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

[Samifaisal]

THANK YOU SO MUCH FOR THIS!! It's given me a much clearer idea of how to move forward with this. I will try to draft the Form 6.5 affidavit this evening (after I've managed to putthe children to sleep) and will post up here for approval ( ithink a lot of cutting and pasting will be involved!).

 

I have typed of the 'Particulars of Debt' section from the statutory demand (post 9) but it doesn't give any details of how the debt is made up. For the 3 years since my husband has shared a home with me (from Dec 2008), we haven't received a single communication from either 3G or Lowells. When we contacted 3G they told us that they sold a debt of around £320 to Lowells - and they have managed to inflate it by over 100% in 9 months. Can you tell me if I should make a SAR with 3G/Lowell or both? Also, should I write a further letter to them in reply to theirs to ask for proof of the last payment made as suggested by dx? Thanks

[Samifaisal]

Hi

 

I have, at last(!), put together a draft for my Form 6.5 - is there anyway I can get you to take a look at it?

 

Thanks again

[42man]

You can post it up here.....and by the way they prove service by hand by the process server writing an affadavit when it comes to presenting the petition for BR....

[Samifaisal]

ok. So here it is..

 

I, XXXXXXXXXX of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, make the following statement:

The defendant asks for the statutory demand to be set aside. The creditor is aware the debt is in dispute. The Claimants have made no attempt to contact the defendant regarding this alleged debt prior to advising him of their intention to serve the statutory demand. The claimant has proceeded to serve a statutory demand in full knowledge of the fact that the debt is wholly disputed. The claimant has not attached any details or documents to show that the debt exists and is enforceable, and if so, how the debt is made up. Under r. 6.5(4)(d):

a statutory demand will be set aside if no bankruptcy order would be made on a petition based on not complying with it, for example, because it is for an unprovable debt (Levy v Legal Services Commission [2001] 1 All ER 895).

The defendant believes that that the amount of £XXX.XX referred to in the statutory demand includes a large amount of unlawful charges and penalties which have been added to the alleged debt to artificially inflate the disputed amount to above the bankruptcy threshold. In view of this, the defendant avers that the service of the statutory demand is frivolous, intimidatory and an abuse of process intended to pressure the defendant in to paying the full amount of a disputed debt.

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 Trading Debt Collection Guidance. 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 practices:

9. 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

 

p) Take into consideration before determining whether to enforce repayment, all information supplied in relation to the reason for nonpayment, which may include The Common Financial Statement, or the debtor’s future ability to repay. If the debtor has disclosed multiple debt problems, inform them of the availability of accredited advisory services. Where available, provide in all relevant correspondence the name or designation of a specially trained member of

staff who may be contacted regarding financial difficulties.

 

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.

 

Furthermore, 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 Claimant has stated in the statutory demand that the debt was assigned to them from the original creditor on the 04/03/2011 by way of a Debt Sale Agreement dated 24/03/2011 which has not been proven.

The amount detailed in the Claimant’s claim 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 have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

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.

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.

 

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.

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.

The Defendant further avers that the alleged debt may be statute barred. The Creditor has not provided any proof of that the alleged debt is not barred by the Statute of Limitations Act 1980.

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

 

I believe the facts herewith in this form are true.

 

[Samifaisal]

sorry, I did warn it's a bit long. Can you tell me if I add anything to the forms when I submit this to the courts? Like copies of letters etc?

 

Also, should I send a letter to Lowells asking them to prove that a payment has been made?

[42man]

No need to apologise....you seem to have done some of your own homework too.....good effort !!

[Samifaisal]

It's all from CAG!

 

I was thinking of sending this brief letter to Hamptons

 

Dear Sir/Madam,

I acknowledge receipt of your correspondence dated 21/12/2011. In this you state that the limitation Act 1980 does not apply because you allege that a payment was made on the Xth of XXXX 200X. Please could you provide proof of this payment and proof of who made the payment.

I look forward to receiving this information, as well as the previously requested breakdown of the alleged debt.

Yours Faithfully,

[42man]

Lowells have made it quite clear their intentions by submitting a demand....let the judge decide. I can't see any other decision by a judge than to dismiss this. If you have any previous letters/correspondence then do copy it and attach to your witness statement, just make sure it is neat/tidy and numbered correctly.....make sure you make at least 3 copies of everything. Your costs should be in the court file so that they are there at least 24 hours before the hearing (but you have time to do this) Litigant In Person costs are now £18 per hour + 40p permile + costs of letters, copying and I believe £80 per day taken off work...

