Lowell and Barclaycard debt poss SB'd

[Azuma]

Hey guys,

 

i made a few complaints agaisnt Lowell, Red and Hamptons, how they are chasing me for a debt that has not been proved to be un SB'd, they have sent me the following response, hopefully someone can make sense of it for me?

 

Dear Azuma

Consumer Credit Act 1974 (the Act)

Complaint Against: Lowell Financial Ltd t/a Hamptons Legal, Red Debt Collection Services & Lowell Portfolio I Ltd

Licence No: 528607, 544015

Thank you for your email received on 9 October 2009.

I am very sorry to hear about the difficulties you have been experiencing however, the OFT has no authority to become involved in disputes between consumers and traders and so we cannot offer you any direct help with the complaint or advise you directly in this matter. Our role is to protect the collective interests of consumers.

The Consumer Credit Act 1974 (the Act) established a licensing system to protect the interests of consumers in the credit area. If a business wishes to undertake the collection of debts that arise from consumer credit agreements then the Act states that they are required to hold a consumer credit licence; this is issued by the OFT.

The above traders hold consumer credit licences. Under the Act, the OFT has a duty to consider the fitness of all traders who hold consumer credit licences.

In considering fitness we take into account whether a business has engaged in improper business practices. Where we receive complaints about the business practices of licensees, we investigate them and where appropriate we take enforcement action; that action depends on the evidence and circumstances. Action the OFT can take includes revoking, refusing or suspending a licence; or placing conduct requirements on the licence of the company or business in question (failure to comply with a conduct requirement can result in a financial penalty being levied).

The OFT has issued guidance to consumer credit licence holders engaged in the debt collection industry. The guidance is intended to ensure that debt collectors treat debtors fairly. Non-compliance with this guidance will call into question the fitness of licence holders and applicants. You can view our guidance at: www.oft.gov.uk/advice_and_resources/resource_base/legal/cca/debt-collection

The Limitation Act 1980 (the 1980 Act) sets out certain periods (referred to here as the “limitation period”) after which court claims cannot be brought. Different periods apply to different types of claims.

A claim for a debt is a claim based on breach of contract. The basic rule, under section 5 of the 1980 Act, is that a court claim for breach of contract cannot be brought more than 6 years after the breach occurred. In the case of a debt, the breach is the failure to pay the debt when required. The 6 year limitation period runs from the time payment should have been made and a court claim cannot usually be brought after that.

It is also possible for the limitation period, in effect to be extended. Under section 29 of the 1980 Act this can happen when the debtor acknowledges his debt or makes a part payment of it. The acknowledgement or payment must be to the person to whom the debt is owed or someone acting on his behalf. When the debtor does either of these things the 6 year limitation period may start to run afresh. This can only be the case where the acknowledgement or part payment is made within the original 6 year limitation period (and not later). The acknowledgement would need to be in writing and signed by the person making it (or someone on his behalf). It would need to amount to an admission that the debt is owed and has not been paid.

If a creditor seeks payment of a debt outside the limitation period the debt does still exist legally. The creditor can still ask the debtor to pay. What the expiry of the limitation period means is that the creditor cannot then enforce the debt through court action.

The OFT’s Debt Collection Guidance, published in July 2003, gives the OFT’s position regarding statute barred debt in England and Wales:

• It is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period,
  
• If a creditor has been in regular contact with a debtor before the debt is statute barred, then we do not consider it unfair to continue to attempt to recover the debt,
  
• It is unfair to mislead debtors as to their rights and obligations, e.g. falsely stating or implying that the debt is still legally recoverable and relying on consumers not knowing the relevant legal provisions, and
  
• Continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40(1) of the Administration of Justice Act 1970.
  

I have noted the details of your complaint, and we will consider this alongside any other complaints we have received with a view to any licensing action we may decide to take. If we do take any licensing action against these traders, it is likely that we would need to disclose your identity to these traders along with details of your complaint. I should therefore be grateful if you could sign the enclosed consent form and return it to me. Unfortunately, we cannot disclose any details about any action we may take, due to restrictions on the OFT relating to disclosure of information (Part 9 of the Enterprise Act 2002).

