Lowell Portfolio - SD HSBC DEBT **SET ASIDE**

[patterns]

CPR - Done

SAR - Done

 

The processing company that delivered the SD do have a license FYI

 

so do i do anything about this SD?

[patterns]

photo bucket link:

 

http://s1119.photobucket.com/albums/k629/fast_asleep/

[patterns]

ok so im going to get read to set aside then i take it?

 

so the grounds for set aside in my case are:

 

- dated incorrect 7/3/11 (proven by processors letter stating delivery on 1st april)

- no county court on the form

- CCA request sent

- CPR sent

- SAR sent (really worried about sending this signed to lowells EVEN with lines through the signature)

- anything else?

 

i go to the court with set aside and affadavit filled in?

[42man]

Before you send any affadavit/defence you need to read other stat demand threads here - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

[nicklea]

As 42man says, have a read of some other threads to see how things should be done.

 

 

so the grounds for set aside in my case are:

 

- dated incorrect 7/3/11 (proven by processors letter stating delivery on 1st april)

- no county court on the form

 

To be honest, I would suggest that these are not grounds for having it set aside. There is no requirement in the Insolvency Rules for the Statutory Demand to show a particular court. Also, it doesn't matter what date is on the SD the important date is the date that it came into your hands, so it is the date that it was served on you.

 

As part of your application, rule 6.4 says that you need to:-

 

(4) The debtor's application shall be supported by a witness statement —

(a) specifying the date on which the statutory demand came into his hands, and

(b) stating the grounds on which he claims that it should be set aside.

 

 

The grounds you have are in rule 6.5 of the Insolvency Rules:-

 

(4) The court may grant the application if—

(a) the debtor appears to have a counterclaim, set-off or cross demand which equals or

exceeds the amount of the debt or debts specified in the statutory demand; or

(b) the debt is disputed on grounds which appear to the court to be substantial; or

© it appears that the creditor holds some security in respect of the debt claimed by the

demand, and either Rule 6.1(5) is not complied with in respect of it, or the court is satisfied

that the value of the security equals or exceeds the full amount of the debt; or

(d) the court is satisfied, on other grounds, that the demand ought to be set aside.

 

- CCA request sent

 

Of all the things you have said this is, I would suggest, the only real ground that you have mentioned

 

 

- CPR sent

 

Bankruptcy proceedings are covered by the Insolvency Rules not, I believe, the CPR

 

- SAR sent (really worried about sending this signed to lowells EVEN with lines through the signature)

 

Unfortunately, this won't stop anything as this is not a defence

 

 

Sorry if I sound very negative but I really do suggest that you do a lot of reading very quickly.

[42man]

Nick...

 

"Bankruptcy proceedings are covered by the Insolvency Rules not, I believe, the CPR"

 

is of course absolutely correct, however there was one cagger who a few weeks ago got the demand set aside for the reason that the creditor had NOT complied with the civil procedure rules.....so it was suggested due to this fact and that it is obvious that judges do vary wildly....I think it might be worth trying though...

 

"(4) The debtor's application shall be supported by a witness statement —" - thanks for this had heard that it had changed recently from an affadavit to a witness statement....

[patterns]

thank you fro both those points. ive done a lot of reading since last thursday practically everyday all day. il go over it again and look at the link you mentioned, thank you.

 

the CCA request is 12+2 Working days. Is the SD also working days or includes weekends? it doesn't specify working days as the CCA request does. if lowells fail to reply to my CCA request as of thursday the 15th that will be in default/dispute, however its cutting it fine IF the SD is NOT working and infact includes weekends

 

hi Guys,

 

i called the courts and they advised the SD is WORKING DAYS. they also said as you mentioned above an affadavit is no longer required, just the 6.4 & 6.5

 

this is good news as it now gives me some breathing space to research. it was delivered on the 1st April so i calculate i have until the w/c 18th to set aside.

 

they actually called me yesterday, i simply said if he can put what ever he wants to discuss in writing please and mentioned i am awaiting my CCA request or a response to.

 

found some template 6.4 and 6.5's - il have a few practice runs and maybe post them on here for peoples thoughts/comments.

