Lowell/Hamptons Statutory demand - old EGG debt *** WON + COSTS *** 2 years later - SD Issued again !!

[lilly white]

PRACTICE DIRECTION – INSOLVENCY PROCEEDINGS - Ministry of Justice

[vinegarvera]

Oh thanks to all, Have now thanks to another post, drafted a letter regarding costs which I believe can be sent 24 hours before court date?

 

I don't know how people manage without this forum - Am I right in thinking that the 6.5 forms the witness statement?

 

Do I have to put in a defence at this point also? If so, what am I defending (if you catch my drift? Surely if anything else were needed it would be requested in the hearing paperwork or am I just dim? (probably).

 

I really am grateful for all help offered but it is all going around in my head..

[vinegarvera]

P.S. Have still had nothing back from Lowells re my CCA request.

[vinegarvera]

Sorry MJ just re=read your post - I am defending due to lack of NOA/ DN/TN.

 

I SAR'd Egg and CCA'd Lowells. Got a load of bumf from egg (including someone elses account details) a CCA but no NOA/TN etc.... Nothing back from Lowells as yet...

 

NB I have SAR'd egg in the past to no avail, this is the only time I have had anything back..

[mandyjayne]

V...

 

i have just pm'd themainman for you, he has also been down the lowell/sd road! and has given me some sound advice...hopefully he will pop in soon..dont fret it will get sorted!

MJ:D

[vinegarvera]

V...

 

i have just pm'd themainman for you, he has also been down the lowell/sd road! and has given me some sound advice...hopefully he will pop in soon..dont fret it will get sorted!

MJ:D

 

 

Mandy jayne, you are ever so kind - would not have been able to do this without your support and you are going through the same thing!!

 

42 man has helped me before, he is great. Would be great if Lowells did not attend but knowing my luck they will with all their paperwork in order....

 

Its speaking to the judge that is freaking me out as I dont really understand everything:confused:

 

Thanks again!!

[lilly white]

Sorry MJ just re=read your post - I am defending due to lack of NOA/ DN/TN.

 

I SAR'd Egg and CCA'd Lowells. Got a load of bumf from egg (including someone elses account details) a CCA but no NOA/TN etc.... Nothing back from Lowells as yet...

 

NB I have SAR'd egg in the past to no avail, this is the only time I have had anything back..

 

Ok as we stand you are fine however please keep us posted in regards to any Witness statment that may come from these people...............

 

Please try and relax

[lilly white]

Mandy jayne, you are ever so kind - would not have been able to do this without your support and you are going through the same thing!!

 

42 man has helped me before, he is great. Would be great if Lowells did not attend but knowing my luck they will with all their paperwork in order....

 

Its speaking to the judge that is freaking me out as I dont really understand everything:confused:

 

Thanks again!!

 

Please it is not to you but to them they must prove a lot

[lilly white]

this is what they have to prove please read. and research

In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and xxxxxxxxxxxx Bank

, secondly that such an agreement complied with the requirements of The Act (and all consequential regulations made thereunder) both at the date of inception and at all times thereafter.

Thirdly it must establish thatxxxxxxxxxxxxxx Bank complied with all of the provisions of the Consumer Credit Act 1974 (“the Act”) in that it must show that it served a proper default notice upon myself prior to terminating the agreement and prior to commencing proceedings.

Fourthly, if the Claimant was not xxxxxxxxxxxx Bank then it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925)

. Fifthly that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925.

Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

 

[lilly white]

DEFAULT NOTICE

 

The Need for a Default notice

Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

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

Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 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, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

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

[lilly white]

The Assignment of the Debt

 

 

19. If the Claimant was not zzzzzzzzzzzz Bank then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

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—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. 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.

 

22. It is noted that by the 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 (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant 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 proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

 

[vinegarvera]

Ok as we stand you are fine however please keep us posted in regards to any Witness statment that may come from these people...............

 

Please try and relax

 

Thanks lilly white, just wanted to make sure that I don't have to submit anything else (apart from costs 24 hours before hearing).

 

I have some time off at the end of the week when the kids are in school so plenty of time for more research.

 

Lilly - Cant think of a nicer image than a pure white lilly at the moment:)

 

Will keep you posted if I receive anything, do you think I should call the courts to see if they have had anything?

[lilly white]

Sums Claimed

 

 

26. It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

 

 

 

[mandyjayne]

if they DO turn up with paperwork in hand, the judge will ask them why a copy has not been sent into the court or to you!

