Lowell -help needed URGENT-BANKRUPTCY PETITION NOW FILED

[RDRR]

Hi,

 

I received a statutory demand from Hamptons Legal/Lowell Portfolio 1 yesterday afternoon, served in person, regarding a Barclaycard account. I'm sending off a CCA request to Lowell and a SAR to Barclaycard today, but is there anything else I need to be doing in the meantime?

 

Assuming Lowell wait the maximum 12+2 days to respond, I'm worried that doesn't leave me much time to then apply for it to be set aside within the 18 day limit.

 

Thanks

[RDRR]

It was a real live person, who said "I've been asked to give you this..." and promptly buggered off again.

[Mr Worried]

Hello Guests.

 

Shouldnt you be learning how not to break the 'LAW'

 

Mr

[RDRR]

They knocked on the door. When I answered they said "? I've been asked to give this to you." and that was it. I think they were wearing jeans, certainly no uniform or any kind of ID.

[harrassed senior]

Also did they ask to confirm who you were, say anything other than as above?

 

You could start working on your 'set aside' so that it is ready the minute they miss their CCA deadline.

 

Forms for Setting Aside Statutory Demands:

 

 

 

http://www.insolvency.gov.uk/pdfs/forms/6-5.pdf

 

http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf

[RDRR]

Well assuming that this person wasn't a court official (and it doesn't sound like it was) or could it have just been a neighbour just dropping it off at your place????

Highly unlikely to have been anyone from Lowells themselves as it would cost them too much in the petrol money and wouldn't be worth their while.

I'm thinking along the lines of "power to contact" maybe???

Anyway - it if wasn't from a court - then it wont have been worth the paper it was printed on.

It wasn't a neighbour. It was almost certainly someone like Power 2 Contact, but regardless it was served correctly and I'm taking it seriously.

 

Also did they ask to confirm who you were, say anything other than as above?

 

You could start working on your 'set aside' so that it is ready the minute they miss their CCA deadline.

 

Forms for Setting Aside Statutory Demands:

 

 

The conversation was literally as quoted above. He mumbled my first name (no surname) as if it was a question, I said yes, he gave me the document and left.

 

Thanks for the links to the forms - I'll make a start.

 

I'm hoping it's just a scare tactic, but the fact that they took the trouble to serve it properly is a little troubling.

[fdpm]

Don't worry about the serving of it - just start getting your defence ready... I was served via my partner! I was in court just a couple of weeks ago with an SD from Lowells/Hamptons and the Judge I got was brilliant and set it aside - however, you can't always depend on the Judge - previously I had one who was on the side of the creditor... so - I would suggest you do some reading about SD's on here and then prepare your application to have it set aside.

 

One point - once you have been to court and signed your affidavit - make sure to ask the court if you have to send a copy to Lowells/Hamptons! I didn't and the Agent that turned up at Court tried to get it adjourned because of it - luckily, I had a good Judge who dismissed it all because of it being an abuse of process.

 

Good luck

[barbara1950]

how can you have a defence, if you actually owe the money? Im in a similar situation but cant think what defence I could have to have it set asid? any ideas or am I getting this wrong?

[harrassed senior]

There are many, many reasons for a 'set aside' it does not just hinge on whether you owe money or not. An SD is not issued by a Court, it is a document downloaded from the internet, and there are many out there that mis-use it shamelessly to 'frighten' people, and yes, people who owe no money whatsoever!

[fdpm]

how can you have a defence, if you actually owe the money? Im in a similar situation but cant think what defence I could have to have it set asid? any ideas or am I getting this wrong?

 

Hello barbara 1950, in response to your question, it isn't so much about whether or not I owe the money so much as whether or not they actually own the debt. My original creditor was a bank... it isn't the bank who were trying to make me bankrupt. My defence hinged around the facts that no copy of my credit card agreement was produced, no default notice was ever issued by the bank and finally, the dca had never sent me a properly drawn up Notice of Assignment - on top of all that, using a Stat Demand is an abuse of process for a matter relating to the CCA 1974 and lucky for me, in my case, the judge made that very clear to the debt collection people and threw the case out of his court with no leave to appeal!