 

Thanks again guys, really appreciate all the support on here.

 

High court in london has been very helpful i must say!

 

Hi Guys,

 

its been a few days since i posted so thought id update you all. lowells have failed to respond to any of my requests and are as of tomorrow outside their 14 days to supply my CCA, so i shall be sending them a letter template for this i found reading the posts 42man linked for me:

 

 

ACCOUNT IN DISPUTE

 

Date:

 

Ref:

 

Dear Sir/Madam

 

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/78. This was signed for as delivered on the **DATE**

You have failed to comply with my request, and as such the account entered default on **DATE** (12+2 working days after you made the initial request).

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

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 currently 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.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 21 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. AM I OBLIGED TO GIVE THEM 21 DAYS?????

 

 

I look forward to hearing from you. This should be in writing, I have no wish to correspond by telephone.

 

Yours faithfully

 

 

 

 

- Any advice on the above working? am i obliged to give them 21 more days?

 

 

Here are my grounds for set aside:

 

 

 

 

 

 

I,

Apply for the statutory demand to be set aside as the creditor is aware the debt is in dispute, the creditor has failed to comply with its obligations under the Consumer Credit Act, and I believe that the creditor issued this statutory demand as an abuse of process intended to pressure me into paying the full amount of an alleged debt when such pressure is contrary to the OFT debt collection Guidelines.

 

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 Nasty Bank (UK) Limited for a copy of the alleged agreement on xx/xx/2007 This request was received and signed for on the xx/xx/ 2007. At this present date (xx/xx/ 2007), Nasty Bank (UK) Limited have had 153 working days to comply with the request made, and are therefore in default as stated above.

 

Further, I believe that the amount of £****.** referred to in the statutory demand includes a substantial sum of unlawful penalty charges. Nasty Bank (UK) Limited have not provided any information regarding the charges they have added to the alleged account.

 

Also, I have never received a legally valid default notice for the alleged account as required under the Consumer Credit Act 1974.

 

Again any advice would be welcome

[nicklea]

I would suggest that the penalty charges argument will only be relevant if it brings the toatl amount owed to less than 750 quid.

 

With the default notice it would also help to quote harrison v Link Financial

[patterns]

I would suggest that the penalty charges argument will only be relevant if it brings the toatl amount owed to less than 750 quid.

 

With the default notice it would also help to quote harrison v Link Financial

 

hi Nicklea,

 

so you suggest i remove :

 

"Further, I believe that the amount of £****.** referred to in the statutory demand includes a substantial sum of unlawful penalty charges. Nasty Bank (UK) Limited have not provided any information regarding the charges they have added to the alleged account."

 

And add: " Also, I have never received a legally valid default notice for the alleged account as required under the Consumer Credit Act 1974. I would like to quote harrison v Link Financial in reference to this"

 

im going to go and get this set aside in the high court tomorrow morning. Been told i must take it there as thatas where the SD falls within jurisdiction. Ive given Lowells enough time now.

 

in regards to 6.4 and 6.5 ive been told i can fill these in at home, so il do that now, they did say i can just post them in but id rather pop in personally and maybe get some sort of receipt of delivery to them.

Edited April 14, 2011 by patterns

[nicklea]

With regard to the DN, here is another example:-

 

The Need for a Default Notice

 

6. It is a statutory condition that prior to taking any steps towards enforcement in respect of a Regulated agreement that a valid default notice complying with the terms of the Act must have been issued. If no Default Notice is issued or the notice is bad then enforcement cannot be attempted (Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) ).

 

7. At no time have I received a default notice and, despite requests to the Respondent, the Respondent has not been able to provide any evidence that a good notice was ever posted to me.

With the charges, if it brings the amount claimed to below 750 quid then include it. If it doesn't bring the amount below 750 then it won't help you.

