Help with Statutory Demand from Lowells Hampton Legal-Please Help! ***WON***

[Samifaisal]

I was really hoping that someone would be able to help-I'm feeling extremely overwhelmed.

 

On the 14th of December a letter from an organisation called Lewis Investigations

saying that they had been asked to contact us by their clients Lowell Portfolio I

to inform my husband of their intention to serve us with a statutory demand on the 19th at 9.30am with regards to a debt of £760.

It had been the first we had heard of it and had no idea what it was about.

 

My husband rang up Lowell and they told us it was a debt regarding a 3G contract from 2005 but had not much more info as to what the debt consists of etc.

My husband did have a contract with 3G but says that as far as he was aware it ended in 2007.

 

We then rang 3, who say that they sold a debt of around £320 to Lowell earlier this year but had no more info as they had passed everything over to Lowell.

 

£320 is a far cry from £760-but £760 does take us, just about, in to the range where they can sere a stat demand.

 

I then rang the National Debtline, and they advised me to send a letter recorded delivery and email to Lowell asking for a full breakdown of the debt

and advise them that according to guidelines, if there is a genuine dispute they cannot continue to chase us for the money until the dispute was resolved.

 

Furthermore, if the debt is from 2005, it may well be statute barred.

 

I did this-posted and emailed the letter on the 14th, they signed for it on the 16th.

Nevertheless, on the 19th, at the earlier time if 8am, the statutory demand was posted by hand through our door.

 

We have since then received a letter from Hamptons Legal acknowledging our letter.

Advised us that the debt was not statute barred as my husband had made payment in May 2007.

 

He said that they had contacted 3 about details of the debt and would let us know when they had received a response from them.

 

A bit confused as 3 have already told us that they have no info as it's already with Lowell.

They made no mention of the statutory demand.

 

What should I do?

I would really appreciate an idiots guide

-I have so much on my plate t the moment and this was the last thing that I needed.

 

I'm not sure whether I should contact Hamptons and ask them if they still intend on continuing down the legal route whilst the debt is still being queried, or should I try and get it set aside?!

 

Also, since looking at your forum, I'm wondering should u also make a request under the CCA?!

Or am I too late for that now? PLEASE HELP!!

 

P.S Many apologies for the no doubt numerous mistakes in this-my daughter has just taken 3 hours to go to sleep and it's late!

Edited December 29, 2011 by Samifaisal

[Samifaisal]

Sorry, to add to the above,

 

the statutory demand was posted at the property which I rented solely in my name, but my husband is on the electoral role.

 

However, my husband does own a property with his ex-wife

:it' still in both their names but it's occupied by my husbands eldest son , who is 12 and lives there with his grandmother.

 

It has a small mortgage on it, and it is the intention of both parents to gift the house to their son once this had been paid off (by which time he will be an adult!).

 

I don't know if the mortgage showed up when they did the credit search on him and if this was the motivation for the statutory demand?

[dx100uk]

there will be no CCA for Mobile phone debts

 

i would check your husbands CRA file {see my sig below]

 

this 'phontom payment syndrome is quite common for DCA's to pull

esp where the debt has been passed around.

 

if the debt does not show on the CRA

you defense/set aside will be simple

statute barred defence

 

however, i would WRITE [NEVER EVER PHONE A DCA or their FAKE/TAME solicitors!!!]

 

and ask for PROOF of when & WHO made the payment in 2007.

 

that usually kills the SD dead and they will just forget about it.

 

type in capquest in our advanced search to right

 

have a read up, and you will see that there is alot of things you can do about this SD being served

 

esp the info about the SD being used a debt collection tool - that is VERY MUCH against all industry guidelines.

 

dx

[Samifaisal]

Thanks-I will look up the above bit as the statutory demand has already been served should I apply to get it set aside, to be safe?

[panther12]

I’m sure more knowledgeable folk will help on the SD but I’m sure a judge is not going to be too impressed at them going down the insolvency route on this. Deffo go for the set-aside and get working on your costs as I imagine this will be a nice little earner for the new year coming your way.

[Samifaisal]

Can anyone give me advise on how to proceed with the application to set aside please?

[dx100uk]

these are some of the reasons you can use to set aside including the acts needed hope it helps

 

The Defendant totally disputes the debt.

The alleged creditor has not provided a valid notice of assignment

The alleged creditor has not provided a legible copy of the agreement that contains the prescribed terms and is executed.