We note that your email raises concern in regard to credit agreement.

As you may know, s63 of the Act covers how and when lenders must provide consumers with a first (and where appropriate second) copy of a regulated agreement. It is clearly in the lender’s best interests to retain details of the original agreement and any subsequent variations or changes made to it, particularly as consumers can request a subsequent ‘true’ copy of most types of agreement under ss77 and 78 of the CCA (and on payment of the appropriate fee). There are rules about what is likely to constitute a ‘true copy’ under these sections of the Act. Further, if a consumer does make a valid request for a copy of their agreement under these provisions and the lender does not comply with the request the agreement may not be enforceable in the Courts, subject to any other mitigating factors.

Should you require specialist advice or assistance on the circumstances of your complaint (including in relation to the above provisions about copy requirements), you may wish to contact your local Citizens' Advice Bureau or seek advice direct from a legal adviser.

The Financial Ombudsman Service (FOS) can help with most complaints about consumer-credit products and services if the consumer has failed to satisfactorily resolve the matter directly with the financial institution itself. FOS can be contacted at: The Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall, London, E14 9SR; telephone number, 0845 080 1800, or www.financial-ombudsman.org.uk.

Thank you again for writing to us and bringing this matter to our attention.

Yours sincerely

Olushola Egbowon

Enquiries and Reporting Centre

Office of Fair Trading

 

 

ANY THOUGHTS?

[Azuma]

here it is again, without the line breaks etc...

 

Dear Azuma

Consumer Credit Act 1974 (the Act)

Complaint Against: Lowell Financial Ltd t/a Hamptons Legal, Red Debt Collection Services & Lowell Portfolio I Ltd

Licence No: 528607, 544015

Thank you for your email received on 9 October 2009.

I am very sorry to hear about the difficulties you have been experiencing however, the OFT has no authority to become involved in disputes between consumers and traders and so we cannot offer you any direct help with the complaint or advise you directly in this matter. Our role is to protect the collective interests of consumers.

The Consumer Credit Act 1974 (the Act) established a licensing system to protect the interests of consumers in the credit area. If a business wishes to undertake the collection of debts that arise from consumer credit agreements then the Act states that they are required to hold a consumer credit licence; this is issued by the OFT.

The above traders hold consumer credit licences. Under the Act, the OFT has a duty to consider the fitness of all traders who hold consumer credit licences.

In considering fitness we take into account whether a business has engaged in improper business practices. Where we receive complaints about the business practices of licensees, we investigate them and where appropriate we take enforcement action; that action depends on the evidence and circumstances. Action the OFT can take includes revoking, refusing or suspending a licence; or placing conduct requirements on the licence of the company or business in question (failure to comply with a conduct requirement can result in a financial penalty being levied).

The OFT has issued guidance to consumer credit licence holders engaged in the debt collection industry. The guidance is intended to ensure that debt collectors treat debtors fairly. Non-compliance with this guidance will call into question the fitness of licence holders and applicants. You can view our guidance at: www.oft.gov.uk/advice_and_resources/resource_base/legal/cca/debt-collection

The Limitation Act 1980 (the 1980 Act) sets out certain periods (referred to here as the “limitation period”) after which court claims cannot be brought. Different periods apply to different types of claims.

A claim for a debt is a claim based on breach of contract. The basic rule, under section 5 of the 1980 Act, is that a court claim for breach of contract cannot be brought more than 6 years after the breach occurred. In the case of a debt, the breach is the failure to pay the debt when required. The 6 year limitation period runs from the time payment should have been made and a court claim cannot usually be brought after that.

It is also possible for the limitation period, in effect to be extended. Under section 29 of the 1980 Act this can happen when the debtor acknowledges his debt or makes a part payment of it. The acknowledgement or payment must be to the person to whom the debt is owed or someone acting on his behalf. When the debtor does either of these things the 6 year limitation period may start to run afresh. This can only be the case where the acknowledgement or part payment is made within the original 6 year limitation period (and not later). The acknowledgement would need to be in writing and signed by the person making it (or someone on his behalf). It would need to amount to an admission that the debt is owed and has not been paid.