 

If you live in London it is the High COurt but things changed last week and it should now be the Central London County Court. The RCJ may still accept it though, but don't be surprised if they tell you to go to the Central London COunty Court instead. Here's a link describing the changes:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?300745-CapQuest-S268(1)-Insolvency-Act-1986&p=3357347&viewfull=1#post3357347

[patterns]

ok ive edited the statement to as follows:

 

i,

Apply for the statutory demand to be set aside as the creditor is aware the debt is in dispute, the creditor has failed to comply with its obligations under the Consumer Credit Act, and I believe that the creditor issued this statutory demand as an abuse of process intended to pressure me into paying the full amount of an alleged debt when such pressure is contrary to the OFT debt collection Guidelines.

 

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 Nasty Bank (UK) Limited for a copy of the alleged agreement on xx/xx/2007 This request was received and signed for on the xx/xx/ 2007. At this present date (xx/xx/ 2007), Nasty Bank (UK) Limited have had 153 working days to comply with the request made, and are therefore in default as stated above.

 

Also, I have never received a legally valid default notice for the alleged account as required under the Consumer Credit Act 1974.

At no time have I received a default notice and, despite requests to the Respondent, the Respondent has not been able to provide any evidence that a good notice was ever posted to me.

 

It is a statutory condition that prior to taking any steps towards enforcement in respect of a Regulated agreement that a valid default notice complying with the terms of the Act must have been issued. If no Default Notice is issued or the notice is bad then enforcement cannot be attempted (Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) ).

 

 

I include 3 copies of the following exhibits to support my request for set aside:

 

a) Statutory demand served by creditor

 

b) Letter by creditors processor notifying me of the date statutory demand is to be served

 

c) CCA request to the creditor, with proof of postage and proof of delivery.

d) Letter in response to Statutory demand served by the creditor.

e) Letter of notice of default of the above with proof of postage and delivery.

 

 

 

 

 

Should i also include my CPR request and SAR request? i remember you mention these arent applicable so ive left them out, just wondering if it will support me in that i ave maintained and tried to stay in communication with the creditor??

 

Also should i include my request for CCA to the original creditor????

 

thanks again

 

Hi guys,

 

Was going to get this set aside this morning but I got a letter from HSBC re- my request for CCA's. They replied back saying the account information they have is different and that I would need to sign to verify???

 

I was under the impression you do not have to sign anything for a CCA request? Is there any legislation I can find to quote this?

 

Should I respond to HSBC? as now the debt is owned by lowells wondering if there's any point. Although this letter could help my case with setting aside, thinking I should add it to show HSBC don't have any record of matching details with lowells that I owe any money or that these accounts exist in my name!

 

Advise greatly appreciated

[42man]

You do not need to provide a signature - send this recorded - http://www.consumeractiongroup.co.uk/forum/content.php?433-Debt-Letter-When-company-refuse-CCA-due-to-no-signature They can only ask for a signature for a SAR...NOT a CCA request.

[patterns]

Ok great, it was sent recorded

 

Shall I include this in mt set aside statement?

[patterns]

set aside application submitted yesterday. was told they have seen lowell come up alot recently. they guy was really nice and said either they will dismiss it or set a hearing date. either way i should hear from them within the next 10 days.

 

i just hope it doesnt fall on the 18th-23rd may as i have a holiday booked! theres nothing you can do to change the date is there?

[patterns]

Hi guys,

 

just to keep you all updated....

 

I called in today as i have heard nothing still, and they have sods law told me the hearing date in on the 22nd May!!! exactly when im away. iv asked them is there anything i can do, they kindly mentioned 3 options:

 

1 - request the file and see if hearing date letters have been sent out yet or not. if not it may be possible to just ammend. i have to call back tomorrow.

 

2 - write to the other party and if you can get it in writing they are happy to postpone you can do so

 

3 - fill out form 7.1a along with £70and a covering letter

 

i have to take this holiday as my grandma is not well. Im thinking il hold out til tomorrow and see if they have hopefully not sent the hearing date letters out and see if i can reshedule. If not il pay the fee and fill out form 7.1a.

 

Does this guarantee a postponing? do i have any other options anyone can think of? what happens if i dont attend?

 

also just wondering in regards to the hearing itself, presuming Lowell turn up, what is expected of me? do i need to prepare somehow or is there something i should be aware of?

 

once again thanks for all your help and il keep you updated.