 

This is what happened in my case. The DJ was not impressed, the hearing was ajourned and they were ordered to produce a witness statment and file it within 14days, one to me, one to the court. They did not, the same thing happen in Mainmans case...why dont you give the court a call in the morning give them the case number and ask them to check if any paperwork has been filed...bet it has not!!

[lilly white]

Thanks lilly white, just wanted to make sure that I don't have to submit anything else (apart from costs 24 hours before hearing).

 

I have some time off at the end of the week when the kids are in school so plenty of time for more research.

 

Lilly - Cant think of a nicer image than a pure white lilly at the moment:)

 

Will keep you posted if I receive anything, do you think I should call the courts to see if they have had anything?

 

if they put in a witness statment they should have copy you in,

 

However always worth contacing the court just in case if they have put in a witness statment we will tear it apart

[lilly white]

. It is denied (if it be alleged) that the Defendant is seeking to find “technical loopholes” to avoid alleged liability to the Claimant. on the contrary, in the cases and authority quoted within this defence, it has been confirmed that a lender who wishes to enforce a term of it’s contract before the court should first make sure that the contract strictly complies with the requirements of the law – in this case the Consumer Credit Act 1974 and associated Regulations.

 

 

In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all.

 

 

sleep well

[vinegarvera]

Sorry Lilly, just to clarify, should I send all that information to the court before I attend early next week or just have it to hand when I attend?

[lilly white]

i am confused have you send in your forms and what have you used

 

what did you put in your ,The application ( Form 6.4) and written evidence in support (Form 6.5)

[vinegarvera]

Sorry Lilly I seem to be confusing everyone (especially myself). I have submitted the 6.4 and 6.5.

 

The 6.5 states:

 

1. That on XXXXX the statutory demand exhibited and marked "A" came into my hands.

 

2. That I ©

 

Do not admit the debt because, it is denied that the matters pleaded in the particulars of the claim actually disclose any course of action. In particular:-

 

a) It is denied that the defendant can have liability to "pay" the claimant sums of money simply on account of requests for payment in relation to XXXXXX credit card - the only matters pleaded.

 

No cause of action known in English law exists on such a basis of such " requests of payment" (whether repeated or not)

 

b) Neither the claimant being Lowell portfolio PLC which it appears (on the face of the Particulars, although due to their vagueness it is hard to know) to be being alleged were due.

 

c) In any event, it is denied the defendant has or ever has had liability to pay - whomever that may be - any sum whatsoever.

 

2. It is expressly denied the defendant is liable to pay any money pursuant to contract or otherwise to the claimant.

 

3. Without prejudice to the above contentions, the defendant asserts that in particular, given what he original of the liability is said to be a credit card given by "(which is a person/ entity/ company not known to the defendant), it will be the case, taking into account the amount of the liability, the transaction, and the underlying agreement, (if any) between Egg credit card and the Claimant would be regulated by the Consumer Credit Act 1974.

 

4. It is the express contention of the Defendant - again without prejudice to the contention, that there is in fact no agreement - that any such agreement as exists does not comply with the Act. It is impossible to plead further in the absence of a pleading by the Claimant as to what the agreement was and what were its terms and the Defendant reserves the right to plead Particulars of failure to comply in the event that the Claimant amends its particulars of claim to allege the agreement.

 

 

 

That is all that has been submitted up to now...

Edited February 10, 2010 by vinegarvera
spelling

[vinegarvera]

Think that's why I got so caught up in the agreement argument??

[vinegarvera]

Any further advice greatly appreciated..

[vinegarvera]

Ok, going to court on my lumch hour to submit costs and ask whether Lowells have submitted any paperwork in readiness for Tuesday....

[the main man]

I would be very surprised if they have...It's all just a game to Lowell, they will be hoping that you will give in under the pressure and offer payment.

 

anyway why should you offer? when they have shown no legal right to issue this action against you in the first place:)

[vinegarvera]

Ok, back from court submitting my costs... even that freaked me out

 

Asked if Lowells had submitted anything and was told I will only find out on the day - Not sure I fully believe her. I told her I had had nothing from them and she just said "Bring that up on Tuesday"

[humbleman]

 

Asked if Lowells had submitted anything and was told I will only find out on the day - Not sure I fully believe her. I told her I had had nothing from them and she just said "Bring that up on Tuesday"

 

 

How very helpful