[42man]

I would just write...it is my intention to set aside the demand and claim my costs.

[Samifaisal]

so you don't think that I should ask them to prove that the payment has been made?

[Samifaisal]

Dear Sir/Madam,

I acknowledge receipt of your correspondence dated 21/12/2011. In this you state that the limitation Act 1980 does not apply because a payment was made on the Xth of XXXX 200X. Please could you provide proof of the payment and proof of who made the payment.

I must inform you that it is my intention to apply to the Courts to set aside your statutory demand and claim costs against you.

Yours Faithfully,

[Samifaisal]

Is that better? Or should I leave out proof of payment entirely?

[42man]

If you didn't make the payment then you write in the witness statement that the defendant believes that the alleged debt may be statute barred. Payment to the alleged creditor is denied....

[Samifaisal]

Well my husband is fairly certain that he hasnt made a payment, but fairly certain is not the same is certain-so I'm not sure that I should put it on the form. Also I'm wandering if the original creditors might have made some phantom DD requests? I know that this has happened to me on occasion.

[42man]

It certainly wouldn't be the first time it has happened as you have probably read on here.....so I would include it in your witness statment for sure....you need solid proof of any kind of payment and not just a statement generated by them either....

[Samifaisal]

Ok. So just send a letter to hamptons telling them I'm getting the SD set aside? Save the rest for the courts?

[Samifaisal]

Hi,

 

Just to let you know that we submitted the application for set aside yesterday-will keep you updated. Thanks again for all the support.

[psmith64]

Subbing to this thread - great help from 42man - good luck with the set aside, looks a definate to me.

[Samifaisal]

Hi,

 

Another update. I've had a flurry of activity this week!

 

Received a letter from Lowells, giving me a copy of my statement..It's basically a page of a bill date June 2007 from the 3G network. I reads:

 

Total monthly chardge: £0

Total charges before VAT: £0

Total charges after VAT: £0

Previous Balance : £3XX.XX

Total Due by X July 2007

 

That's it - except the bank giro credit slip.

 

Bear in mind, in a previous letter states last payment was made in Jan 2007.

 

No breakdown of the account..or indeed why they are now asking for over £700 now.

 

We have received a date for the set aside hearing in March.

 

TODAY, also received a letter from Hamptons saying that we should pay up the sum of £76X.XX in 14 days or else they will be filing a bankruptcy petition.

 

Should I respond to any of this, or just wait for the hearing? I'm wondering if the should show the judge that I am still actively disputing the debt?

 

Thanks-look forward to hearing from you all!

[42man]

Carry on as normal with your dispute....and the only way some of these companies learn is to sting them with your costs....(which need to be in the court 24 hours before your hearing)

[Samifaisal]

Thank you...I'll send out another letter asking for the detailed breakdown of charges.

 

Will be back for more help regarding the costs nearer the time..

 

Thanks again.

[42man]

From your post above it seems they have gone headlong into issuing a demand where the original sum looks to be below the bankrupcty threshold, and some mystery charges have been added. You may also like to quote to the judge the OFT's guidelines on debt collection and highlight their multiple breaches (bearing in mind CPUTR2008 which as I explained earlier Lowells are a member of the CSA which has a CODE OF CONDUCT)....which clearly states

 

d) Comply with Debt Collection Guidance as

Published by the Office of Fair Trading

 

n. making undue, excessive or otherwise inappropriate use of statutory demands when pursuing arrears or debts

 

3.10 Charges should not be levied inappropriately

 

a. misleading debtors into believing they are legally liable to pay recovery charges when this is not the case

 

d. applying unreasonable charges.

[42man]

What is most important is that you simply MUST report this to the OFT......not only is it a multiple breach, but is clearly against CPUTR2008 and a completely inappropriate use of a statutory demand....please keep me posted and we can sort out your costs a week before the court date

[Samifaisal]

At which point should I report them to the OFT? Now, or once it's been set aside? They've not given no explanation of the amounts, or indeed that we even owe the money!

 

Also, now that I've put in the application for set aside, should I bring up the other points (regarding multiple breaches of CPUTR2008) during the hearing?

 

Is there anything else that I need to do prior to the hearing? Will I have to submit all correspondence that we have had in between? And if so when do I do this.

 

Your help, as always is appreciated.

[42man]

Report them once you get it set aside......You need to show the judge how annoyed and upset you are at having to deal with this, and yes reinforce what you have written in the witness statement. If you have evidence of your dispute then it really should have gone with your witness statement, but if need be then you can use it on the day....