The alleged creditor has not provided any compliant default notice as required by the Consumer Credit Act 1974

The alleged creditor has not provided any statements for the duration of the account (it not being uncommon that some debts are made up entirely of excessive charges

The alleged creditor has not provided any proof that the alleged debt has been securitised under English law

Under section 78 (1) of the Consumer Credit Act a formal written request for any true copies of signed consumer credit agreements was sent to ******* via recorded delivery on the ********** (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies) – to date they have not sent any copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

I believe there are no properly executed signed Consumer Credit Agreements

SECTION 78 (1) CONSUMER CREDIT ACT 1974

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

The Consumer Credit Act in section 78(6) States that

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

It must also be noted that the agreement must contain the prescribed terms.

Consumer Credit Act

8.2 What if prescribed terms are missing or incorrect?

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

REFERENCE TO CASE LAW

 

 

 

 

As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:

‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the bankruptcy demand was issued.

DEFAULT NOTICE

 

 

 

 

The Need for a Default notice

Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the demand.

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

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

The Defendant denies that he is liable to the Claimant as alleged in the demand at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

I refer to:

Judge Boggis QC - RE AWAN - [2000] BPIR 241

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

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

As a lone parent/low income earner/low income family with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

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).

 

leeched from debt4get post - dx

see also:

http://www.consumeractiongroup.co.uk/forum/legal-issues/162131-statutory-demands-service-post.html#post1738221

dx

[Samifaisal]

Thank you again...I think that I've gone in to information overload and really don't know what to do-the above post suggests that sometimes it's inappropriate to apply for set aside?

 

I have just drafted a brief letter to ask for the proof of payment as you suggested and will be posting it off recorded delivery tomorrow morning, The SD says I have 18 days to set aside, is this working days? Bearing in mind the recent holiday period?

 

Thanks again

[Samifaisal]

Hello..Again!

 

I've just gone over the SD again. The cover letter advise that I can prevent bankruptcy by calling them to make a paymet arrangemet - so as you originally mentioned a bargaining tool perhaps?

 

In the 'Particulars of Debt' , it states:

 

'The claim of the Creditor is for payment of £7XX.XX being the balance of monies due against a mobile telecommunications agreement made between the Debtor and Hutchison 3G UK Ltd to which the balance outstanding relates to airtime charges and /or rental charges or fees in relation to the agreement that was set up and serviced by the original creditor under account number XXXXXXXXXX.

 

You mentioned in your original post that there is no CCA for mobile phone contract but as they mention an 'agreement' several times, should I ask for proof of any such agreements? I have spoke to 3G who say that they sold a debt of £320 odd to Lowell, so the above cannot be true. In my 1st letter to Lowell,on the 14th & prior to the SD being served, I asked for a breakdown of the charges but in their reply of the 21st (2 days after the SD was served) they say that they have 'requested a copy of the statements of your account from the original creditor and these documents will be sent to you upon receipt'. This is not quite the same - should I go over this again?

The rights and benefits of said account were duly assigned from the original creditor to the Creditor by way of Debt Sale Agreement dated xx/03/11 and notice of assignment having been served upon the Debtor by the Creditor on 3G UK ltd in accordance with the provisions of Section 136 of the Law Property Act 1925.

 

We have not received anything to say that the debt has been passed on to Lowell. should I ask for a copy?

 

The balance of the debt at the date of this demand remains outstanding and due for payment by the Debtor in the amount og £7XX.XX despite previous written and verbal requests for payment being made by the Creditor to the Debtor'.

 

Honestly, the first we knew of this was when we received a letter from Lewis Investigations on the 14th when they told us that they would be serving the SD on the 19th. They do not have a contact telephone number for us, I know that because they tried their level best to get one out of us on the one occasion that we called them.

The SD is signed on th 19th but is signed on the 30th of Novemeber, does this make any difference? Also, if the SD is posted by hand through our door, how can they prove service?

 

Also, to clarify should I avoid mentioning the SD in my letters?

 

thanks

[dx100uk]

ping 42man

 

dx

[dx100uk]

pm

done it for you

 

dx

[Samifaisal]

Ive also noticed on the SD that Part C shows 3G as the original creditor and Lowell as Assignees, and the date for assignment for BOTH is the same, but different to the date in the 'Particulars of Debt' for the debt agreement date. Don't know again if this is significant.

[dx100uk]

42man is good with SD's

 

i've asked them to pop in and help

 

dx

[Samifaisal]

Thanks so much for your help- and patience DX!

[Samifaisal]

Can anyone help me with drafting my letter and putting together my application for set aside please?

 

I've been going through other threads but its a bit difficult to decide what my next step should be- as this is about a mobile phone contract, I think that a lot of the CCA stuff won't apply...but can and should I make a SAR? If so, who should I send this to-the DCA or the service provider and what should I put in the covering letter! Please help!

 

This is not how I thought that we would be spending the holidays-I've had better New Years.

[dx100uk]

quite honestly i'd get the results of his CRA file.

