Lowell portfolio - served me SD - HELP!!! *** WON + FULL COSTS ***

[khemist]

Hi all first may I commend you all on this site. I have found it so informative.

I will try and keep my post brief...

 

Since 2006 I went off the rails! split up with my wife etc... etc...

Since 2006 I have ignored all debts, credit cards etc, I am not proud of this however alcohol and drugs and n.f.a. do tend to have consequences.

 

Not to ponder on the negative, I have just got back with my wife who has been living at the address with my child. I own.

My wife has thrown all my debt letters away and payed her own debts and the mortgage.

 

My question is this, am I still liable to pay these debts?

can they make me bankrupt and take my house?

there is no info on the letter about the debt,

but the biggest credit card debt I had at the time was around £3500 approx.

 

I am currently not working [have not worked for 6 years],have never claimed benefits,

but as explained I do own my wife and child's home. would the debts be Statute barred? any debts are unsecured credit,

 

After just lifting my head above the parapet, this morning I bumped into a field agent of Lewis group on my doorstep,

who asked if I was this person, I said no, he looked confused [he looked like Phil from eastenders]

I proceeded on my way, when I returned there was a Private and confidential envelope marked urgent to my name.reads as follows.

 

Lewis investigation services

 

re: Lowell portfolio 1 ltd

 

I have been directed to serve you with a statutory demand issued under the insolvency act 1986

 

I have attended your address without meeting you...I will return on blah blah blah.

 

I have not written all of the letter because I have read it many times on this forum this morning!

 

letter ends A C metcalfe Process server

 

Should I panic? I know not to call the gentleman's number, due to what I have learnt this morning on this site.

 

What should I do?

 

My wife is now panicking severely and the last thing we need is this, as we only got back together before xmas!!!

 

Please help.

 

Thanks in advance.

[ims21]

Hi and welcome.

 

The guys will advise as soon as they are available.

 

Thread moved to correct forum

[khemist]

Thanks

 

I did wonder where to post but the welcome video suggested to post there.

 

Thanks again

[twofoot]

Sb is when you have not paid for 6 years or acknowledged the debt in writing for 6 years, 5 in Scotland. How far off do you think you are?

[dx100uk]

first port of call is find out exactly WHAT you do owe

 

getting your CRA file is by far the best ndicator of this

 

see my sig below.

do nothing more till we know that.

 

dx

 

 

dx

[khemist]

Early 2006 for sure!

 

Credit cards last used 2005 august - I have not spoken to any creditors since then - not verbal , written or otherwise.

Edited January 19, 2012 by khemist
adding more info

[khemist]

I tried that due to your threads..

However the agencies wont take debit cards, I will have to wait for my wife, and I don't want to frighten her even more.

[dx100uk]

really thats funny

has your debit card not got VISA on it then?

 

all of mine are on debit cards..

 

dx

[khemist]

Yep its a visa electron.

[dx100uk]

very strange

 

same as mine

 

dx

[khemist]

I am getting nervous now! just read on other posts I have received a statutory demand which is legal, it does not need to come from the court, did I read correct?

[dx100uk]

sri

you've said nowt about an SD before

did it come today?

 

dx

[khemist]

The same letter I posted about says I have been directed to serve you with a statutory demand...

 

letter head reads

 

lawrence house, riverside drive, cleckheaton,west yorkshire

 

I am scanning and editing the letter to post shortly.

 

I have just been told by wife the CRA did not accept card because there is no money on it, I will have to wait till the end of the month! The representative is coming back Thursday 24th, is there another way of getting my file?

Edited January 19, 2012 by khemist
more info

[dx100uk]

scan the required letters/agreements/sheets

as a picture[jpg] file

remove all pers info inc barcodes etc using paint program

but leave all figures and dates.

 

goto one of the many free online pdf converter websites

it would be better to upload a multipage pdf

than many single ones

or if you have PDF as an installed printer drive use that

or use word and save as pdf

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

then hit reply button

dx

[khemist]

Thanks

[dx100uk]

sri missed that bit

 

so you HAVE the SD or its just the threat of one being served?

 

they've squeezed this in late if it is.

 

not an issue if it is one though.

 

dx

[khemist]

Here is the letter posted by hand today.

lowell.pdf

[khemist]

I think its a threat of being served one.

[dx100uk]

I have just been told by wife the CRA did not accept card because there is no money on it, I will have to wait till the end of the month! The representative is coming back Thursday 24th, is there another way of getting my file?

 

 

having no money should not stop the card working

its only used for verification.

 

they take no money until 30day free trial is up

 

it WAS the free trial selected?

 

i'll move this thread to then legal form.

 

dx

[khemist]

Thats exactly what I thought!!!

 

I will try again now. based on you moving to legal thread I take it it is serious?

 

This gets more funnier by the minute [being sarcastic] I have tried various credit reference agencies, and all said problem with verification and my card, transaction not completed... I phoned the bank just now to be told 3 of the CRA have requested money and because there is only £4 available - transaction has failed and now I get charged... also equifax says no where that they are taking £2 it says its free until the end of 30 days!!!! very confused, and seem to be making the situation worse by trying to fix!!!!!!!!

 

I signed up for 30 days free trial from credit expert, experian, equifax.

Edited January 19, 2012 by khemist

[dx100uk]

best course of action is to get help ready

 

SD is not a big deal and 90% of the time

can easily be batted away

ESP by Lowlife!!

 

dx

[khemist]

Do you mean a lawyer?

[dx100uk]

no no

just these guys here

 

we'll help

 

you need to get that cra file thats for sure

 

and read up on a few threads too:

 

type in

set aside an SD

ih the search top right and read around

 

and also:

 

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

[khemist]

Thanks I will be reading all night, very interesting...

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/showthread.php?333848-Statutory-Demand-from-TBI-Financial-Services-help-needed-please-Almost-certainly-statute-barred&p=3680608#post3680608