Lowell and BC debt

Anthony7 · November 30, 2010

Just received a letter through the post from Lowell Portfolio with reference to a £450 debt they have recently purchased from Barclaycard.

The debt is from about 3 years ago. Escaped Barclaycard originally as I had moved out to Australia. Barclaycard had contacted my old address via phone but gave up when they accepted I no longer lived there. Now I am back in the UK and have been for 6 months.

Letter is opened and I am not able to comfortably pay it.

Would Lowell have done some research on me/my location etc. before purchasing the debt? Maybe they found out I had returned to the UK from Facebook, Linked In or the phone contract I took out (as I have not applied for any kind of tenancy agreement or other contracts)....as the letter is opened I assume it would be pointless to send it back in another envelope saying "no longer at this address"...

It seems Barclaycard gave up on the debt due to me relocating - if I do not admit my relocation to Lowell or acknowledge the debt - is there a good chance the same thing would happen as with Barclaycard? I may simply have to agree a payment plan however would like to know how best to handle the situation as there are various other similar UK debts I have which are also likely to surface at some point in the near future. Any suggestions would be infinitely appreciated.

alfwithhair · November 30, 2010

When did you last make any payments toward this BArclayshark account?

Anthony7 · November 30, 2010

Not for at least 2 years. Maybe 3

Tingy · November 30, 2010

I would imagine they could well have tracked you down. A friend of mine works in the insurance fraud industry and you'd be amazed how many people they trace through social networking sites.

Unusual for me, I always advise to ignore the first letter totally and see IF they contact you again. If they do I would be inclined to CCA them. Have you received any details of assignment for Barclaycard - you should have. Are you sure Lowells have bought the debt and not just been assigned to collect it on behalf of BC? These details are relevant as they have a bearing on what advice you will be given.

Anthony7 · November 30, 2010

Out of interest what does CCA mean?

Yeah Lowells have certainly bought the debt. Details of assignment I received in the envelope with the introduction letter from Lowells

Tingy · November 30, 2010

Consumer Credit Agreement. It sounds as though they have had an absolute assignment (bought the debt) rather than an equitable assignment (got the rights to collect the debt on behalf of the OC). I'd still ignore this first letter, if they send another then send the CCA letter to ensure they have everything in place to collect it legally. If they can't produce this (they have 12+2 working days in which to respond from the day of posting) then you can send the letter to place the account in dispute. This means until such time as they produce a CCA they are supposed to stop collection activities and you also have the right to stop making any payments.

Anthony7 · November 30, 2010

So I assume this is what you suggest in summary:

1) Wait for a second letter

2) If recieved - ask in writing for a CCA letter (I assume this is the equivalent to proof of debt)

3) Only start on a payment plan once this has been produced...?

As I never entered into a contract with Lowell, and do not with to enter into a contract with them, is there no legal basis I have to get around this..or does assignability to a 3rd party mean I have no choice in the matter ?

Many thanks

Tingy · November 30, 2010

This is my understanding:

So I assume this is what you suggest in summary:

1) Wait for a second letter Correct

2) If recieved - ask in writing for a CCA letter (I assume this is the equivalent to proof of debt) Send the template letter from this site asking for a true copy of the original CCA

3) Only start on a payment plan once this has been produced...? Yes, BUT they have 12+2 working days in which to respond to your CCA request. If they don't respond within that timescale, you need to write again placing the account in dispute. Send everything first class and ask for Proof of Postage (this is free)

As I never entered into a contract with Lowell, and do not with to enter into a contract with them, is there no legal basis I have to get around this..or does assignability to a 3rd party mean I have no choice in the matter ? Unfortunately BCard have every right to sell on your debt via an absolute assignment, and Lowells then have the right to collect it as they see fit.

Many thanks

Hope this helps,

Tingy

consumeredge · November 30, 2010

Hi Antony7

If as you say there are various other debts which are likely to now surface with your return to the UK I'd suggest you contact a Debt Management Organisation such as Payplan Limited, if your willing to name and offer to pay all your creditors they can help you with a no obligation pro-rata re-payment plan. In my opinion this would be worth having a look at so as that your clear in your own mind what lays ahead, years of ducking and diving or being in control.

Kind regards

C

Anthony7 · November 30, 2010

Cool thanks will contact them if any of my other debts surface.

Many thanks for your advice I have printed it out.

