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Lowell -help needed URGENT-BANKRUPTCY PETITION NOW FILED


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What did you write in your defence ?

I can quote it in full if you'd prefer, but it was basically...

 

  • Debt is in dispute due to default on CCA request
  • Lowells are using the insolvency act to circumvent the provisions of the consumer credit act
  • No default notices received
  • No statements provided

I didn't mention the lack of a notice of assignment, as even though I don't recall receiving one I was wary of swearing to this as I can't be absolutely sure.

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I think you are right about the judges attitude.

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Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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OK....well I just re-read your thread and I would send Barclaycard a Letter Before Action as they haven't complied fully with your SAR request as they didn't provide the agreement - you can find an example here - http://www.consumeractiongroup.co.uk/forum/showthread.php?178660 This could be crucial. Did you include the high court cases in your defence esecially so as there are loads of cases where the dispute is major and despite 'owing' the money it just wasn't enforceable....ridiculous, no consistency in judges at all...

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

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Did you also mention penalty charges in your defence ? any PPI premiums ?

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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Does this judgement mean that Lowlife can keep demanding but court action will not be appropriate?

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Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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Thanks, I'll take a look at the 'letter before action' possibility. I briefly mentioned penalty charges in point 4 (see below), and there shouldn't be any PPI on the account. The judge said it wasn't necessary for the amount claimed in the SD to entirely accurate.

 

She mentioned a couple of cases to back up her opinion, including Tesco v Rankine.

 

It's possible (probable) my defence wasn't all it could have been, but I'm new to this and am doing my best... :-)

 

The defence in full was...

 

I do not admit the debt because:

 

1. The debt is in dispute. The creditor has defaulted under section 78 of the Consumer Credit Act

1974 for failing to provide a copy of the alleged agreement on request within the prescribed period.

The prescribed period as stated in SI 1983/1569 Consumer Credit (Prescribed Periods for Giving

Information) Regulations 1983 is 12 working days. Under the provisions of s78 (6), the creditor is

not entitled to enforce the alleged agreement while this default continues.

My request under s78 of the Consumer Credit Act 1974 was sent to Lowell Portfolio 1 Ltd on March

17 2011 and received and signed for on March 18 2011. At this present date (April 7 2011), Lowell

Portfolio 1 Ltd have failed to comply with the request made, and are therefore in default as stated

above

 

2. And further that the alleged creditor is bringing a claim under the Insolvency Act 1986 in order to

circumvent the lawful prohibitions placed upon him by the Consumer Credit Act 1974.

 

3. The alleged creditor has provided no Default Notices in accordance with the Consumer Credit Act

1974 which states that in order for it to be valid; the Default Notice must be in the prescribed

manner and be correct.

Notwithstanding the above, it is also drawn to the courts attention that no Default Notices required

by s87 (1) Consumer Credit act 1974 have been attached to the petition.It is denied that any

Default Notices in the prescribed format were ever received and the Defendant puts the Claimant to

strict proof that said documents in the prescribed format were delivered to the defendant

 

4. The defendant has not been provided with any statements for the duration of the alleged

agreement (it not being uncommon that some debts are made up entirely of charges)

 

I gracefully request -

The Judge dismisses the demand on the above evidence.

The Judge order the claimant to delete all adverse information held on my credit files.

The Judge orders the claimant to pay my full costs in light of the distress and damage to my family

and to make an indemnity award

 

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).

 

I believe the facts herewith in this form are true.

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I would hazard a guess that in most courts that would be a more than adequate submission to achieve set aside this from person observation of such actions

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Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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I think you were very unlucky with the judge :(

 

My defence against 1st Cretins was similar and the judge set it aside with no problem and awarded me costs. It really is about time the judges in this country all sang from the same hymn sheet, its getting beyond ridiculous.

 

Surely if the judge says they can't enforce without an agreement then they can't make you bankrupt without one either, thereby making the SD pointless?

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I wonder if it would be possible to challenge this judgement as reading it again it is contradictory.

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Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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I wonder if it would be possible to challenge this judgement as reading it again it is contradictory.

I wouldn't imagine so, and bear in mind you're relying on my memory for what the judge actually said during the hearing. However I don't think I've misrepresented anything.

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Are there transcripts of the hearing kept and made available as in other types of court trials/hearings?

I am sure that the judge has more than just notes made by hand during the hearing as He/She has to write a narrative judgement.