[BRIGADIER2JCS]

Best to take all the documentation you have, sort it into chronological order so you can keep up with what the

claimants representative has to say, try to think what you could possibly be asked by them or the judge

and write responses on a pad to refer to it.

Edited May 5, 2011 by BRIGADIER2JCS

[patterns]

Guys,

 

wanted to give you all an update.

 

went to court and lowells solicitors turned up and tried to intimidate me into not going in!!! was shocked!!! she twisted her words to suggest she knew how it would go and they had new evidence i owed the money. Nasty and cheeky.

 

had a nice district clerk. she did probe as to how would i not know i owed that much money, however my argument was solid:

 

- original creditor did not acknowledge debt to my name with that account

- i sent 4 requests for CCA, SAR and numerous replies

- i have paid ALL my debtors!!!!

 

Solicitor as a last attempt pleaded (ALOT) to go for a hearing so they had time to get more evidence. She was slightly ill prepared and the district was a sharp cookie and when probed, the solicitor crumbled, couldnt answer Q's etc

 

finally she said she felt they didnt have enough evidence and they had ALOT of time to respond to my requests.

 

End of

 

The district clerk DID actually smurk and say 'i wouldnt be surprised if this wasnt the last the of this' well in so many words. Think she meant there may well be another attempt etc.

 

Any idea what i should do IF anything from here???? and what could they do from here also?? just being pre-emptive so as not to .have some nasty surprises in the future.

 

Finally many many many MANY thank you guys - seriously! its one thing i guess when people are serial debt dodgers and abuse the system, but its refreshing when justice works! im a genuine case and so pleased... honestly ive said all along even IF lowells had just been reasonable with me and not forced me to pay £1100 p/m or im going to be bankrupt - i would have made an arrangement, i have cleared ALL my debts to date. They fored me to have to go to this through purely no alternative. Greed and stupidity.... serves them right! i have no respect for these people what so ever.

 

Id like to add that i believe as ive been so kindly helped here id like to offer my help in return, well in an unprofessional way of course... any advice i can give anyone through my experience i will be always happy to help.

 

All the best and i wish you all luck in life

[42man]

Very well done Patterns, makes things easier when you have a good judge, bit disturbing to hear about the solicitor !! Did you get your costs ?

[BRIGADIER2JCS]

Weelll done:madgrin:

[patterns]

haha! no i didn't. the judge gave a me THAT look when she asked and i knew i should say 'no thats not important' i just sensed if i did ask for costs she may have changed her mind - she was very nearly swayed by the solicitor,... the judge was deliberating and said 'well it seems there is a dispute here between the 2 parties' - she said this 3 times and from my understanding that if there's a dispute it goes to hearing so i was on edge!

 

if i had talked too much i would have probably shot myself in the foot however i can honestly say i was lucky as well as reasonably well prepared! people buy into people after all, i was sincere in my actions. i didn't try to act 'smart' like i knew the law or argue or like i was being clever, i said it how it was as a civilian, polite with respect and my facts and let the judge do her job, i had done all i could, and in my heart i knew i had tried to be fair with lowells.

 

Yep that solicitor was a slippery little thing. it was my first experience of that process, it wasnt a pleasant but in many ways im glad ive experience it now. to add insult she passed me i was very civilized, shook her hand and talked to her. she admitted she was hired by lowells and 'only doing her job' in the end both her and the judge empathized with me, but i guess business is business.

 

Really happy that chapters over (for now i guess anyway) it was a harsh lesson in life i learnt a few years ago and believe me il make sure i do everything i can to ensure im never in that position again.

[patterns]

Brigadier.... thank you!!!! i can honestly say all the praise is for you guys!!!! i merely did what good people have spent alot of time and effort to post on here and advise those less educated to do. Yes i researched for weeks daily, solid, had no sleep, was stressed and found my answers but i can say this forum was the reason i won.

 

i really hope this thread acts as a good resource for someone who from scratch falls into the situation of having an SD threatened upon them, what to do and how to go about it.

 

I really cant thank you all enough, i have to repay this forum!

[citizenB]

Well done, will amend title to reflect set aside.