Help - RWay 9 Year Old Debt - lowell claimform What to do?

[SF2010]

Hi Mould

 

Further documents attached.

 

With thanks

[SF2010]

Now re-attached final 2 posts. Thanks for the admin assistance with removing promptly.

 

Apologies for any inconvenience.

[citizenB]

You need to convert your jpegs to pdf format - they are way too small for us to read at the moment

[SF2010]

Very sorry Citizen B, I will try and find a way to do that and re-post.

 

Thanks for the advice. I thought it looked a bit small on the screen.

[SF2010]

Trying to use photo bucket to upload now.

Edited July 6, 2014 by SF2010
links not working

[SF2010]

sorry this is not working for me. ive had to delete the post

 

 

 

 

[/url]

[dx100uk]

you need to PDF them..

 

**you can post up images/letters by this method immediately..you don't need 10 posts**

.

set your default scan page size to A4 less than 300DPI [150 will do]

scan the required letters/agreements/sheets - as a picture[jpg] file

don't forget you can use a mobile phone or a digital camera too!!

'

BUT......

ENSURE: remove all pers info inc. barcodes etc

but leave all monetary figures and dates.

.

************************* ************************* *******

{DO NOT USE A BIRO OR PEN OR USE SEE THRU TAPE OR LABELS]

************************* ************************* ***********

.

DO IT IN MSPAINT.EXE or any photo editing program

goto one of the many free online pdf converter websites ...

http://freejpgtopdf.com/

http://www.convert-jpg-to-pdf.net/

..

if you have multiple scans/pics

put them in a word doc FIRST and convert that to PDF

or http://www.freepdfconvert.com/

or

use www.pdfmerge.com

 

convert existing PC files to PDF [office has an installable print to PDF option]

..

it would be better to upload a multipage pdf if

you have many images too rather than many single pdfs

.

or if you have PDF as an installed printer drive use that

or use word and save as pdf

or use Primo PDF.

.

try and logically name your file so people know what it is.

though DONT USE BANK NAMES or CAG in the title

i'e Default notice DD-mm-yyyy

.

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

...

YOU DONT have to put a link to the attachment in the msg box..just upload it ..job done

you can click on your links to check them too!

.

dx

 

 

tip

use word and make a multipage file of the pages

 

then PDF the doc

[SF2010]

Trying again....here goes. Not working picking up wrong

[dx100uk]

must be pdf via the go advanced/manage attachment boxes bottom right

[SF2010]

Fingers crossed. This is it.

 

 

[/url]

Edited July 6, 2014 by SF2010
Frustration!

[SF2010]

here:

[The Mould]

Thank you SF

Is the Document titled “FURTHER PARTICULARS OF CLAIM” verified by a statement of truth?

Has a valid default been served on you by the original creditor pursuant to ss.87 & 88 of the CCA 1974? If not, has the new owner of the agreement, the Claimant in this action, served a valid default notice on you pursuant to ss.87 & 88 of the CCA 1974 (as amended)?

As the agreement relied upon by the Claimant is dated 1997, does the same comply with the requirements of s.61 CCA 1974?

In respect of the agreement element of your Defence, have a read of this authority and see if you can rely upon any breaches, in particular any irredeemable breaches of the CCA 1974 that will render the agreement unenforceable pursuant to s.127(3) of the CCA 1974. Click on the link and print off the Handed Down Judgment - http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

Further, in Harrison v Link, the High Court also ruled that service of a valid default notice was a prerequisite to enforcement proceedings.

As regards the statutory service by a creditor of a valid default notice element of your Defence, have a read of ss. 87 & 88 CCA 1974 both before and after the Act was amended and have a read of these authorities to see if you can defeat the claim on the grounds of the Claimant not being entitled to enforce the agreement in contravention of statute and said authorities which the lower Courts are bound by. Again, click on the links and print off. http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html

http://www.bailii.org/ew/cases/EWCA/Civ/1998/1209.html

The above Court of Appeal judgment (1st of the two Links) confirms that a creditor is not entitled to enforce a credit agreement in contravention of the statutory requirements imposed upon him under s.87(1) CCA 1974 (as amended). The second link will take you to the Transcript of the Handed Down Judgement concerning service of valid default notices in accordance with the CCA 1974 provisions before it was amended. This is a key authority which may be relevant to your Defence given that the agreement is 1997 and therefore subject to these provisions.

Further, see - http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html the said case confirms that the Claimant, as the claimed assignee of the credit agreement, is a creditor within the meaning of s.189 CCA 1974 (as amended), therefore, he was under a statutory duty (s.87(1) CCA 74 as amended) to serve a valid default notice on you before he could become entitled to enforce the credit agreement.

As regards the Notice of assignment element, see the legislation below and put the Claimant to strict proof on his allegation that such notice complies with s.136(1) and strict proof on the service of the same on you.

Law of Property Act 1925 sections 136 & 196

136 Legal assignments of things in action.E+W

(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 M15Trustee Act, 1925.

(2)This section does not affect the provisions of the M16Policies of Assurance Act, 1867.

