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Everything posted by gazbo34

  1. Thanks for the replys guys and gals, been working away for 2 days in the middle of nowhere with no internet so only just managed to read them. Think i'll just wait and see what there next move is,and then if they start becoming annoying i'll send them the SB letter and wait to see what rabbits they try and pull out of the hat !!!! Sunderland1 - yeah ive just re read your thread,shows you just how sneaky and underhand these DCA's can be, fingers crossed the end is in sight:-D
  2. Hi Guys and Gals, I'm back again and dealing with my favourite DCA !!!! Quick bit of background info : - Approx Jan 14 I won a SD hearing against BW Legal (acting for Lowells) due to lack of CCA and other paperwork etc- although I was that made up to win I forgot to ask for my costs which still annoys me to this day !!!!!! move forward to May 2015 and I received through the post a letter ( copy below) from BW Legal with an attached copy of my CCA ( which they couldnt find 18 months ago) and advising that they wanted to find an amenable solution to recover the outstanding sums. I was to get back to them within 2 weeks with my proposal or they will consider court action with no further notice. This seemed a bit too polite for them and got me wondering why ??? So I dug out all my SAR paperwork and found out that no payments have been made on this account for over 6 years. So got a couple of queries:- Is it still 6 years for a debt to become statue barred ?? Do I notify them of this or just ignore their letters ? Do I have to prove that its SB or is it up to them to prove that it isn't ? As usual, any help greatly appreciated Gazbo
  3. If you've done a SAR request to Lloyds then it will probably be that as when I sent my SAR request that's how it arrived ( All 5 reams if it !!!!)
  4. Hi Guys and Gals, Got a quick one for you :- Am in the process of selling my house, should be done and dusted in the next 2/3 weeks and this will clear the mortgage and leave a bit of spare I have had a quick look at my mortgage account and have approx £2K of charges on my mortgage account (No contact fees, Arrears management fees, Arrears letter fees etc ) going back over a 4 year period, so can I claim these charges back and if so is it possible to do so if the mortgage has been payed off ?? Any help appreciated Gazbo
  5. Here's a run down of how the day went:- Arrived at court and checked in at reception where I was told Lowells solicitor would like a chat with me. He came over and introduced himself and informed me he was self employed and didnt work directly for Lowells but had been asked to represent them. He then told me that they had not been able to produce any paper work and as such they would be withdrawing the stat demand, I asked if this would be in writing and he said that we would still go before the judge but it would be just to confirm the stat demand withdrawl and then to sort costs out. I thought this is going well until he informed me that it wasnt my costs he wanted to sort out but Lowells, as they had instructed him to ask for £102 in their costs for his attendance. At this point I became unamused !!!! we had a bit of a discussion re dates of service and CCA requests etc and decided to agree to disagree and leave it up to the judge. Off we went into court , just a small room with the judge and the 2 of us , Lowells solicitor started off explaining they wanted to withdraw the stat demand due to lack of papework and that they would like to ask for their costs (I was watching the judge at this point and noticed the look of surprise on his face). Lowells explained that because they had sent me the account on hold for 60 days letter, a week before I had filed my set aside, there was no need for me to file a set aside so they considered that the hearing was my fault so I should pay their costs. The judge then explained to me in laymans terms that the stat demand has been withdrawn and asked me if I had any comments re Lowells asking for costs. I told him that Lowells could have withdrawn their stat demand at any time before the hearing and saved the cost of sending someone and also that they were well aware that I wanted to see documentation relating to the agreemant,fees etc. He then asked me why I had filed my set aside so I told him that after reading around the web and advice from this forum , I had decided to file my set aside within the required 18 day time period as I was worried that if ,after the 60 days Lowells had said they would put the account on hold for, they then found the CCA and other paperwork I had requested then they could argue that I hadnt filed my set aside within the required time frame. Lowells solicitor argued that this would be unlikely as they had written to me to confirm a 60 day hold period but the judge agreed with me and said that there was no scope within the insolvency act to extend the 18 day deadline to file a set aside. I was that excited to win on these points that when he asked me straight after this if I had suffered any losses I replied No without thinking :Cry:. The judge then advised me that the stat demand had been set aside but this might not be the end of the matter as Lowells may decide to go down a different route to try and collect the debt. So that was my day in court, nowhere near as intimidating as I thought it would be although got that carried away winning my point on their costs I forgot to ask for mine !!!!!!!! Sorry its long winded but really annoys me when people post on here for help and advice and then on the day of the hearing you never see another post from them and they cant even be bothered to update people how they got on. As mentioned in my earlier post donation has now been made and once again I would like to thank everyone for their help and input :grouphug: Cheers Gazbo
  6. Update Time :- :whoo::whoo::whoo: Stat demand set aside, will put more info up later but a big thx for all help and advice received. Goes without saying that another donation is on its way to the forum Gazbo
  7. Off to court so fingers crossed, will advise how i get on later Quick double check, is it ma'am or madam if its a female judge?