 

If you read around the forum on threads relating to SDs I am sure you will soon see plenty of examples of defences.

 

If you have a case running yourself and would like to see my defence, just let me know and I would be glad to pm you.

[RDRR]

A quick question about dates and my reasons to set aside...

 

Lowell received my CCA request on March 18th. I was served the SD on the (late) afternoon of March 16th. If I have 18 (calendar?) days to apply for the set aside then that makes my deadline this Monday (4th), at the latest, for the application. However they have 12+2 working days to repsond to the CCA request. By my reckoning this gives them until next Wednesday to respond, i.e. after I have to have the set aside application in. So I'm wondering about my grounds for a set aside, as my paperwork is almost nil on this. I don't have copies of the original agreement or any notice of assignment, which it is possible I was sent (the SD says it was) but I can't lay my hands on.

 

They haven't yet responded to the CCA request, although I have received a response (in the last half hour) to the SAR I sent to Barclaycard. I'll go through that properly shortly, but on a quick first glance it doesn't appear to include an agreement of any kind, signed or not.

 

I have seen several possible set aside defences on this site, but none which cover this situation. I'm not looking for a boilerplate defence, as I appreciate every case is different, but would appreciate any pointers.

 

Thanks

[RDRR]

Coincidentally, I'm at the court in question next week for jury service. I assume I can just take the set aside forms with me and get them sworn in at the correct court (it's a combined court)?

[RDRR]

Quick update...

 

I have a hearing for this set for next week. Lowells haven't responded to my CCA request, and I have subsequently sent them an 'in default' letter. The SAR response from Barclaycard didn't contain an agreement of any kind, not even an application form.

 

Is there anything in particular I need to do in preparation for the hearing? I'll be taking copies of any correspondence relating to the SD, but should I have anything else with me?

 

Is there anything else I need to be aware of that might come up at the hearing?

 

Thanks

Edited May 5, 2011 by RDRR

[42man]

Yes don't forget to submit your costs so that they are in the case file at least 24 hours before the hearing - a useful link here - http://www.consumeractiongroup.co.uk/forum/showthread.php?211818

 

And if (as I suspect they won't) they don't turn up in court then you should show the judge this... - http://www.oft.gov.uk/news-and-updates/press/2009/20-09

[RDRR]

Many thanks for the reply 42man. I've been vacillating about whether to go for costs or not, having tried to read numerous lengthy threads on the topic, but was wary of doing so as I didn't want to make a misstep. However, having started to digest the thread you kindly linked me to, I'm changing my mind again.

 

I have a couple of questions, the answers to which may well be in the linked thread but I'll list them here anyway...

 

Regarding loss of earnings, I'm a software consultant (working through a Ltd company of which I am sole director) and will lose half a day's rate to attend the hearing. Is this something I can claim for in full, or is there a 'standard' rate that is applied? If I can claim, what proof do I need of my daily rate?

 

I never actually approached a solicitor about defending this, preferring to rely on CAG instead. I therefore have no estimate of potential legal costs, so am I still in a position to try to claim the 2/3 costs? If so, what would be a good figure?

 

I'm unable to get to the court before the hearing. Am I therefore ok to fax/email the costs claim to the court, and if so do I just make it FAO the court clerk/manager?

 

As I said, I'm still reading the other thread so apologies if I'm asking questions that have already been answered.

 

Finally, how would I stand in the unlikely event that they do turn up, and have a signed agreement with them? Is it still likely that the SD would be set aside, given that they ignored the CCA request meaning I had no prior sight of the agreement?

 

Thanks again.