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She recorded the hearing, but I don't know if it'd possible to get a transcript.

 

I'm not really interested in attempting to challenge the judgement as it seems pretty futile. I'm more interested in discussing my next move,and that is likely to be a 'letter before action' to Barclaycard. I'll trawl through their original SAR response again to see exactly what was included, but I'm absolutely certain there was no agreement.

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IMHO I think you will need some evidence from the hearing to give a basis for any further action I bow to those who may have more insight and knowledge on this.

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Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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Sorry to hear your news RDRR. I guess that is what worries OH that you are down to the luck of which judge you happen to get.

 

So if we went ahead with our set aside (in simular circumstances to yourself), if we lost as you did (sorry about that) does it just mean the clock starts again on the SD with the possible bankcrupcy to follow etc, OR does it mean the SD becomes instantly in place and they can proceed to attempt bankcrupcy?

 

hope you have further options RDRR.

GOOD LUCK

 

ali x

Edited by alibobsy

Btw I am no expert just give notes based on what I have read on here and other forums/sites, plus my own experiences and investigations.

 

All ccj's now dropped off file, 2 yrs to go to clear file.

All old debts either settled or made unenforcable.

 

RBS MPP-Full offer at 8 wks from first complaint

RBS Overdraft loanguard-full offer at 8 wks from complaint

Citicard ppi-with FOS finally paid 8 months after offer through FOS!

Capital one x2- with FOS

Monument ppi-with FOS

aqua x2 ppi-partialled settled still pushing for the rest

Black horse ppi-offers made and accepted except for one early loan they say no info held-still pushing for payment

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If you have failed to get the SD set aside then the creditor can apply at any time for a bankruptcy order. However. I would suggest that it is unlikely unless it is for a large sum and you have a large amount of equity in your home.

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If the applicant cannot produce evidence that the debtor owes the debt, how can this happen? surely there is a means of appeal?

:lol:

Successfully claimed back mis-sold PPI (Barclays Bank) 2009-10 (£8500)

Ran a paid-for DMP. Deeply respect those who self-manage a DMP; it is possible to do with the help of fellow CAGGERS

Offered F&F to all my creditors. All closed out including a particularly intransigent and stubborn one - who eventually saw sense after 10 months of nonsense!

Does not condone debt avoidance but violently disagrees with the antics of debt collectors and their behavior towards the ones trying to pay. I am a great believer in what goes around, comes around. Keep up the good fight!

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Exactly if he judge has said it would not succeed with out the CCA what is the point.

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Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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  • 2 weeks later...
If you have failed to get the SD set aside then the creditor can apply at any time for a bankruptcy order. However. I would suggest that it is unlikely unless it is for a large sum and you have a large amount of equity in your home.

 

The total figure is around 2k ish (don't want to give away too much info) so relatively low in the grand scheme of things- only one "account" would be above the £750 level. But there is some equity in the house. Prices have fallen and I would guess if sold at auction then costs and the mortgages off they might struggle to get anything. But on paper they may well see it as in equity.

 

What are the costs to petition for bankcruptcy? If they are about the figure asked for it would seem crazy for them to go for it.

 

ali x

Btw I am no expert just give notes based on what I have read on here and other forums/sites, plus my own experiences and investigations.

 

All ccj's now dropped off file, 2 yrs to go to clear file.

All old debts either settled or made unenforcable.

 

RBS MPP-Full offer at 8 wks from first complaint

RBS Overdraft loanguard-full offer at 8 wks from complaint

Citicard ppi-with FOS finally paid 8 months after offer through FOS!

Capital one x2- with FOS

Monument ppi-with FOS

aqua x2 ppi-partialled settled still pushing for the rest

Black horse ppi-offers made and accepted except for one early loan they say no info held-still pushing for payment

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Can I just confirm if a DCA apply for bankcruptcy they will have to produce a valid agreement in the same way they would for a CCJ. Giving you time/method to defend?

 

ali x

Btw I am no expert just give notes based on what I have read on here and other forums/sites, plus my own experiences and investigations.

 

All ccj's now dropped off file, 2 yrs to go to clear file.

All old debts either settled or made unenforcable.

 

RBS MPP-Full offer at 8 wks from first complaint

RBS Overdraft loanguard-full offer at 8 wks from complaint

Citicard ppi-with FOS finally paid 8 months after offer through FOS!

