended to facilitate negotiation and settlement without having to court, in accordance with the Practice Direction I linked to above. They don't have to be followed by a claim, and there's more likely to be a costs penalty for not issuing one than for issuing one and not taking court action. Actually, without court action, there can be no costs order.
jasonDWB wrote:
31 Jan 2017 18:37
You only needed to ask them to prove the sum is lawfully owed. The loan contract would suffice.
It's a credit card.
jasonDWB wrote:
31 Jan 2017 18:37
You asked for a signed contract. If that is not forthcoming, then proving the debt is near impossible.
A signed contract is not required. On Carey v HSBC, it was established that a reconstructed agreement is acceptable: http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html
jasonDWB wrote:
31 Jan 2017 18:37
You have to wait until they start proceedings. Then defend all the claim. You can defend on the basis you are not the debtor, or you can dispute all or part of it because you did not borrow the money (fees and charges). The latter is risky.
Both are risky, if the OP is the debtor and Lowell have produced an agreement to show it, how can he say he's not the debtor? The agreement may not be enforceable, but that's a different matter.
jasonDWB wrote:
31 Jan 2017 18:37
Worst case scenario is a judgment. You can vary it to say, £50 a month if you can show that you are unemployed.
Most people who are unemployed offer just token payments, say, £1 a month, £5 at the most. An individual with an income would offer £50 a month, depending on the judgment amount. It all depends on what your income and expenditure statement shows.
jasonDWB wrote:
31 Jan 2017 18:37
I am interested to know; are Lowell out of time for failing to provide a copy of the credit agreement within fourteen days of the original request, instead taking three months?
No.

Lowell must give "reasonable time" before starting proceedings. There is a limit of 6 years from the date you last acknowledged the liability.
We are talking about three different timescales here:
  • The 12 + 2 days the CCA gives to comply with a CCA request. As above, lack of compliance renders the account temporarily unenforceable, however, they have now complied by sending the agreement.
  • The 6 year limitation period to recover a debt through the courts. In this case, the OP says they acknowledged the debt in 2012, so not statute barred till 2018
  • The time allowed before starting proceedings, that's where the 14 days to respond to a letter of claim come in, as per the PD I quoted above.
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#7 Re: Lowell Solicitors in action over alleged credit card debt

Post by Pote Snitkin » 31 Jan 2017 21:39

My error on the 78/79 slip.

What Michelle has written is why I'm saying it feels like Lowells have had a let off. If the LBA was ignored and a MCOL was started, then s77 of the CCA could've been used, giving them 12 days to produce a copy of the CA. Once they failed to do so then you file that as your defence. If Lowells then came up with a copy some time later then tough, legislation says otherwise.
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#8 Re: Lowell Solicitors in action over alleged credit card debt

Post by anti bailiff » 17 Feb 2017 10:47

Thanks for all the responses to my original post.

I have now received a claim form from the county court. They have demanded the full amount plus 'legal representative's costs', plus interest from the date of assignment limited to one year.

Some time ago I asked them to furnish me with evidence of assignment of the alleged debt, in the form of a copy of the Deed of assignment, and this they refused to provide.. or, for that matter, any other evidence that they 'own' the alleged debt.

I intend to fight them over this if I can. There are other elements to this case apart from their failing to furnish any evidence that they 'own' the alleged debt. Lowell took to telephoning my very elderly father at his home (a different address to mine), calling him several times. The calls only ceased after I answered his telephone when visiting him and informed them that unless they stopped telephoning him, I would sue them for harassment. The calls caused him alarm and distress, and he was admitted to hospital; he went from there to a nursing home and never returned to his own home.

In addition to fighting this case, I would like to take action against Lowell for harassment of myself and my late father. The organisation's business methods are despicable. They are parasites who buy debt at maybe 10% of its face value and then attempt to enrich themselves by harassing alleged debtors and their relatives for the full amount, to the point at which they will take people to court.

I'm not sure how I should handle this. Any advice very much appreciated.

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#9 Lowell Solicitors issued court claim for credit card

Post by Michelle » 17 Feb 2017 11:12

Your first step should be to acknowledge the claim, it is very important to do this within 14 days or else they can request default judgment against you. For now you will be acknowledging but not submitting a defence yet. You can find a step-by-step guide here: http://www.repository.forumwars.co.uk/c ... o-a-claim/

Once you acknowledge the claim, you have 28 days from the date printed on the claim form to submit a defence. Five extra days are allowed for service of the claim, giving you a total of 33 days. It's very important to keep to these deadlines or they can request default judgment.

Your second step should be to fire a CCA request to Lowell. They will have to respond in 12 working days (+ 2 extra allowed for service). They won't be able to comply within this timescale and that should be a good start for you, although they can still comply later on. The account will be unenforceable as long as they are in default of this request. See attached CCA request letter template.
CCAAssignedUE.docx
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#10 Lowell Solicitors issued court claim for credit card

Post by Michelle » 17 Feb 2017 11:25

anti bailiff wrote:
17 Feb 2017 10:47
Some time ago I asked them to furnish me with evidence of assignment of the alleged debt, in the form of a copy of the Deed of assignment, and this they refused to provide.. or, for that matter, any other evidence that they 'own' the alleged debt.
In addition to the CCA request posted above, you should also send a request for the documents they intend to rely on for their claim, pursuant to CPR 31.14. See attached template letter. Please be aware that only documents mentioned in the particulars of the claim can be requested using this letter. It would be a good idea if you could post up a redacted version of the particulars of claim and also the text of the letter you intend to send before you send it. They should respond to this letter within 7 days. Lowell never do, simply because they haven't got the documents. That, in itself, isn't fatal to their case, however, it should help your defence if the other side refuse to evidence their claim. Once the 7 days are up, you can also ask them to agree to an extension of time to file your defence.
CPR31_14Request.docx
anti bailiff wrote:
17 Feb 2017 10:47
I intend to fight them over this if I can. There are other elements to this case apart from their failing to furnish any evidence that they 'own' the alleged debt. Lowell took to telephoning my very elderly father at his home (a different address to mine), calling him several times. The calls only ceased after I answered his telephone when visiting him and informed them that unless they stopped telephoning him, I would sue them for harassment. The calls caused him alarm and distress, and he was admitted to hospital; he went from there to a nursing home and never returned to his own home.

In addition to fighting this case, I would like to take action against Lowell for harassment of myself and my late father. The organisation's business methods are despicable. They are parasites who buy debt at maybe 10% of its face value and then attempt to enrich themselves by harassing alleged debtors and their relatives for the full amount, to the point at which they will take people to court.
In Roberts -v- Bank of Scotland the Court of Appeal awarded damages for harrassment against RBS. The case was brought as a civil claim under section 1 (1) of the Protection from Harassment Act 1997. It should be noted that, in this case, they had kept a log of all the phone calls by the creditor. According to reports in this case over 500 calls were made to this customer within two years. This is the case: http://www.bailii.org/ew/cases/EWCA/Civ/2013/882.html
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