Hamptons/Cap1/Lowell Stat demand served - looking fo some assistance please

[Betamaxfan]

Hi everyone,

 

I have received (not posted but pushed into the unlocked outside porch) a stat demand from Lowells with cover letter from Hamptons.

 

I've looked around the forum and can see that this is now a common tactic from DCA's to pile the pressure on.

 

The debt is 4K+ and is from a cap one card from a couple of years ago.

 

From the date of the last payment till this letter has popped through my Fathers door (i don't live at the address but I am on the deeds) i've had no communication from them.

 

I understand I can attempt to set the SD aside but i wondering if it's real or fake. It is not stamped from a court and looks like a downloaded form (form 6.1) printed out. it has my name and my fathers address, they list lowell portfolio as the creditor.

 

In the part A section they have listed a county court which is in the next town to me (i.e. not the couty court for my area - not sure if thats important ot not). part B is their details and then Part C. shows a date from just a few months ago when the alleged debt was sold from cap 1 to lowell.

 

So my question is - is this just a threat or do i need to take steps to get it set aside.

 

The letter and sd are dated from over a week ago.

 

I think my ground for setting it aside would be the no corresopences and not notice of termination or assigment - can somebody offer me some guidence here please?

 

Many thanks

 

BMF

[martin g]

Good afternooon,

 

The stat demand won't have a court stamp because these can be raised and served outside the court process.

You have 18 days from service to apply to have it set aside and if you don't the claimant may apply to have you made bankrupt after 21 days without further reference to you.

 

It would be dangerous to ignore the SD, however it does sound as if it has been improperly served which would help you.

 

I suggest that you have a look around the site and you will find lots of people who have successfully defended themselves against an SD, including myself twice.

 

The main problem is that the SD process is a bit of Victorian law which in part allows a credditor to go around the side of the various consumer credit acts, and, as such, there is no case law and very little legal expertise.

 

In your set aside pplication you must stress that a " genuine triable issue" exists. T

This should ensure that the Judge will allow the set aside and the claimant must then fall back on the County Court system where you have the protection of the CC acts.

 

Hope this helps and I am sure others will add thir pennyworth, Man 42 is the site expert on SDs and has a lot of good advice,

 

Martin g

[bazaar]

If there is a court reference, then maybe a quick call to the court in question would throw some light on it.

If there is an SD filed, then apply to have it heard at Your local court, seems to be a bit of snidey trick they are pulling

Sounds like it would be deemed wrongly served, but, cover yer backside.

[Betamaxfan]

Many thanks for your replies so far.

 

I can't see any court reference on the forms just there own reference.

 

In Martin's post he mentioned it would be dangerous to ignore, but it does look to have been served improperly - would this consitute a defence if they then tried to take it further?

 

My concern is if i move to get this 'sd' set aside would i then be opening myself up to lowells who may then bombard me with letters and threats.

 

If this letter has not cost them anything to produce i.e. no court costs then it may just be an attempt to scare me into submission (they have obvioulsy have not met me!) The next step would mean them coughing up £1100 (i understand) and moving to a bankrupcy petition - have they actually done this to anyone on here yet?

 

I'll seek out Man 24's post as suggested in the meantime.

 

Cheers

 

BMF

[sam614]

hi.

 

it is

 

42man

 

 

site team

[martin g]

Sorry 42man

 

Martin g

[Betamaxfan]

Thanks for that correction - i felt it strange i could find no posts from him.

 

BMF

[bazaar]

It may be worth posting up the letter, minus all the personal stuff, to see if we can get a definitive answer, it could be just a con to get you to contact them by phone, so then they have your phone number etc. ( I'd phone from a call box if I wanted to wind them up:D).

Obviously theres the chance that its more sinister, but its all smoke and mirrors with these cretins

[Betamaxfan]

You must have read my mind - i've just scanned it.

 

I'll remove the personal stuff and then post it - i think most people use photo bucket - is that right?

 

BMF

[bazaar]

You must have read my mind - i've just scanned it.

 

I'll remove the personal stuff and then post it - i think most people use photo bucket - is that right?

 

BMF

Yes Photobucket should be ok

[Betamaxfan]

I think the scanned file should now be attached to this post.

 

MODS - if i have done this incorrectly or if in your opinion there is data there that will reveal too much then please remove it.

 

I look forward to your, ever helpful, comments.

 

BMF

HAMPTONS SD.pdf

[bazaar]

Ok So lots of If's Bit's and maybes then,

I dont see any reference to the court, unless Ive missed something.

If the other stuff is correct like account details etc, then it does say contact the above named person on the SD, so that would be your next move I believe.

This way your not ignoring this, but requesting more proof. IE statements etc.