 

then if it doesn't show, i'd be inclined to think this is a xmas flyer

and not a real SD & they know it!!

 

its just designed to make him contact them.

 

dx

[Samifaisal]

Hi,

 

I have requested it, but I don't think that I'll get it until close to the deadline for the set aside application because of the holidays. Really really worried, worried sick, because of I get this wrong the effects could be pretty catastrophic. And you hear all the time about the awful things DCA's get away with.

[dx100uk]

why can you not use a debit card and get the cra now?

 

dx

[Samifaisal]

Hi,

 

I did use a debit card..I've received an email to say it's ready but have to wait till I get a code through the post?

[dx100uk]

that weird it should be instant online?

 

who did you use?

 

dx

[Samifaisal]

Experian. I thought it would be instant too, but apparently not. Requested it the same day that you suggested it, and got this email this morning:

 

Dear Sir/Madam,

 

Thank you for ordering a copy of your statutory credit report from Experian.

 

Your report is now ready for you to see, to access your report you will need:

 

* *- * *your postcode

* *- * *the unique PassKey sent to you by post

 

Etc etc.

 

I'm thinking that I should continue as if the threat from Lowells is real. Once is set aside then I will be able to relax a little. I spend the day looking after the children & the nights worrying about this-absolutely no sleep!

[dx100uk]

pers ithink its 'fake'

 

even if its not, there is nowt to worry about, they wont get it

 

dx

[42man]

Absolutely disgusting behaviour by Lowells, truly appalling.....I plead with you to report them to the OFT as they have taken a stance on Statutory demands in their recent update of their guidelines.

 

It would seem that you have heard nothing until the statutory demand was posted through the door.

 

I would be setting this aside on the fact that the debt has for some reason been inflated by 100% , cn I also presume that you have not seen any kind of notice of assignment ?

 

You will need forms 6.4 (set aside) and forms 6.5 (witness statement) and you have to submit it to your local court within 18 days of when you received the demand.

 

I would be saying something along the lines of that you are completely disputing the debt as it is likely to be made up of unfair charges and interest and they have not provided any kind of breakdown as to how the debt is made up. (was there any previous dispute with the phone company ?)

 

So....

 

The defendant totally disputes the amount and believes that it is mostly made up of excessive charges and penalties.

 

The claimant has not attached any kind of breakdown as to how the debt is made up.

 

The defendant believes that the statutory demand is being used as a debt collection tool.

 

The claimant has not provided any kind of notice of assignment / nor has provided any deed of assignment.

 

(If there is any kind of previous dispute then you should mention this too).

 

Can you state what the particulars of the claim/debt are as written on the demand ?

 

The defendant believes that the debt has been artifically inflated to be above the bankruptcy threshold.

 

The defendant believes that the behaviour of the claimant is against the Consumer Protection From Unfair Trading Regulations 2008 and against the Office Of Fair Tradings Debt Collection Guidance.

[42man]

As far as CPUTR 2008 goes you might like to mention this....

 

The claimant believes that an offence has been committed by the debt collection agency under The Consumer Protection From Unfair Trading Regulations.

 

Offences relating to unfair commercial practices9. A trader is guilty of an offence if he engages in a commercial practice which is a misleading action under regulation 5 otherwise than by reason of the commercial practice satisfying the condition in regulation 5(3)(b).

 

Which clearly state...

 

Misleading actions

 

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(3) A commercial practice satisfies the conditions of this paragraph if—

(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

(i)the trader indicates in a commercial practice that he is bound by that code of conduct,

 

Interpretation2.—(1) In these Regulations—“average consumer” shall be construed in accordance with paragraphs (2) to (6);“business” includes a trade, craft or profession;“code of conduct” means an agreement or set of rules (which is not imposed by legal or administrative requirements), which defines the behaviour of traders who undertake to be bound by it in relation to one or more commercial practices or business sectors;“code owner” means a trader or a body responsible for—(a)the formulation and revision of a code of conduct; or(b)monitoring compliance with the code by those who have undertaken to be bound by it;

 

“trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trade

 

The defendant refers to the code of conduct stated by the Credit Service Association to which Lowells are a member -

 

The code of conduct clearly states

 

q) Where a debt or the sum owed is disputed, as

soon as is practicable, supply information to the

debtor in support of the claim. Where no

information has been supplied by the creditor,

obtain the required support, or failing that cease

collection action.

Edited January 3, 2012 by 42man

[42man]

In light of the seriousness of this action, the frivolous use of the demand, the lack of information provided to the defendant and the upset and worry this has caused the defendant gracefully requests the judge dismiss the demand and grants a bankruptcy restraining order on the claimant.

 

the defendant also requests payment of my expenses in light of this action I quote from authority -

 

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