[F156(3)The county court has jurisdiction (including power to receive payment of money or securities into court) under the proviso to subsection (1) of this section where the amount or value of the debt or thing in action does not exceed [F157£30,000].]

196 Regulations respecting notices. E+W

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

(1)Any notice required or authorised to be served or given by this Act shall be in writing.

(2)Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.

(3)Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

(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 [F196by 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.

(5)The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.

(6)This section does not apply to notices served in proceedings in the court.

Kind regards

The Mould

[unclebulgaria67]

These £1 payments showing on the statements.

 

Who were these paid to ? Evidence of who paid them ? If you obtained copy statements from Halifax, would it match up with what Lowells have sent ?

[The Mould]

http://www.bailii.org/uk/cases/UKHL/2000/27.html

Click the above link and peruse this House of Lords decision where Lord Hoffman, giving the leading judgement made this qualified statement as regards irredeemable breach of s.61 (1)(a) of CCA 1974 which rendered the agreement in this case unenforceable by virtue of s.127(3) of the 1974 Act:

Lord Hoffman

“Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable”.

The above only applies to regulated agreements that do not comply with s.61(1)(a) before the CCA 1974 was amended and is the highest authority in England and Wales, now replaced by the Supreme Court. The amendments repealed s.127(3) amongst other things.

Kind regards

The Mould

[SF2010]

These £1 payments showing on the statements.

 

Who were these paid to ? Evidence of who paid them ? If you obtained copy statements from Halifax, would it match up with what Lowells have sent ?

 

 

I am still trying to get my SAR to do the comparisons Uncle B (30 days and still deliberating about signatures not matching), but I should have that in time for the court date.

[SF2010]

Many thanks Mould

 

 

I do not have a default notice, but a default was registered against my account many years ago and dropped off a few years ago now. I have asked the OC several times for the notices, but they have not been forthcoming. Hence the sale no doubt.

 

 

I have not had a default notice from Lowells.

 

 

I am grateful for the time you have taken to provide such extensive information. It will take some time to go through all of this with a fine toothcomb, but I certainly will do. It is unfortunate that I have to go and argue my points rather than be able to write them as a defence. Is it possible that I too could advise I am not attending the hearing and have my statement of truth for the hearing without appearance?

 

 

In the meantime, the breaches to my statutory rights as I understand are as follows:

The agreement is not the original (you will see it says original to dept on the copy they have sent)

There is no default notice for me or the court to ascertain if it was in the format required under statute and if I have been afforded the opportunity to correct the default within the required period (I have asked the OC for this, several years ago and they said they don't have to provide me with a copy)

There is no notice of termination of agreement

 

 

Now in my first court appearance the judge advised that I didn't have to have those notices, when I stated these were not provided, however, the CCA is specifically referred to in the statement made by BC, therefore I feel I should be afforded compliance with the statutory requirements of the CCA 1974.

 

 

It is a difficult thing for a layperson such as myself to respond to what feels like a total disregard, therefore I feel I need to acquire legal representation for this matter. In addition to this, I will also be looking through the information you have provided and thank you all so much for your time in helping me.

[dx100uk]

pix converted to PDF to speed up thread loading

and allow zooming capabilities.

 

dx

[BRIGADIER2JCS]

The apparent absence of a DN is unlikely to have any effect on the case. DNs are not routinely stored as hard copy the creditor may rely on their " coms " log stating that a DN was issued on a certain date.

The judge could have ordered that a "copy" of what the DNs would have looked like, pointless because of the evidence a OC can rely on from their records.

[SF2010]

Thank you Mould and Uncle B! I've not given up and will certainly be doing my research.

 

 

Thank you for being here and all of CAG to point me in the right direction.

[SF2010]

Thanks Brigadier.

 

 

I have much to look into, so I will come back once I have had an opportunity to look at the advice shared by The Mould.

[SF2010]

pix converted to PDF to speed up thread loading

and allow zooming capabilities.

 

dx

 

Thanks DX I was having a lot of difficulty with getting the documents in format for posting. Maybe a problem on the computer, but likely to be me and the stress of it all.

[SF2010]

Hi All

 

I wonder if I should receive separate notification of the hearing date by letter of the Court

and further to the refusal of my application to strike out?

 

The reason why I ask is I hope that the claimant is required to appear with the original agreement

as there are a few discrepancies which suggests to me it is not a true copy of an original.

I would expect to know or even slightly recall consolidating a loan.

 

Since this case started 4 years ago, no one I have communicated with has provided this agreement

as a result of my request under section 77, but have done so way after and never as a direct result of my request.

It has been actively avoided.

 

I am sure that I am not crazy just yet, though mystified by the legal system

and it's ability to be manipulated.

 

The burden of proof is certainly on me and I feel attendance at court by the claimant

is a key requirement so that they are required to respond to questions I wish to raise regarding the claim.

 

Can I make an application to the court for an Order for the claimant to attend in a small claim?

 

Your advice would be welcomed.

[slick132]

Hi SF,

 

The Claimant needs to attend the hearing to stand any chance of obtaining judgement, so you should have your day in court.