Weightmans SD Threat ***CLAIMANT WITHDRAWS***

[psmith64]

I first had contact about an HSBC debt from Weightmans back in December 2006.

 

I was asked to go into a voulantary charging order over my house.

 

I of course never agreed to this.

 

Sometime in 2007 the debt was assigned to Pheonix recoveries, at that time I put in CCA request.

 

All I got back was a fairly illegible Application form with no prescribed terms.

 

I have since 2007 received letters from them, which I haver always responed to in the same manner saying the account is in dispute.

 

During 2011 the acount was transferred to Marlin Capital and then again, another Marlin Company.

 

I wrote back saying they could not transfer the account whilst in dispute, but nevertheless CCA'd and more recently put in CUPR request. Both of these requests have gone unanswered.

 

I have now in January 2012, 5 years and 1 month after the first communication, and 4 changes to who the debt supposedly belongs too now been told that a Statutory Demand is on its way to me.

 

I have written to them again today stating the account is in dispute and that should I receive a Statutory Demand as intimated I will apply for it to be set aside.

 

To any of the more knowledgeable on here, do you really think with all the threatograms I have in my possession form them, no enforceable agreement that they really will send me a Statutory Demand ??

 

If they do send one, will I be successful in getting it set aside, and if I need to do this, how would I go about getting it set aside.

 

Oh, by the way, they ended the letter by saying that if I phone them, they would still be willing to come to some sort of agreement. Amonst all the rubbish they have sent me over the years at various times they have offered me 50% off of the balance if I paid up !!!

 

Thanks in anticipation.

[42man]

It is clearly in dispute....edit this and send this recorded delivery to Weightmans...

 

Dear Sirs,

 

I write in response to your letter dated XXXXX

 

Your letter is incorrect and frivolous, a legible agreement which underpins this account has not been supplied despite a perfectly valid request and furthermore, it is suggested that notwithstanding the failure to supply a copy, the agreement itself is improperly executed, devoid of all prescribed terms and deficient in respect of detail relating to APR, total charge for credit and statements of rights ,remedies and protections as required by schedules 1,2 and 6 Consumer Credit Agreements Regulations 1983

 

Therefore the agreement as outlined in section 65 (1) Consumer Credit Act must be laid before the court to be granted an enforcement order before any further action can be taken

 

It is my view that the court would not grant such an order due to the deficiencies that I have outlined within the agreement, further more this has already been raised with (names of previous DCA's / Bank here) yet I note they have still assigned the account over to yourselves and the absence of any documents disproving my points itself speaks volumes

 

Therefore, I would indeed welcome the opportunity to place this before the court. furthermore should you proceed with the threats to issue a statutory demand or a court claim I will make an immediate application to have it set aside for the grounds outlined above, also I shall refer the judge to this letter when the matter of costs falls due

 

I trust this outlines my position clearly enough for you

 

Yours faithfully...

 

(You could also add -

 

I am a great advocate of recycling and have enclosed your previous correspondence for your recycling operation - Paper recycling - Wikipedia, the free encyclopedia - This site gives some useful information for your company's recycling effort

[psmith64]

Thanks 42 Man for your help, will get that letter off today and keep you all posted as to progress

[psmith64]

Hi again 42 Man,

 

I sent the above letter and they acknowledged it straight away with a recorded letter back. They sent the same information with it that they sent me 2 years back, a poorly copied Application form with no prescribed terms, and a set of terms and conditions dated 4 years after the application.

 

Interestingly the T & C's they sent does not contain any interest rates and refers to a document that would have come with the card. I do not ever remember receiving this document after issue of the card or with it, they have crteinly not provided this document which the T & C's refer to.

 

When I got home today I had a note through the door from their process server which says they are going to attempt to deliver again on 18th January, and if I am not in then they will put through the letterbox and service of said demand will be deemed to have been affected by way of insertion through your letter box.

 

Is there anything else I should do in the meantime, as it looks like they are going to issue the SD.

 

Do you think this will get set aside ?, I have no valid CCA as I see it.

 

Any further help at this stage would be appreciated

[psmith64]

One other thing, If I do have to go to court would be acceptable for my husband to attend on my behalf ?, or would I also need to go too ?

[42man]

You should go, but your husband can speak on your behalf.......

[42man]

So is the application form still illegible in parts ? You could go on and continue to write letters to them, it seems that they are attempting to hoodwink you by giving you an agreement that is dated 4 years AFTER you own !!! dreadful......I do think you will get it set aside.....

 

If you really want one more letter to send to them then you can say this, (but I suggest you may or may not want to edit it first !!)

 

Dear sirs I am in receipt of your recent letter dated (XXXXX)

 

Despite your recent correspondence, you have not provided me with a legible agreement that contains all the prescribed terms as laid out by the Consumer Credit Act 1974 in reply to my legal request for a copy of my agreement.

 

I am afraid that I consider that this account is still in dispute, and furthermore your attempts to provide me with potentially fraudulent documents will not be accepted. and I will not continue to get into any kind of 'litigation' via the postal service.

 

Also the fact that a process server is attempting to contact me is unnacceptable.....

 

I suggest you re-read the contents my last letter and I would refer you to the legal case of Arkell v. Pressdram. Furthermore in my set aside I will request significant costs / damages and a bankruptcy restraining order.

 

I trust this makes my position completely clear.

Edited January 9, 2012 by 42man

[psmith64]

The application form is still legible in parts, but it clearly has no prescribed terms within it at all.

 

I think I will include the Arkel l reference in, it seems more polite !!!