If a creditor seeks payment of a debt outside the limitation period the debt does still exist legally. The creditor can still ask the debtor to pay. What the expiry of the limitation period means is that the creditor cannot then enforce the debt through court action.

The OFT’s Debt Collection Guidance, published in July 2003, gives the OFT’s position regarding statute barred debt in England and Wales:

1. It is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period,

2. If a creditor has been in regular contact with a debtor before the debt is statute barred, then we do not consider it unfair to continue to attempt to recover the debt,

3. It is unfair to mislead debtors as to their rights and obligations, e.g. falsely stating or implying that the debt is still legally recoverable and relying on consumers not knowing the relevant legal provisions, and

4. Continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40(1) of the Administration of Justice Act 1970.

I have noted the details of your complaint, and we will consider this alongside any other complaints we have received with a view to any licensing action we may decide to take. If we do take any licensing action against these traders, it is likely that we would need to disclose your identity to these traders along with details of your complaint. I should therefore be grateful if you could sign the enclosed consent form and return it to me. Unfortunately, we cannot disclose any details about any action we may take, due to restrictions on the OFT relating to disclosure of information (Part 9 of the Enterprise Act 2002).

We note that your email raises concern in regard to credit agreement.

As you may know, s63 of the Act covers how and when lenders must provide consumers with a first (and where appropriate second) copy of a regulated agreement. It is clearly in the lender’s best interests to retain details of the original agreement and any subsequent variations or changes made to it, particularly as consumers can request a subsequent ‘true’ copy of most types of agreement under ss77 and 78 of the CCA (and on payment of the appropriate fee). There are rules about what is likely to constitute a ‘true copy’ under these sections of the Act. Further, if a consumer does make a valid request for a copy of their agreement under these provisions and the lender does not comply with the request the agreement may not be enforceable in the Courts, subject to any other mitigating factors.

Should you require specialist advice or assistance on the circumstances of your complaint (including in relation to the above provisions about copy requirements), you may wish to contact your local Citizens' Advice Bureau or seek advice direct from a legal adviser.

The Financial Ombudsman Service (FOS) can help with most complaints about consumer-credit products and services if the consumer has failed to satisfactorily resolve the matter directly with the financial institution itself. FOS can be contacted at: The Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall, London, E14 9SR; telephone number, 0845 080 1800, or www.financial-ombudsman.org.uk.

 

Thank you again for writing to us and bringing this matter to our attention.

 

Yours sincerely

 

Olushola Egbowon

Enquiries and Reporting Centre

Office of Fair Trading

[cerberusalert]

The OFT do not deal with individual complaints as they state, however they do take into account those complaints if and when they decide to take action against a company, that's why they've sent you a consent form to sign.

[skegleg]

Hi Azuma

i received a very similar letter from the OFT a few months back too

i filled in the consent form and sent it back and sent any other letters i had received in the meantime and asked them to put them to my complaint too

the more people that do complain and send the consent form off the better,

well done

[Blue Boo]

Hi, Ive had almost the same response from OFT also, Did you print off the consent form and then sign and post it? can you just type your signature and return by email? (Just wondering with the postal strike etc) would this still be classed as giving your consent?

Many thanks

Blue

[Azuma]

hey guys,

 

i've got a bit of an issue i hope you can advise me on fellow caggers.

 

i'll give you a bit of a run-down of what has been happening, first off i recieved a letter from Lowell about a debt i wasn't too sure about, but i sent them the statute barred letter as it appeared to be over the 6 years, they sent a letter back saying it wasn't, but it basically just said it wasn't, no proof or anything, i never responded again as it's their job to prove that i owe the money, not my job to prove it's not SB'd... and so the saga began.

 

i then have received numerous letters from, lowell, hampton and red, the last one was saying they are passing it to litigation with a view to apply for my bankruptcy, the next one is below, and to which i need your advice: (From Red)

 

Statutory Demand Processing Unit

 

"Dear Azuma,

 

Your account has been passed to this department and papers are being prepared with a view to a petition for your bankruptcy being filed at court. We are writing to you to explain the process that is likely to follow.