They may well be trying to pull a fast one by omitting the court details and later present them to court, so you have to be a little careful.

Have you phoned the court??? ( If you have the details of course)

They also state they have been assigned this debt, Have you ever recieved proof of this?

[martin g]

good afternoon,

It looks like a proper sd to me on the correct form and in the correct manner.

Not withstanding the fact that it wasn't properly served I feel that it would be dangerous to ignore it.

 

Lowells will only proceed if they know you have assets, there is no profit in bankrupting a man of straw, and I think you said that your name is on the deeds of a property.

 

The problem with an SD is that the burden of proof is reversed, meaning that you have to prove that there is a dispute and that you have a defence in a county Court ( a genuine triable issue).

 

On your side is the face that Lowell are very unlikely to be able to produce documentation, CCA, proof of assignmnet and so on.

 

I do urge you to put in a set aside and put Lowell to strict proof on any claim.

 

Martin g

[Betamaxfan]

I've never received anything off these guys, no assigment or demand.

 

They only bought the debt a few months ago and it looks like they have just jumped straight in with a SD.

 

They may think there is equiety but the house already has a substantial charge on it from my father who lent me a third of the value at the height of property prices. We used a solicitor to draw up the loan and it was secured against the property. The net effect is it's in technical negative equiety.

 

I understand the baiscs of applying to set it aside but i'm concerned with what happens next. will they start from scratch?

 

If I face the SD down and they do move to petion for bankcrupcy would i be able to put that aside due to the incorrectly served SD - if they did go for it they would find them selves at the back of a long line and with a very small percentage of the not a lot.

 

In the meantime can anyone point me towards a template or set of reasons for setting the sd aside. Based on served not at my address and no prior communication, notice etc...

 

Cheers

 

BMF

[derek1]

Hi there

 

the exact thing has happened to me and the man handed me the letter but it was not in an envelope.

 

One person on here has told me to send a sar to Hamptons Legal and a letter to Lowell saying that I am querying it.

 

Is this right? Or should I just bite the bullet and phone and make a payment plan with them?

 

PLEASE PLEASE someone tell me what to do.

 

Thanks

[Betamaxfan]

Almost forgot - the document does mention a court and it's address but no reference.

 

I have seen conflicting opinions on this - some people have said unless it is stamped it's a fake but other people have said it does not need a stamp as it can be done outside the court process.

 

Can anyone clarify ?

 

Thanks again

 

BMF

[Betamaxfan]

sorry - one more thing that has popped into my head, this thing was not served at my home address - what would happen if my father just posts it back with 'not at this address' on it?

 

BMF

[bazaar]

youll run the risk of them pushing it through,

read the other thread on hamptons, it should definitely be queried, but you dont have much time.

[Betamaxfan]

I've been mulling this over now for a few days - my gut instinct is that this is just a threat-o-gram from Hamptons but i'm unsure if i want to risk seeing if they would do anything else i.e. stump up the £1500 to make the petition.

 

I have a few days left to file for for a set aside and i have cobbled togther (from other threads on here) the following - if I could get some comments back on it's suitability that would be great. (as yet i have not sent for a SAR or CCA request but will if needed).

 

My afadavit will read.

 

The defendant totally disputes the debt.

The alleged creditor has provided no consumer credit agreement with the prescribed terms.

The alleged creditor has not provided any default notices in the prescribed form.

The alleged creditor has provided no statements for the duration of the account.

The alleged creditor has not provided any notices of assignment.

The alleged creditor has not sent me a letter before action.

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 Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

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 WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the bankruptcy petition was issued.

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

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

The alleged creditor has not 'served' anything on me, but simply posted a demand through the letterbox - I believe that this is a frivolous attempt at scaring me into paying and therefore an abuse of the process.

I refer to:

Judge Boggis QC - RE AWAN - [2000] BPIR 241

'In my judgment, 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. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON.

As a part time earner with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

In support of this request, I would also like to 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).

[sam614]

leave out the alleged creditor has not sent me a letter before action

they do not have to for a sd

[Betamaxfan]

okay - thanks for the comment I'll amend.

 

I also recall someone mentioning (on another thread) about strict proof of recepit of DN & Assignemnts - but i can't fine the link to the statement for a SD defence - can anyone point me or cut & pate please?

 

Thanks

 

 

BMF

[Betamaxfan]

Apologies - i don't want to bump for no reason as I kow there are many people on here wanting help but I only have a few days left to file a defence to get the SD set aside.

 

I have a a defence outlined further up but I really wanted to know if it would hold water and also get some suggestions.

 

Many thanks

 

BMF

[42man]

Any more news on this BMF ?