  8. Well tomorrow is the big day and have currently got information overload !!!! Have bullet pointed what I intend to rely on with no CCA being the main one but in case they do pull a rabbit out of their hats have some other points too !!! 1) Failure to comply with s78 request 2) No statements to show how the sums said to be payable are due and if theirs any PPI and/or excessive charges 3) No valid default notice in the prescribed form was sent 4) No notice of assignment has been correctly served 5) 2 c/cards were amalgamated onto this account so CCA request for them 6) Clearly there are triable issues due to lack of proper documentation 7) Reference to Mr Justice Warren and Judge Boggis 8) Read up on Waksman Judgement (Carey v HSBC) in case they bring a reconstituted copy If any one can think of anything ive missed feel free to give me some reminders Cheers Gazbo
  9. Quick bit of advice needed re costs, do i need to hand/fax them into court tomorrow (day before my hearing) or as I mentioned costs in my set aside can I just take them with me ? As always, any help/advice appreciated Gazbo
  10. Hi guys and gals, If anyone can have a look over the following and let me know what you think :- Costs For Set Aside Application Case No xxx Rate Claimed Litigant in Person rate of £18.00 / hour Travelling Costs HMRC Approved Mileage Rate of 40p / mile 1) Time spent identifying,researching and understanding relevant legislation. Time spent identifying,researching and understanding relevant case law. Time spent preparing set aside and defence arguments. 18 hours = £324.00 2) Time spent attending court to file set aside 1.30 hours = £ 27.00 3) Loss of day’s wages for attending court on 14.01.14 £ 80.00 4) Traveling costs for return journey to court 2 x 9 miles £ 7.20 Total £438.20 Do I need to add any notes and make any mention of case law eg, Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) and Mr Justice Warrens comments ? Do I just hand them in at the court and is it still 3 copies needed ? Thx in advance Gazbo
  11. Update time Hadnt heard from the court so called in on Friday, was told they had sent me a letter out in early December and that my set aside hearing is now confirmed for the 14th January (Good job i Checked !! ) As usual ive got a couple of questions !!!!! Not heard from Lowells if they have found my CCA, do they have to inform me if they have found a copy of it as stated in one of their previous letters or can they just turn up at the set aside with it ? I havn't currently found a payment that is more recent than 6 years ( although still got over 2 reams of paperwork to get through !!! ) Can I ask Lowells to prove that the debt isnt SB and if so should I set it in motion now or at the set aside ? After going through some of my old paperwork ive noticed that when Lloyds opened this C/Card they closed and amalgamated 2 of my old c/card accounts and the outstanding balances were transferred onto this new c/card so can I ask for the CCA's for these 2 old accounts ? After going through some old statements have found a load of fees and charges, can i add interest onto them ( if so is it still 8% APR on the compound interest spreadsheet) ? What are the going rates for a LIP , how do you calculate an imdemnity award value and do they need to be at the court beforehand or do I take them with me ? Thats it for now, am off to start reading up again onS78's etc etc As usual any help or advice is greatly appreciated Gazbo
