Statutory Demand served by Lowell Portfolio Ltd - Help Needed - *** WON ***

[domino11]

Hi All,

 

Whilst I was out at the weekend, someone called at my house and spoke to my other half (she did not answer the door only talk through an open window). She confirmed that lived at the address and he posted a statutory demand threatening me with bankruptcy. I've been reading like crazy on the forum and think I'm pretty safe but wanted to get some other opinions. Here are my thoughts/questions:

 

1. Can a process server serve the notice on my other half and ask her to pass it on to me? (He did ask if I lived at the address)

2. The Stat Demand has been served by the creditor Lowell Portfolio I Ltd and was assigned to them by SAV Credit Ltd in 2009 who are listed in Part C as the original creditor. The original account was actually with HFC (Marbles) and they are not mentioned at all on the Stat Demand. Does this invalidate it? Obviously, no supporting paperwork was supplied such as the notice of assignment etc...

3. To my knowledge I have never been served a default notice by either Sav Credit/Marbles nor Lowells.

Is my best course of action to apply for it to be set aside on the grounds that I have no idea who the creditor is (although the card number is written in the Particulars of Debt)?

 

Alternatively, should we apply to have it set aside on a longer reasoning based on the fact that the original creidtor didn't have a valid CCA or default notice. I did CCA a company called 1st Credit back in 2008 but they never came up with a valid CCA..

 

All thoughts appreciated, my wife will have to apply for this to be set aside by the 28th May at the latest.

 

Domino

[rebel11]

Hi dom

 

Welcome to CAG

 

The guys will advise as soon as they are available.

 

Have you got any Penalty Charges or have you been mis-sold PPI on the account? You can claim them back with Compound Interest. This would help your case.

[BRIGADIER2JCS]

I would agree it as good a reason to set aside if you have already

found that there is no enforceable agreement for the alleged debt.

For clarification is this debt in your name or your OH or joint.?

[42man]

If you need any help please give a shout....

[domino11]

The debt is in my name only!!

 

I am going to CCA and SAR both the original creditor and Lowells tomorrow, anytghing else I should be doing??

 

thanks

 

Domino11

[BRIGADIER2JCS]

See what crawls out of the woodwork and go from there GOOD LUCK

[domino11]

Thanks Guys,

 

There will be some penalty charges but probably only the £12 ones, no PPI though!!!

 

Dom

[domino11]

A quick question, do I send the CCA and SAR to Sav Credit or Marbles??

[BRIGADIER2JCS]

To the original creditor Marbles this should show you a complete history.

[domino11]

Just had a check back through all of my paperwork and I was originally being chased for this debt by both Robinson way and 1st Credit. I CCA's 1st Credit and they were unable to provide me with anything. Does this mean the account is in dispute or do you have to CCA ever single company that chases you??

[domino11]

Had nothing back from SAV Credit after sending off the SAR and CCA requests, Lowells didn't reply to my CCA but did reply to my SAR stating that they would get back to me within the 40 day limit.

[BRIGADIER2JCS]

The account is in dispute with the DCA which failed your request if the debt has been passed on whilst

in dispute tou should report this to the OFT.

If it't passed on again to anew DCA inform them of the situation usually they drop like hot brick and pass

it back to the OC.

[domino11]

So i can use this in my defence then?

[teaboy2]

Yes they 1st credit are in default of your CCA request therefore lowell can not enforce the debt whilst 1st credit remain in default of your CCA request. So you have grounds for it to be set aside.

[domino11]

Thanks Teaboy, I have the letter I sent 1st Credit with proof pf postage, do I have to priove that they never replied or would it be up to Lowell's to prove that they did?