I assume this is the correct letter to send to Lowells:

Dear Sir/Madam

Re:− Account/Reference Number

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection From Unfair TradingRegulations 2008 (CPUTR).

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

We look forward to hearing from you.

Yours faithfully

Mr A N Other

gem-100 · December 1, 2010

Hi Anthony7, just joining this thread, you will need to add this sentence into the request:

If you intend to send a reconstituted copy of the CCA you must declare the reason why it has been reconstituted and if the original exists and in what form (microfiche) etc.

I would place this after the payment detail and before the: If you are unable to comply...........,

the reason to add this in is if they do send a reconstituted agreement, then you will still need to know if they acually hold an original, they may send a recon copy as this is perfectly acceptable provided it is taken from the actual original, but if they persue you through the courts, then they will have to produce the original, also remember not to sign anything that you send to them as if they do not already have a copy of your signature, then they will need one for the agreement, and it has been known for them to copy signatures and paste them on, so the least help you give them in this area the better, if you send correspondence then just print your name, and that is why it is suggested you send a postal order with your request as it is not signed by you, hope this helps and good luck!

Tingy · December 1, 2010

Yep, that's the letter with the added bit. As said remove anything that may personally identify yourself in previous threads as they do come looking. If we can be of any further help, just ask!

Anthony7 · December 5, 2010

Many thanks Gem.

By "printing my name" does it make any difference if I write it by hand or type it?

jon888999 · December 5, 2010

Most DCA'S are idiots, about 3 years ago A DCA started writing to a relatives address chasing an account, so the letters get returned not at this address. The thing is I still live and am on the electoral role at the address where I applied from and got documentation sent to, but they've never contacted me here. So now the account is fastly approaching SB. So even if they do find me i'll CCA and everything to ensure that it's too late. The accounts not on my Credit report either.

I thought this was relevant as I did plan to move to Spain, but never got there and The OC did get an address for me in Spain first, even though it was just a Post Box in a Shop.

Edited December 5, 2010 by jon888999

Anthony7 · December 27, 2010

Having requested a copy of the CCA by letter (dated 5th December) I received a reply from Lowell dated 10th December saying they will reply as soon as they can with a copy of the CCA from the original lender - Barclaycard. Then on 21st December I received another letter saying "We have been in touch with Barclaycard about the copy of your credit agreement. They have let us know they are trying to retrieve the agreement from their archive. As soon as we have it, we will send it to you." They then say "In the event we cannot obtain a copy of the agreement we will write to you again and inform you of this."

The account I believe is now in dispute. What is the best way to go about this? Would the template below be the best option?: Thanks in advance to everyone who replies

Dear Sirs,

Account no xxxxxxxxxxxxxx

Re: my request under the Consumer Credit Act 1974

This account is in dispute .

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account, you had until NN/NN/NNNN to comply with this request.

You have failed to respond to this request in any way and as such I now put this account into dispute.

Should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt. I now reqire you to confirm that you actually hold a copy of the original signed agreement. If you do not hold an agreement, then I require you to confirm this, or if you do hold the original signed Agreement then I would ask for you to advise me in what form.

I would remind you that the OFT state that creditors should not imply or state that an enforceable agreement exists if that is not the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards.

I respectfully request a response to this letter in 14 days

Just print your name do not use your signature

Tingy · December 27, 2010

You might want to add some of this (some of it you already have):

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you/your client enters into a default situation.

This limit has expired.

As you are no doubt aware section 78(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

Therefore this account has become unenforceable at law.

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

Should you not respond within 21 days I expect that this means you agree to remove all such data.

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

The lack of a credit agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

Anthony7 · December 28, 2010

Thanks for your help Tingy.

I have made a letter that combines the template with your suggestions and it is looking good. Will let you know how it goes and hope you had a good Xmas.

- wanted to check if this final version contains all the essential info. I have changed it more to your suggestion, and omitted most of the template letter to avoid confusion and repetition. Thanks:

Dear Sir/Madam,

Re: Reference Number: x

My request under the Consumer Credit Act 1974

This account is in dispute.

On 05/12/2010 I wrote to Lowell Financial Ltd requesting that you supply me a true copy of the executed credit agreement for this account, you had until 19/12/2010 to comply with this request.

You have failed to respond to this request and as such I now put this account into dispute.

As you will be aware the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you/your client enters into a default situation.

This limit has expired.

As you are no doubt aware section 78(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

Therefore this account has become lawfully unenforceable as you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested.

You will also be aware of the CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8