Harrassed by Lowell - Debt not mine

[foggy123]

Thank You I am not feeling very positive though because of behavior of the Judge. I will not go down without a fight though and have decided not to give up at all whatever the outcome.

[foggy123]

I had a message from James yesterday and I will have to reply on this thread because I cant now find the message. First of all thank you for your message. There has been so much wrong doing by Lowell Portfolio in the chasing of this alleged debt. They have sent Bailiffs to myself and my neighbors, sent all kinds of threatening letters,told the court on their Statement of Truth that I have never replied to their letters, which of course I have, after finding out my rights and then putting it in writing. I requested any documents relating to this debt and did not receive them but they still continued to harass myself and my family. Believe me when you receive a letter saying you are to be made Bankrupt it is devastating ( I could not stop shaking ) whatever the circumstances. I intend to let Central Government know what these Bully's are doing and hope they will review this making people Bankrupt as a form of debt collecting.

[Guest Lowell CRT]

Thanks Foggy123 - I have seen your further comments.

 

If there is anything else please let me know.

 

 

James.

[42man]

If the debt categorically isn't yours then you should be fine, but ignorance of the law is no defence, and this may be why the judge is aggrieved that you haven't done the 'proper' things to get this dismissed, if you intend to fight this you need to get your defence in to the court so that it is in the court files within 7 days of the hearing. You may find you also have to apply to set aside the statutory demand. A legal CCA request is the first step. But do you have everything from the court files ? Do you have a copy of the petition and statutory demand ?

[stevo7790]

42man,

 

Your post light a lit in my head, then caused me some concern.

 

Let's say you like the OP gets embroiled in a debt that isn't yours, its up to the claimant to prove.

 

Having no real legal knowledge or clue, you end up having to go to court, acting as lip you merely state I have no debt... claimant can't prove it either.

 

Judge adjourns the hearing asking claimant to provide evidence of debt against defendant.

 

2nd hearing defendant still hasn't followed proper court protocol, but the claimant still can't prove debt is defendants, what happens now?

 

Surely if the claimant can't prove the debt is the defendant, then the judge can't make the defendant bankrupt, regardless of what if any protocols the defendant missed or didnt adhere to? Surely there must be some sort of common sense in an instance like this?

Especially if there is a chance of being made bankrupt involved?

 

I'm thinking go see a solicitor? but what if it is someone who can't afford a solicitor, no claim to legal aid but also no understanding or court proceedings?

[42man]

Absolutely right, it should be an 'unless' order (i.e. unless the creditor provides and agreement, default notice, statements for the duration of the account etc etc.) by the judge requested by the defendant.....but the OP should be sitting in the court stating this isn't my debt, the petitioner's claims are denied.....fi no solicitor is available then i'd recommend either Citizen's Advice, The National Debtline may be able to assist, but could be tricky as it is at petition stage....The defendant should however make a reasonable attempt to get information (CCA request) or at an earlier stage a SAR. I would be showing the judge how upset and angry I was at having to deal with a debt that I was being made bankrupt for that wasn't mine, asking the judge for a bankruptcy restraining order, getting any defaults removed from my credit files and claiming my costs back too...!!

[foggy123]

You are right I did attend the hearing totally unprepared, stupid I know now. I think though I am going to be able to put up some sort of defense at the next hearing. I did not receive the paperwork from Lowell until the 22nd December and the hearing was on the 6th of January and I thought they are in the wrong and I do not owe any money. What a rude awakening I had. I am a strong person and I will be able to speak up for myself. I did put in a counter claim for harassment on the form I had to fill in for Court but that was not mentioned at the hearing. I realize the judge was annoyed at my lack of Court knowledge but how would I have any. I will be much better prepared ,thanks to your advise ,at the next hearing.

The Compliance Manager did not respond to my Formal Complaint.

[42man]

You need to look at some of the other defences here...but your key point here is that

 

The defendant denies any debt to the claimant.

 

The defedant has not provided any agreement (despite the legal requirement made under a Consumer Credit Agreement Request), nor statements for the duration of the agreement, no default notice in the prescribed form etc etc...there are some useful pieces here too - http://www.consumeractiongroup.co.uk/forum/showthread.php?309388-capquest-statutory-demand

 

I really think you will need to apply to set asdie the stat demand at the same time as submitting your defence to the petition too.....and I suggest you show the judge (if you can) that you are not bankrupt....

[foggy123]

Yes I can show the Judge I am not Bankrupt. I submitted evidence of this with the form I had to complete. My finances are in good order. I have no Credit Cards or Overdrafts and no arrears on household bills.

[foggy123]

I have a copy of the petition but not the Statutory Demand. How do I get a legal CCA. The Court are telling me there is nothing other than I have received on the file.I have now got a date for the next hearing. I have time to get my defense in Court. Do I apply now to get the statutory demand set aside or along with my defence.

[42man]

Are you able to post up the petition here (minus the personal details, amounts, dates etc) ?

 

A copy of the statutory demand SHOULD be in the court file, I am intrigued to know what is on the petition......

[foggy123]

I am not able to upload on this computer sorry but on the petition is says I am truly indebted to them for £

It says the sum is payable immediately and the debtor appears to be unable to pay it.

On 5th May a statutory demand was served upon the debtor by personal service and to the best of their knowledge and belief the demand has has neither been complied with with nor set aside in accordance with the rules and no application to set aside is outstanding.

Thats it .

Something interesting in the paper today though, someone is being harassed by a debt collector for money they do not owe and they were asking if they could sue for harassment. Its a law question page but the answer was

[unclebulgaria67]

Are Lowells looking into this for you ?