[42man]

Regarding loss of earnings, I'm a software consultant (working through a Ltd company of which I am sole director) and will lose half a day's rate to attend the hearing. Is this something I can claim for in full, or is there a 'standard' rate that is applied? If I can claim, what proof do I need of my daily rate? - Detail it all in writing, the judge can always say no or reduce it if he thinks it is too much....you don't need to prove what you do, but write in your costs - defenadant is a s/w consultant - paid on an average hourly rate of £35 per hour, I would also claim for £9.25 per hour for your reseaerch into law + postage + mileage (which I think is around 40p per mile)

 

I never actually approached a solicitor about defending this, preferring to rely on CAG instead. I therefore have no estimate of potential legal costs, so am I still in a position to try to claim the 2/3 costs? If so, what would be a good figure? - (I had heard you can claim this but, i'm not knowledgable enough to advise)

 

I'm unable to get to the court before the hearing. Am I therefore ok to fax/email the costs claim to the court, and if so do I just make it FAO the court clerk/manager? - Yes you can fax through to tthe court, but if you do just ring the court to make sure they have received it

 

As I said, I'm still reading the other thread so apologies if I'm asking questions that have already been answered.

 

Finally, how would I stand in the unlikely event that they do turn up, and have a signed agreement with them? Is it still likely that the SD would be set aside, given that they ignored the CCA request meaning I had no prior sight of the agreement? - If for any reason they do do this then you simply say that this is the first sight of it and you would like the judge to order the claimant to provide, statements for the duration of the agreement, complete list of charges applied to the account, default notices, termination notices, deed of assignment and notices of assignment + details of any PPI policies that were in place, and if it isn't going your way then request an adjournment to review....but (on the proviso that the judge orders the other side to provide a full portfolio as above)

[nicklea]

I never actually approached a solicitor about defending this, preferring to rely on CAG instead. I therefore have no estimate of potential legal costs, so am I still in a position to try to claim the 2/3 costs? If so, what would be a good figure?

 

Quite a few people misunderstand this point.

 

You can only claim the LIP rate for the time you spend researching etc and any other losses/expenses that you actually incurred. For example, losing a days pay when attending court and costs of travelling and postage etc.

 

Where the two thirds bit comes in is that is the maximum that you are allowed to claim, regardless of the amount of time that you spend on this. So, even if you were to spend 500 hours researching this and were able to prove it you would still not get more than two thirds of what a solicitor would charge.

[RDRR]

Excellent, thanks again 42man. I think I'll stick with the loss of earnings etc and not push my luck with 2/3 solicitors fees. And if I do get it set aside and am awarded costs, I hope I can find the staying power of HighFly in the other thread in order to actually collect them!

 

Edit: Ah, just seen the post above - thanks for the clarification.

[RDRR]

To clarify, before faxing the court, am I ok to add a claim for costs even though I didn't mention I intended to in my affidavit for the SD set aside?

[42man]

Claim your costs, the worst a judge can say is no...

[RDRR]

Claim your costs, the worst a judge can say is no...

Done! Emailed a PDF to the court and they have acknowledged it. I'll post an update after the hearing next week.

[42man]

You should be fine to use an affadavit......as there is a period of transition....let's not forget you are a litigant in person too...

[RDRR]

OK, I'm just back from a very frustrating hearing...

 

Even though Lowells have defaulted on the CCA request, and as expected didn't bother to turn up at the hearing, in the judge's opinion they are within their rights to make the demand so she dismissed my application to set it aside. She acknowledged that they will be unable to obtain judgement without the agreement, but apparently the OFT guidelines are clear that this doesn't prevent them making the demand in the first place.

 

I got the impression from the start that the judge wasn't particularly 'on side', and she even went as far as to say, and I quote, "you know you borrowed the money", and suggested I contact Lowells to make arrangements to pay in installments. I'm obviously not keen to do this but I'm unsure as to what my next move should be, if any. Is there a way I can make Lowells 'put up or shut up' regarding whether or not they actually have a valid agreement? I suppose the alternative is to just wait and see if they make another move, but I'd rather stay on the offensive if possible as I just want this done and dusted.

[42man]

What did you write in your defence ?

[BRIGADIER2JCS]

subbing