  12. Hi sunderland1, just popping over to wish you and the ex good luck for tomorrow.
  13. Hi sunderland1, good luck with your set aside tomorrow (got my fingers crossed for you) keep me updated how you get on, gonna pop over and have a read of your thread now
  14. Update time :- Not heard from the court yet but did get a letter off BW today (dated 20/11/2013) which has a case number and hearing date and time and attached is a Notice of Acting (new one on me!!!) Will keep you all updated Gazbo
  15. Cheers ericsbrother, will keep you updated as and when i hear anything else Gazbo
  16. Hi guys and gals, Got a quick one for you :- Working in the southport area today and lent my car to one of my lads to pop into the town centre for some grub and bits and bobs. He comes back looking rather sheepish with an excel "Parking Charge Notice" in his grubby little hand !!!! He had parked in an Iceland car park with a 1 hr pay and display machine, paid his £1 for the maximum permitted 1 hours parking and yep, youve guessed it got back to the car 20 mins late to find the notice on the car. Just after some advice, is it worth paying them or after reading around ignore them and wait and see if they go for court action and defend it ? As usual any help or advice is greatly appreciated Gazbo
  17. Update time :- Filed my set aside last week and woke up this morning to a letter from the court and i'll paraphrase here but the gist is :- We've received your set aside and you wont be given a date immediately, it will first be referred to a district judge, if he/she considers your application shows no cause for setting aside it may be dismissed and you will be informed. If the district judge does not dismiss your application on this 1st consideration you and the judgment creditor will be sent a time and date when the application will be reconsidered. So i will let you know when i hear something. Cheers Gazbo
  18. Hi citizenB, Thanks for the prompt reply, am hanging fire as requested Gazbo
  19. Finally finished my set aside so would be grateful if any one fancies having a look at it and pointing out any where I may have cocked up!!! Got a bit messed up on my dates so I need to get it into court tomorrow As usual any help is appreciated Gazbo 1) The defendant totally disputes the debt The claimant alleges that I am indebted to it in the sum of £***** being the amount outstanding under a financial agreement. It is further alleged that the debt was assigned to the respondent from a Lloyds TSB agreement to Lowell Portfolio. I submit that the statutory demand should be set-aside upon the following grounds: - 2) I believe that the claimants use of a statutory demand is trite law and merely a scare tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of process. I believe the claimant will not turn up to court to defend this demand and it is the defendants contention that use of the insolvency laws as a debt collection tool is an abuse of the insolvency Rules. The claimant's letter accompanying the statutory demand included an invitation to offer part settlement or reduced settlement by means of installments. (Part of attachment "A") 3) The alleged creditor has failed to provide a copy of the consumer credit agreement that contains the prescribed terms. Under section 78 (1) of the Consumer Credit Act a formal written request for a true copy of a signed consumer credit agreement was sent to Lowell Portfolio via first class post on the 23/09/13 and was received by them on 24/09/13 (attachment "B") - After waiting the required 14 day period, Lowell Portfolio were sent via recorded delivery a leter (attachment "C") advising them they were in breach of Section78 (6) of the Consumer Credit Act. On 22 October 2013, Lowell Portfolio replied (attachment "D") stating that they had received my formal section 77/78 request on the 24th September 2013 and had requested the documentation required and as such would place the account on hold for 60 days. To date they have still not sent any copies of the agreement. The Consumer Credit Act in section 78(6) states that: - (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; It must also be noted that the agreement must contain the prescribed terms. Consumer Credit Act 8.2 What if prescribed terms are missing or incorrect? s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor. If therefore any of the prescribed terms are missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order. (N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation.) REFERENCE TO CASE LAW: - As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that: `...the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement.... was unenforceable. The statutory bar on its enforcement extended to First County Trust's right to recover the total sum payable on redemption, which included the principal as well as interest` SUMMARY OF WILSON v FIRST COUNTY LTD (2003) UKHL40 The Wilson case made it clear that in the event of no acceptable Consumer Credit Agreement then the creditor could not recover monies owed under ordinary contract law regardless of weather they could prove the debt existed or not (This was the decision of The House Of Lords) 4) (a) The alleged creditor has failed to provide any Default notice in the prescribed form. It is denied that any Default notice in the prescribed format was ever received and the Defendant puts the claimant to strict proof that said document in the prescribed format was delivered to the defendant. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 of the Consumer Credit Act 1974.Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement, therefore without a valid default notice the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974. (b) Notwithstanding the above, failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119. 5) The alleged creditor has provided no statements as to how the sum of £***** was reached it not being uncommon for debts to be made up entirely of excessive penalty charges. 6) The alleged creditor has failed to serve a Notice of Assignment in accordance with section 136(1) of the Law of Property Act 1925 which requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor. Section 196(4) of the Law of Property Act 1925 prescribes the requirements for giving sufficient notice by post:- s196. Regulations respecting notices. (4) Any notice required or authorised by this Act to be served shall also be sufficiently served if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. It is noted that by Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded or special delivery). 7) For the assignment of a debt to be effective and so giving the Respondant a right of action, a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to S196(4) before court action is commenced. It is denied that any Notice of Assignment was served on me and so the Respondant has no right of action. It is noted that the claimant has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served. 8) In view of the matters pleaded above and that not all reasonable steps were taken by the Claimant before taking this action, the applicant avers that the service of the Statutory Demand is demonstrably intimidatory and an abuse of process. Judge Boggis QC – RE AWAN – [2000] BPIR 241 `In my judgement, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly` Accordingly, I respectfully request that the Statutory Demand be set aside and I kindly ask that the court award my costs in this matter as a Litigant In Person. I also request that the court consider making an indemnity award in light of the upset and inconvenience that this has caused my family and me. In support of this request I would refer the court’s attention to the authority of the High Court in the case of: - Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) In this case Mr Justice Warren confirmed that it was usual for an indemnity award to be made: - 27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).
  20. Hi 100dxuk, Lloyds 40 days for my SAR request isnt up until the 2nd November so ill have to hang on a bit longer just in case anything else turns up Not quite sure how to play this now, they're saying that :- " the account should be held for 60 days ,whilst we obtain this for you.BW Legal have placed the requested hold from 1 October on the stat demand. This hold is in addition to the statutory period already outlined to you on the demand." Have i now got 78 days from the 1 October to apply for a set aside ? And if so am i best getting it in as soon as possible or leaving it as long as possible and seeing what turns up ? If I apply for a set aside now and am succesful, if the missing paperwork turns up in the future can they apply for a new stat demand ? Any advice appreciated Gazbo
  21. Just got in from work and found this little beauty from Lowell's in todays post. Will carry on with my set aside and hopefully get a copy posted later this evening for your perusal and comments As usual any thoughts or comments appreciated Gazbo
  22. Second time lucky ( hopefully !!) Will get my set aside finished and posted up for comments tomorrow Gazbo
  23. [ATTACH=CONFIG]47058[/ATTACH] Quick update, Sent the letter the Brigadier advised to Lowells (signed guaranteed delivery sent on the 15/10/13 and signed for on the 16/10/13) and even emailed a copy of it to BW Legal. Got up today and found the attached letter from BW legal, they have requested my CCA and hope to have it within the 12 day time limit, Idiots !!! your already 10 days late from my request that was sent on the 23rd September !!! and will place my account on hold but no mention of withdrawing the SD Not sure how to proceed now, fire off a snotty letter to BW Legal and Lowells once again reminding them of CCA Act S77(6) or just go ahead and file my set aside ( got it about 70% done ) or do both As usual any help greatly appreciated Gazbo
  24. Hi Ford, Yead did the SAR request the same time as the CCA request, had some bits and bobs back from Lloyds but they relate to settled loans, not had anything yet in realtion to my c/card. BRIGADIER2JCS :- sorry forgot to give you the name, it is Mr B Singh Sur
  25. Hi BRIGADIER2JCS, Thx for the prompt reply but unfortunately have only just got in from work so will have to send it first thing in the morning, Got a quick query for you though !!!! is it worth adding some sort of time scale to the letter, ie i expect you to confirm this within x days or do i just carry on and get my set aside ready to go ? Cheers Gazbo
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