 

Received letter from 1st credit

Sent CCA Request 10/12 no reply

Received 2nd letter chasing 15/12

sent further reminder 18/12

Received letter stating that they have sought the original agreement from the OC, no reply after that,

 

thanks

 

Dom

[teaboy2]

You do not need to prove anything, they can contact 1st credit themselves in regards to the copy of your Original CCA letter sent to 1st credit. The onus is on them to prove that 1st credit did send you the CCA for which you can strict proof of if they then turn round and claim 1st credit did send one. Though i would get to 1st credit first and send a SAR to them too, which will show if they did send one or not. Which they clearly did not. If Lowell then provide proof that 1st credit had sent you the cca, you would have the SAR from 1st credit to prove that lowell is lying and therefore using misleading practices and fabricated evidence to enforce a debt, i.e fraud.

[domino11]

Taking Forms to the court tomorrow to get this set aside, any late help would be appreciated!!

[teaboy2]

You have everything you need to have it set aside as their failure to provide you with the CCA puts them in default of the account, so whilst 1st credit remain in default of the account, neither 1st credit or any other DCA that the account is passed on to, can enforce the debt through the courts.

 

Just out of curiosity, did Lowell ever write to you or try to contact you prior to issue a Stat Demand? If not, time to complain to the OFT, as they clearly must have been aware that 1st credit were in default of your cca, and decided to chance their arm with a Stat Demand in the hope it would scare you into paying up.

 

Also if the default notice was invalid then that is also grounds to set aside and if Lowell or 1st Credit now own the account then they can not enforce due to the account being unlawfully rescinded off the back of an invalid default notice, and if the account has been sold to a DCA by the Original creditor, then they can not remedy the Invalid Default ntoice either, so the account can not be enforced in court.

 

Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ) but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119).

Edited May 24, 2011 by teaboy2

[domino11]

To be honest, all Lowell have ever sent me is statements. I have no idea if the Default notice is invalid as I have never receied one!!

[teaboy2]

if you have not received one then its definitely invalid DN, and unlawful rescission of contract by the original creditor.

[domino11]

And when I say statements, its statements from them and NOT Sav Credit!!

[42man]

Some help here on filling out the forms...this is for 6.4 - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489

 

As for your 6.5 then there are quite a number of threads here - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

[42man]

Bear in mind that you no longer have to provide an affadavit...just the witness statement (which is 6.5) just in case you haven't found them you can get them here - http://www.insolvency.gov.uk/forms/englandwalesforms.htm

[42man]

Rehash these as required.....

The defendant totally disputes the alleged debt.

 

The claimant has not provided any details of any insurance products that were added potentially in error/possible fraud which would potentially bring any agreement under question.

 

The claimant has not provided any statements for the duration of the alleged agreement

 

 

The agreement - the claimant is in default of a request for a copy of the agreement made under The Consumer Credit Act 1974 - the defendant requested a copy on (date) and to this day the agreement upon which this demand is based has not been provided.

 

DEFAULT NOTICE

 

The Need for a Default notice

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

EXCESSIVE CHARGES

 

1 - The Claimant’s charges which may have been applied to the account are unfair under Schedule 2(e) of the Unfair Terms in Consumer Contracts Regulations 1999, which state that ‘a term is unfair if it requires any consumer who fails to fulfil his/her obligation to pay a disproportionate high sum in compensation. In this case, it is likely that the alleged claimant/ or original creditor has charged an amount that is not proportionate to the amount of any payment not made.

2 - Further, or in the alternative, the claimant’s or the original claimants charges are a disproportionate penalty and therefore unlawful and irrecoverable at common law. (Dunlop Pneumatic v New Garage [1915] AC 79 and also Murray v Leisure Play [2005] EWCA Civ 963)

.THE PERFECTION OF THE ASSIGNMENT

 

1 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2 Since the claimant should have a sent a notice of assignment it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

(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 by 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.

 

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent

 

On the above information I request that the demand is set aside and I kindly ask the judge award my costs in this matter as a LITIGANT IN PERSON.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

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)

[42man]

It is important that you state that it has been in dispute since 2008 (and provide a copy of the letter sent to 1st Credit)