 

As a first step we have to serve you with a statutory demand for payment under section 268(1)(a) of the Insolvency Act 1986 in respect of a debt for a liquidated sum payable immediately.

 

Following reciept of this document you will then have 18 days to make an application to set the demand aside.

 

If after 21 days you have not dealt with the demand our client could file a petition for your bankruptcy at court.

 

How to comply with a Statutory Demand or have it set aside:

To avoid a bankruptcy petition being presented against you, you must pay the debt shown above. Alternatively, you can come to an agreement with us and enter into a repayment plan, you will not be asked to enter a plan that is beyond your current financial circumstances.

 

To discuss your account, make payment in full or enter into a monthly repayment plan please call the number below."

 

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The most annoying thing is that i have not been provided any proof that the debt is not SB'd, they have not provided me with a CCA! i do not understand how they can possibly threaten me with court action or bankruptcy! if they have not even proven anything is owed by me.

 

is it likely for them to apply for a Stat Demand? or even Bankruptcy? how likely is it that they will take this action? or is this just yet another threat by them?

 

Any help will be appreciated!

 

Az...

[mr.ton]

Its just standard nonsense from the desperate Leeds losers.

If its stat barred, its stat barred = end of.

Report them to the authorities.

The companies you mentioned are just different desks in the Leeds threat centre.

[silverfox1961]

Hi,

Standard rubbish from the Leeds Losers.

They fill thier threat-o-grams with lines like, "with a view to, likely, could"

These are designed to scare you. Remember, they have to prove the debt exists, not you prove it doesn't.

You have stated to them you consider this to be stat barred and they have given you nothing in return.

 

I seriously doubt they will SD you but if they did, just pop in and help will be forthcoming from the lowlife haters.

 

fox

[Azuma]

thanks guys, i thought this was just standard rubbish! they've sent me loads of letters like this so i'm not that bothered, they did send a response to my letter to them saying it was SB'd, they said it's not becuase "an attempted payment was made within the 6 year period" haha, idiots, they have to send me more than just their "word" that the debt exists.

[mr.ton]

It makes me laugh how DCA's say that someone made an "attempted payment"

You either paid or you didnt & if you did, they have to prove that as well - there is no such thing as an "attempted payment"

[lilly white]

Statutory Demand Processing Unit.

 

O that elite unit ya right,

 

COMPLETE RUBBISH .

[Azuma]

haha, thanks for confirming what i already thought, where would i be without my fellow Caggers?

[ODC]

The Leeds Losers are getting desperate. As so called experts they should know that an attempted payment doesnt count. All that counts is a payment by YOU or someone acting on your authority or a written acceptance of the debt. Report these sorry a**holes to the OFT and your MP

[Azuma]

The Leeds Losers are getting desperate. As so called experts they should know that an attempted payment doesnt count. All that counts is a payment by YOU or someone acting on your authority or a written acceptance of the debt. Report these sorry a**holes to the OFT and your MP

 

yeah i know man, i have written to the OFT they replied and said they do not get involved with civil disputes or some ****, but they would keep the complaint on file, i had to sign a waiver so that they could keep my report on file or something, so hopefully if enough of us complain they might take some form of action... here's to hoping

[Azuma]

hey guys,

 

i'm still having a nightmare with RED/Hampton/Lowell (Sigh)...

 

Basically i recieved a letter from Lowell stating i owed them for a debt i can barely remember, i'm pretty sure it's SB'd but they "say" it isn't, the old "attempted payment was made" came out from their lying mouths! i sent them a letter saying it was SB'd, they didn't provide any evidence that it isn't, just a statement saying an "attempted payment" was made nearly 5 years ago now.... so i left it at that until they provided me with something tangible. The account was then "passed" from lowell to red then to hampton (alot of desk swapping ) now they (red) send me the following letter, which i hope you can help me with, as it's getting a little out of control, i need your advice as to whether this is just another "threatogram" or if i should be paying it some heed... so here's what they sent me:

 

"Warning - This is an important document. You should refer to section 2 'how to comply with a statutory demand' and how to prevent a bankruptcy petition being possibly served on you.