 

I have all their intimidating letters spanning over 5 years which on many occasions say within 7 days they will commence legal action, which have taken many hours of my time over that period, along with mental torture and distress which I feel that I am entiltled to some form of compensation for.

 

In my set aside would be worth referencing to these letters, and including copies.

 

I don't ever recall having a default notice either, they have never sent me a copy.

 

Any guidance on set aside would be appreciated, I have found quite a few on here - is it worth referring to case law in the st aside.

[42man]

We'll deal with the stat demand when it comes.....do let me know when and if it arrives.....

[42man]

Do you know who the process server is by the way ? If you do send me thier name / address / tel number by PM and I will check whether they have a creadit licence....

[psmith64]

Thanks 42man - I will let you know. It sounds like it will bearing in mind a process server visited my home today while I was at work.

 

It can't have done them any favours by keeping this up for just over 5 years, that in itself speaks volumes

[42man]

The stupid thing is they will fail, especially so as you have a clear and bona fide dispute......have you sent a SAR to the original creditor ? if not then I suggest you do this ASAP.....you have to be seen to be making all reasonable efforts to get any information.....

[42man]

When the process server calls ask for ID / name of company......

[psmith64]

I haven't SAR'd original creditor, but will do this right away. I will PM with process servers details

[42man]

OK thanks....will check them out, if they don't have a credit licence then it is possible that it can be used as an abuse of process....

[42man]

I don't think you need to write any more, if they received your last letter (as suggested above in post #7 above)...

 

You'll need forms 6.4 (set aside) and 6.5 (witness statement) which you can find online, once you have filled them out then you you can take it to your local court (but check first to see if they handle bankruptcies / insolvencies as not all courts do)....

 

One important thing here.....when was the last time you ever made a payment towards the account ?

[psmith64]

42man, thanks for the reply - have PM'd you further info

[42man]

I think your defence should consist of non production of CCA , illegible agreement with no prescribed terms, statements for the duration of the account, possibility of missold PPI, charges, no default notice,

 

I think it MAY be possible to use the offence under CPUTR2008 as the CSA has a code of conduct (which CPUTR2008 refers to), but i'm not sure of the strength of this...

 

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.

[42man]

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.

[42man]

This is also part of the CSA Code Of Conduct

 

6. Purchased Debt Guidelines

Each member shall:

b) Adhere to all relevant requirements under the

Consumer Credit Act 2006 and any other

relevant legislation.

[psmith64]

Again, thanks for your input 42man, will be back in touch over the weekend after I have researched a little more and drafted my avidavit on 6.5

[42man]

Have a read here - http://www.consumeractiongroup.co.uk/forum/showthread.php?334524-Lowell-portfolio-served-me-SD-HELP!!!/page6

[psmith64]

Thanks 42Man, do you think that will suffice in my case. Its similar and a lot less wordy so that is good.

[psmith64]

A Big thank you to 42Man - my statutory demand has been today withdrawn.

 

A message to everyone, stand your ground and don't these people frighten you into paying something that is not payable.

 

This is the final letter that brought about the withdrawal which I hope may help someone else:-

 

For the attention of Mr xxxx xxxxx,

 

Dear Sir,

 

RE: Your client xxxxxx, Account xxxxxx,

 

I confirm receipt of your letter dated xxxxxx

 

I wish to correct your statement in your letter which is incorrect that I am now liable to pay the debt in full or alternatively provide security for the debt to the satisfaction of the client.

 

As you know, and as you go on to state I have the option to visit my local court to apply for set aside of this statututory demand.

 

As per much of your companies previous correspondence to me, your opening paragraph is very intimidatory and incorrect as you already know from my letter of the 4th January 2012 that I will be applying for set aside of this statutory demand.

 

As per your process servers initial visit to my property with the letter that was posted through my door, your stautory demand although dated xxxxx was not served until Wednesday xxxxxx through my letter box. In accordance with the details contained within the statutory demand this means I have until February xxxx to visit my court.

 

I confirm to you today that I will be visiting my court to apply for set aside and have completed forms 6.4 and 6.5 in preparation on February xxxxx

 

Despite your recent correspondence, you have not provided me with a legible agreement that contains all the prescribed terms as laid out by the Consumer Credit Act 1974 in reply to my legal request for a copy of my agreement, on several occasions now, and whist this dispute has been traded between three differecnt parties.

 

I am afraid that I consider that this account is still in dispute, and furthermore your attempts to provide me with potentially fraudulent documents will not be accepted and I will not continue to get into any kind of 'litigation' via the postal service.

 

As per your previous correspondence, some now dating back five years you have threatened and have had plenty of opportunity to resolve this situation and let a judge make a decision through the county court.

 

You have chosen not to in the absence of an enforceable agreement. As per my recent letter you have chosen to ignore my request to take me to court.

 

Instead you have chosen to issue a statutory demand, which as you know is frowned upon by the OFT guidelines as a method of collecting debt without first trying the case in court.

 

I once again remind you of the contents of my previous correspondence of xxxx January 2012 in that at any future set aside hearing I will be applying for my costs which will be in the region of £ 250 - £ 300.00

 

I will be making the court aware of this and all other correspondence in this matter.

 

I await to hear back from you in the next 24 hours as to whether your client wishes to withdraw the statutory demand, but in the meantime confirm my intentions of applying for set aside on February xxxx with forms 6.4 and 6.5 duly competed.

 

Yours faithfully

 

Once again many thanks to 42Man for his help and guildance

[42man]

Excellent....!! Do keep us psoted if you hear anything else....and keep their letter of withdrawal safe.