Lowell Financial round 2!!

[markwareham7]

Hey guys

 

Been awhile since ive been here. About a year and a half ago, i was being chased by lowell portfolio for a debt about 8 years old. After some great help from these forums, i sent them a cca request that didnt come back within the time frame, and when it did come back, it was a poorly photocopied peice of paper with no signitures on it whatsoever. After this, i didnt hear from them again.

 

Fast foward to 3 weeks ago. I moved into this house around 7 months ago. Every month i've been keeping an eye on my credit report with experian. I noticed about 3 weeks ago, some checks were being made on me by lowell financial! So it wasnt to my surprise that the letters demanding payment (full or payment plan) started coming again. Now, are they allowed to do checks on my credit file to see where i'm living now, and what road do i go down now with this old debt.

 

They have threatened to take necessary action to recover monies owed. They claim to be the legal owners of the debt, and have threatened agent visits.

 

The debt is an old capital one credit card and is for £431.15.

 

Any advice would be greatly appreciated.

 

Thankyou

[PGH7447]

when did you last make any payment or written acknowldgement?

[markwareham7]

when did you last make any payment or written acknowldgement?

 

 

As far as i can remember, not within the last 6 years.

[PGH7447]

send the stat barred letter, that will shut them up

 

the template is here

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors.html

 

somewhere

[markwareham7]

send the stat barred letter, that will shut them up

 

the template is here

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors.html

 

somewhere

 

 

Thankyou PGH7447 for your quick replies. I will update this thread when or if i hear something back

[ODC]

Just shows the dangers of checking your Credit Report with the DCAs friends in Experian. They pass your new address on to the leeches

[markwareham7]

Hey people!

 

Right then, I sent the letter suggested stating that the debt was statute barred. I had no reply. This letter was sent early april.

 

Today however, i received a claim form from the courts. They are claiming that i entered into an agreement with them on 07/09/06. Thinking about it, i seem to remember them phoning me and them scaring me into paying £50 per month, which i didnt stick to after finding that the debt was over 6 years old and was statute barred. But because i entered into this agreement, does that re-activate the debt? The original debt was with capitol one in 2001. So where do i go from here? what do i do now? I have worked so hard to get out of debt and a ccj would put me back to square one! Me and the missus has just had a baby and were looking into buying a house! Any advice would be greatly appreciated.

[harrassed senior]

OK, firstly, was there a continuous period of 6 years or more when no payments were made? because if so it is still SB.

 

Can you let us know what the alleged debt is Loan, CC etc and if you still have their response to the CCA request, can you post it up (if you have not already done so previously). Remove all identifiers.

[PGH7447]

you need to work out if any period of non payment was 6 years or more

[markwareham7]

i've been racking my brains out trying to think and im settling at they made that phone call just before the 6 years were up, so i think i made a payment to them at around 5 years 7 months. So does this mean that it is not statute barred and im going to end up with a ccj? Is there any way now to not get a ccj? Its an old credit card debt by the way.

[unclebulgaria67]

You need a 6 year period of not paying or acknowledging the debt, so unlikely to be SB.

 

You have to defend the action. You have to acknowledge receipt of the court forms and advise them that you will be defending.

 

See direct gov guide on this. County court claims and County Court Judgments (CCJs) : Directgov - Money, tax and benefits

 

You then need to follow a process which will help you defend. You need to request disclosure from Lowells or their solicitors who are taking this action, for a copy of all the relevant papers they will be using in court. I believe the request is under CPR 31.14. Make such requests by recorded delivery letter, keeping a copy and proof of postage.

 

See another thread on defending a CCJ. http://www.consumeractiongroup.co.uk/forum/legal-issues/259150-mbna-restons-too-late.html

 

Another thread that will help.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

Have a read through these threads and others about defending a CCJ. Come back with any questions, so people can answer. The main thing first is to acknowledge to the court receipt of papers and that you will be defending.

[fuzzybobble]

They have to be able to show that it's not Statute Barred by providing evidence of when the alledged payment was made and who made it.

 

The CPR request should reveal if they have that or not. Chances are they won't.

[markwareham7]

They have to be able to show that it's not Statute Barred by providing evidence of when the alledged payment was made and who made it.

 

The CPR request should reveal if they have that or not. Chances are they won't.

 

 

Ok cool. So if i go down the road of defending this, if it turns out that its not statute barred, whats the worst possible outcome having defended it a failed?

[Jasper1965]

Ok cool. So if i go down the road of defending this, if it turns out that its not statute barred, whats the worst possible outcome having defended it a failed?

 

Well.......

 

You will put them to proof of everything, you'll want the original CCA, a valid default notice and statements showing how the amount claimed arose.

 

If they do miraculously manage to supply all the paperwork you will be demanding, I bet such paperwork shows a number of unlawful charges were applied to your account prior to default and termination if not before.

 

As Lowell now claim to own title to this account, the proper way for you to reclaim your charges is as an equity under sec 136 Law of Property 1925 {("Subject to equities") since the charges existed prior to the assignment}.

 

Forget about Cap 1 for now they haven't taken you to Court, AND they don't own the account that's why lowells are taking you to Court in their own right.

 

Go for your charges plus contractual interest thereupon straight from Lowell by way of counterclaim for setoff under LOP 1925.

 

Cap 1 charges plus 8 years+ of contractual interest should cost Clownells a fair whack.

[PGH7447]

and a reason why it has taken them so long to actually try to enforce the debt

[markwareham7]

Well.......