 

Surely if the debt is definitely not your,s then by checking certain information against the creditors records, they will find out whether it is a case of mistaken identity.

 

If it is not your debt, why should you be put to any expense or hassle regarding this. It would be up to Lowells to withdraw the legal process and to pay you relevant compensation.

[BRIGADIER2JCS]

Agreed UncleB, this is going round in circles,

positive response and complaints to Lowell

are needed.

[42man]

Unfortunately ignorance of the law is not a defence....that is why you must fill out the opposition to the bankruptcy, and make sure it is in the court files at least 7 days before the hearing, you will also need to send it to the claimant too...

[foggy123]

I have complained to Lowells Compliance Manager with no response. I feel Lowells Litigation team, one of them in particular, want me in a Court. They do not respond to any thing I send them. I requested they withdraw the Legal Process again with no response. My only option is to fight them in Court.

[cerberusalert]

You are aware that you could be looking at some serious compensation from them when you win? Vexatious litigation, Harassment, Libel.

[42man]

I should now stop complaining for the time being....Lowell know this is in the courts and they will not do anything, they will let the judge decide, the OFT will take action.....the thing to do now is to get the bankruptcy dismissed and to claim your costs and compenasation for the obvious upset this has caused you and your family.

[42man]

You need form 6.19 and an accompanying affadavit / witness statement, you can find this form here - http://www.bis.gov.uk/insolvency/about-us/forms/england-and-wales

[42man]

What is the date of the next hearing.....

[42man]

Your form 6.19 should say.

 

The defendant has never had any account with Capital One or Capital Bank or Lowells or its associated companies in any form. The defendant also denies being or acting in any capacity as a guarantor with any account associated with Capital One, Capital Bank or Loweels or its assocaited companies.

 

The defendant firmly believes that there has been a gross error in identity by the claimant.

 

The claimant has failed to provide any agreement, but as no agreement exists between the defendant or the creditor, the defendnat firmly believes that their action is unlawful, and fatally flawed.

 

The claimant has failed to provide any statements for the duration of the agreement

 

The claimant has failed to provide any default notice as prescribed by the Consumer Credit Act 1974

 

The claimant has failed to provide any termination notice as prescribed by the Consumer Credit Act 1974

 

The claimant has failed to provide any deeds of assingment with relation to the alleged debt

 

The claimant has failed to provide any notices of assignment with relation to the alleged debt

 

The defendant has made official complaints with Lowells, The Office Of Fair Trading and the Financial Ombudsman, these investigations are currently outstanding.

 

The defendant has requested all documentation that would commonly be associated with any debt, however to this date the claimant has provided nothing.

 

The defendant avers that there are no affadavits in the court files from the claimant. I refer to the authority:

 

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 rules provide in terms that the petition must be supported by an affidavit of service showing how the petition was served, and express reference is made to substituted service and the way in which that then is to be proved, which involves the affidavit of service having with it a sealed copy of the order.' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

Then r 6.15 says:

(1) Service of the petition should be proved by affidavit.

(2) The affidavit shall have exhibited to it -

(a) a sealed copy of the petition, and

(b) if substituted service has been ordered, a sealed copy of the order;

and it should be filed in court immediately after service.

 

 

The defendant has been harrassed by the claimant on numerous occasions, despite not being indebted to the claimant: I refer to the authority of Judge Chambers Harrison vs Link (Feb 2010)

 

"no excuse for conduct of which it must be supposed the sole purpose must have been to make the Claimant's life so difficult that he would come to heel. I cannot think that in a society that is otherwise so sensitive of a consumer's position this is conduct that should countenanced"

 

The defendant also believes that the claimant is using the court as a tool for debt collection. the claimant is well aware that the alleged debt is not theirs but has continued in pursuit of the destructive action of bankruptcy.

 

In light of the evidence and of common sense the defendant gracefully requests the petition dismissed and in light of the upset and distress this has caused, the claimant respectfully requests that the court give consideration to awarding these on an 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).

Edited January 20, 2012 by 42man

[42man]

You may also like to prepare a financial statement to show the judge that you aren't bankrupt.....you may need to get this signed by a solicitor (as will your affadavit) this usually costs £5 at a local solicitors,

[42man]

As for your costs you should title a sheet of paper LITIGANT IN PERSON COSTS

 

Then add

 

10 hours of research into Insolvency Law @ £18 per hour - £180

10 hours of research into consumer Law @ £18 per hour - £180

2 days off work to attend court @ £80 per day £160

Postage

Mileage to court @ 40p per mile

 

TOTAL

 

This needs attaching with copies of the 6.19 and your affadavit and sent to the opposing side and the court, no later than 7 days before the hearing

[foggy123]

Just received in the post this morning a letter from Fredricksons Debt Collectors confirming that they have made enquirys and have confirmed that this person we have never heard of lives at this address. I contacted them but had a feeling they did not believe me. Bet its not the last we hear off them.It looks like identity theft. I am keeping the letter to show in Court just as proof that this can happen unlike the Judge saying they do not chase you for some other persons debt.

[unclebulgaria67]

If Fred have provided the original creditors details and reference number, it might be worth writing to the original creditors head office compliance department, asking them to look into this. If there has been any case of fraud, ask that they report to the Police in the normal way.

 

http://www.identitytheft.org.uk/Reporting-the-problem.asp

 

In regard to the Lowell issue, have you contacted the original creditor for details on the account that they think is yours ?