Capital one x2- with FOS

Monument ppi-with FOS

aqua x2 ppi-partialled settled still pushing for the rest

Black horse ppi-offers made and accepted except for one early loan they say no info held-still pushing for payment

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I think they must be able to prove the debt beyond doubt.

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

Please Consider making a donation to keep this site running!

Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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  • 2 months later...

OK, this reared it's ugly head again in the post this morning, in the shape of a notice from the Land Registry that my address is involved in a bankruptcy petition.This comes as something of a shock, to say the least, as I have heard nothing from either Lowells or the court since the SD set-aside fiasco.

 

The state of play is that I didn't send a 'notice before action' to Barclaycard, as suggested above, as soon after the failed SD set aside Lowells sent me a load of copy statements and a copy of the original agreement (such as it is). I have scanned the agreement and put it on photocucket, here:

 

http://i1192.photobucket.com/albums/aa339/rdrr1/bc_cca/barclaycard_ccacopy3.jpg

 

This is just to give people an idea of what it looks like, as none of the important stuff is legible even on the original. It looks like it has been taken from a microfiche or similar, and is actually the application form. The dark boxes on the right hand side, to do with the Consumer Credit Act, are completely illegible other than my signature and the date. I have a high resolution scan if anyone wants it, but it probably won't help you any more than what is there already.

 

So my question is, how worried should I be and where do I go from here? From everything I have read on the matter I can't see how this 'agreement' is enforceable. However my confidence in the courts, especially this court, to do the expected/right thing has been severely dented by the refusal to set aside the SD. I'm obviously terrified of going bankrupt, but am not in a position to pay the outstanding alleged debt in full (approx £7K).

 

I'm also worried about how far through the process things may have already travelled without my knowledge, given my first indication of this stage was from the Land Registry.

 

Help please!

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That is not an agreement, as you say, application forms have been accepted as

proof of debts as long as all the personal details and prescribe text,

and signatures are in place, and with statements connected to the

account showing activity.

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

Please Consider making a donation to keep this site running!

Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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Poop sorry about that RD, to be honest after taking further legal advice and reading dozens of threads on here and other forums, we decided we couldn't take the risk of them making us bankrupt and negotiated f & f's (so at least we didn't have to settle the whole figure). But our total debt was closer to 2k not 7k. We were adviced that bankruptcy courts would take very little not as to contract issues ie if the agreement is enforceable or not and may well take the application form and statements as enough proof that the debt exists.

 

I have seen threads on other forums that suggest Lowell and some of the others are starting to actually go through with bankruptcies.

So although the advice on here to either ignore SD's or try for a set aside (not guaranteed by any means), if you have equity or on paper possible equity I believe this is a risky strategy. I would have preferred not to pay the blood suckers anything, but we weighed up the risks and that was the best route for us.

 

I assume some of the bods on here can tell you if that doc is real RD and can advice you, we ducked out before that stage so can't say, I wonder if they may still be open to offers? Hate to say it but you may need to consult with a real life lawyer at this stage.

 

How much of an issue would bankruptcy be for you RD, we are getting sorted and all our current bills are up to date and we have a mortgaged house and 4 kids, plus within 2-3 years our credit file will be completely clear for both of us so us it would have been a big deal for us for OH to be forced into bankruptcy, but for someone without equity or renting with little or no capital/assets and in a mess with finances then it could be a blessing in disguise.

 

Good luck Rd whatever you decide to do.

 

Ali x

Btw I am no expert just give notes based on what I have read on here and other forums/sites, plus my own experiences and investigations.

 

All ccj's now dropped off file, 2 yrs to go to clear file.

All old debts either settled or made unenforcable.

 

RBS MPP-Full offer at 8 wks from first complaint

RBS Overdraft loanguard-full offer at 8 wks from complaint

Citicard ppi-with FOS finally paid 8 months after offer through FOS!

Capital one x2- with FOS

Monument ppi-with FOS

aqua x2 ppi-partialled settled still pushing for the rest

Black horse ppi-offers made and accepted except for one early loan they say no info held-still pushing for payment

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Nothing new in the post today. What should I be expecting, i.e. what form would a bankruptcy petition take? Does it have to be served personally, in the same way as a statutory demand?

 

I'm probably going to seek the advice of a solicitor, but any help from your good selves would be much appreciated.

 

Thanks also for the title change mods :-)

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