 

You will put them to proof of everything, you'll want the original CCA, a valid default notice and statements showing how the amount claimed arose.

 

If they do miraculously manage to supply all the paperwork you will be demanding, I bet such paperwork shows a number of unlawful charges were applied to your account prior to default and termination if not before.

 

As Lowell now claim to own title to this account, the proper way for you to reclaim your charges is as an equity under sec 136 Law of Property 1925 {("Subject to equities") since the charges existed prior to the assignment}.

 

Forget about Cap 1 for now they haven't taken you to Court, AND they don't own the account that's why lowells are taking you to Court in their own right.

 

Go for your charges plus contractual interest thereupon straight from Lowell by way of counterclaim for setoff under LOP 1925.

 

Cap 1 charges plus 8 years+ of contractual interest should cost Clownells a fair whack.

 

 

Most of that went straight over my head! lol. Ok, so if i defend then could it end up costing me more?

 

And what do i actually write on the claim form. Sorry if i sound silly, but i am very new to this.

 

Also, to note, i've worked out that its been 11 years since i first had the cc, so with this in mind, and my track record when i was younger, there must have been a period of more than 6 years without payment.

 

Thanks eveyone for their help so far

[unclebulgaria67]

This is section 136 of the law of Property act 1925, which might assist with your understanding

 

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

©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—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

(2)This section does not affect the provisions of the M2Policies of Assurance Act, 1867.

[markwareham7]

Hey Guys,

 

Not having gone through this before, all of the advice is somewhat going over my head! lol. So a couple of questions if you will.

 

How exactly do i defend this court action. Is it just simply a case of filling out the defense form with the advice stated above? I have no physical evidence to submit, just what i can write on the form.

 

Secondly, i received a letter today from lowell financial today. (I assume its the same people) asking me to contact them to prevent futher action. Now this has confused me a little, as i was under the impretion that futher action was already underway.

 

Should i phone this company and sort out a monthly payment, or should i defend and possibly lose, as i cant recolect as to when the last payment was on the account. As i say, im sure it has been over 6 years, but have no evidence to that effect.

 

Thanks again for the help so far, futher help is greatly appreciated.

[Jasper1965]

I've a hunch that you aren't the only one without physical evidence to produce in Court hence the offer of avoiding proceedings.

 

We must assume that the Court claim is genuine, could you scan the particulars of claim and post them up please?

 

Have you acknowledged the claim yet it's very important that you do?

[markwareham7]

I don't have a scanner, but I have a pretty good camera. I'll see what I can do. When you say particulars, do you mean what the are claiming for? Thanks for your response by the way

[unclebulgaria67]

You need to do 2 things to get the ball rolling.

 

1) Acknowledge to the court you have received their papers and you will be defending.

 

2) Send a letter to Lowell asking them for disclosure of information to assist you in defending. You can't really complete the necessary forms for your defence, unless you have the information.

 

This is the letter. Send recorded to Lowells.

 

Dear Sir,

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored] [delete if no such request was delivered]

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2 The assignment*

3 The default notice*

4 The termination notice*

5 [any other documents mentioned in the Particulars of Claim]*

* delete if not mentioned in the Particulars of claim.

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

# delete if claim for a sum exceeding £5,000.00

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

Yours faithfully

[markwareham7]

You need to do 2 things to get the ball rolling.

 

1) Acknowledge to the court you have received their papers and you will be defending.

 

2) Send a letter to Lowell asking them for disclosure of information to assist you in defending. You can't really complete the necessary forms for your defence, unless you have the information.

 

This is the letter. Send recorded to Lowells.

 

Dear Sir,

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored] [delete if no such request was delivered]

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2 The assignment*

3 The default notice*

4 The termination notice*

5 [any other documents mentioned in the Particulars of Claim]*

* delete if not mentioned in the Particulars of claim.

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

# delete if claim for a sum exceeding £5,000.00

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

Yours faithfully

 

Thanks very much, that helps alot.

[markwareham7]

Here are the particulars of the claim

 

http://i791.photobucket.com/albums/yy193/markwareham7/IMG_0273.jpg

 

So does everyone think that defending is the way to go? Whats the worst that could happen with defending?

[ODC]

They are having a laugh. They do not even have the date of assignment of the alleged debt on it. What a wunch of Bankers. Nor I notice have they even put on the alleged daily interest rates. Has this got an official court stamp on it even.

 

If you think the debt is Statute Barred then you must tell the Leeds Losers. The balance of proof rests with them not you.

 

One word of advice though. They like to make up imaginary payments just to keep a debt within time. Old Capital One CCAs dont comply with the CCA regulations so are totally UNERNFORCEABLE in court

[markwareham7]

They are having a laugh. They do not even have the date of assignment of the alleged debt on it. What a wunch of Bankers. Nor I notice have they even put on the alleged daily interest rates. Has this got an official court stamp on it even.

 

If you think the debt is Statute Barred then you must tell the Leeds Losers. The balance of proof rests with them not you.

 

One word of advice though. They like to make up imaginary payments just to keep a debt within time. Old Capital One CCAs dont comply with the CCA regulations so are totally UNERNFORCEABLE in court

 

Hey ODC. Thanks for your reply. Yep, all looks official. I did send the statute barred letter in april and had no response. Then recieved this last week. What do you think they are playing at?

 

Do you personally think i should defend? Also last year, i cca requested them and they sent a poorly photo copied sheet of paper with my sig on, thats all as far as i can remember.