 

Attention - Please read the information below carefully, if you feel any of the information is incorrect then please call immediately on telephone number 0844 844 4722 in order to amend your details. If a statutory demand is served upon you, the below details in section 1 will be incorporated into the demand.

 

Section 1:

Debtor name: Azuma

Original Creditor: Barclays Bank plc

Current Creditor: Lowell Portfolio I

The creditor claims you owe the sum of: £xxx.xx

 

The Creditor has sent you a letter of assignment dated 29/09/06 - YES

 

The Creditor on more than 6 seperate occasions has requested payment by way of lump sum in full and final settlement or by entering into an affordable repayment program - YES

 

The debtor/s have not entered into or adhered to an arrangement of repayment - YES

 

All the above information is believed to be accurate and true, witnessed by Kevin Allmark, Collections Manager (digital signature lol)

 

How to pay, payments can be taken over the telephone by credit or debit card or send a cheque to Red Collections etc etc...

 

Warning - Section 2

 

if you wish to avoid a bankruptcy petition being presented against you, you must pay the debt described above within a period of 21 days once the demand has been served. Alternatively, you can attempt to come to an arrangement with the creditor by calling us on 0844 844 4722. You will have to inform us that you are willing and able to offer repayment payment (WTF?). You can either offer an amount of money close to your account or enter into a repayment program that we see your outstanding balance being paid over a period of time.

 

YOU NOW HAVE 10 DAYS FROM THE DATE OF THIS LETTER (02.11.09) TO ENTER INTO NEGOTIATIONS AND AGREE REPAYMENT OF YOUR ACCOUNT. ONCE 10 DAYS HAS EXPIRED IT IS OUR INTENTION TO SERVE A STATUTORY DEMAND UNDER SECTION 268(1)(a) OF THE INSOLVENCY ACT 1986. DEBT FOR LIQUIDATED SUM PAYABLE IMMEDIATELY. CALL US NOW ON 0844 844 4722. YOU WILL RECEIVE NO FURTHER WARNINGS."

-----------------------------------------------------------------------

 

Soooooooo, any thoughts on this guys? i'm not ashamed to admit i'm getting slightly concered, but the thing is that they have not provided any proof that i owe this money and i'm pretty sure that they don't have any enforceable CCA. i'm just wondering what to do from here guys, any advice you can provide will be much appreciated! thanks in advance fellow caggers!

 

Az

Edited November 5, 2009 by Azuma

[PGH7447]

wait for the alledged sd to arrive - sounds like a standard threat-o-gram to me

[PGH7447]

what is the alledged debt?

[Azuma]

it's a credit card or a loan, one of them, not sure which...

[PGH7447]

in that case pre-empt them and send a cca requst off, they cant issue a stat demand if it is in dispute

[Azuma]

interesting, although isn't this just a delay tactic? unless of course they do not have an enforceable CCA i suppose... do you have a template at all PGH? and do i need to send it by recorded delivery etc?

[PGH7447]

The Consumer Forums - Debt collectors

 

template 8

 

cost £1 send it recorded with a postal order, do not sign the letter, they then have 12+2 days to comply, after that it is in dispute and they cannot attempt collection in any guise

[PGH7447]

and if by some miracle they stump up something post it up for people to check it out. the if it is kosher you sar them for all statements to see when the last attempted payment was made and by whom, that add another forty days.

 

on top of all letters put

 

I do not recognise or acknowldge any alledge debt

[Azuma]

nice one, much appreciated, what do you think the chances are of them having an enforceable CCA? i suppose it's better to send them the CCA request rather than have them slap a SD on me

[PGH7447]

depends on how long ago really, chances are there maybe something but who can tell

[Azuma]

cool, i think the original year it was taken out was like 2001, if its for a loan what is the code? s.77 / s.78 etc? and what is the code for a credit card / overdraft? so i can amend the letter thanks