hamptons/lowell portfolio 1 SD for barclaycard debt - **WITHDRAWN**

[mest116]

I would like some advice please, i have recieved a statutory demand from hamptons legal/lowell portfolio 1. this is how the story goes, a guy came round to my house and my friend was doin some work in my garden this guy asked for me but my m8 said i wasnt in, he said he would call back, any way he did call back but no one was in and he posted a letter through the door,

 

it said that he wanted to serve the statutory demand on me but couldnt and said he would return on 13/2/12 at 1.50pm, anyway i wasnt in, but when i got home my outside garden gate was jammed and there was this letter sellotaped to it, i also share this gate with the downstairs neighbour, so he obviously couldnt get to my front door, anyway it was the statutory demand, i had been told to send lowells a letter asking for the original credit agreement and send a 1 pound postal order which i did do on the 10/2/12 by registered delivery,

 

as yet i have not had anything back from them, now the debts are as follows, barclaycard 2944.81 credit agreement date 21/03/2007.. 1st credit finance ltd 210.00 agreement date 08/08/2005 and telefonica o2 uk ltd 673.01 dont know the date of this agreement.. total debt 3827.82 ... now back in feb 2011 i recieved one of these demands but i came to an agreement with lowells to pay 70 per month wich i did untill i lost my job in nov 2011 so im not willfully negleting it im just got no work at moment,

 

what ive been told and heard is that this debt may be illegal or they have bought it off the original creditors, a lot of the barclaycard was interest and at the time i wrote to them asking them to stop the interest as i was having financial difficultys but i never recieved a reply.. anyway here i am today trying to get help , i dont understant this setting aside thing.. any help would be appreciated..thanks

Edited March 1, 2012 by Conniff

[honeybee13]

Hello and welcome to CAG.

 

I'm moving your thread to the debt collection forum and hope the guys will be able to help you.

 

My best, HB

[mest116]

cheers ..

[42man]

You'll find a number of recent threads about this dreadful company on here.....I would suggest you get the demand set aside as soon as possible have a read of these

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?331758-Help-with-Statutory-Demand-from-Lowell-Investigations-Hampton-Legal-Please-Help!&highlight=lowells

[42man]

You also need to be a little careful at what you write on here as Lowells do read these forums.....I would have suggested ignoring the statutory demand as sellotaping it to a gate with joint access would have been enough to state that you hadn't seen the demand, and it would have been interesting to read the affadavit on how the process server (actually served it)....

 

You'll need forms 6.4 (set aside) and (6.5) witness statement first and you have to set it aside within 18 days of when you received it (we can mention the sellotape on the shared access gate in the witness statement)....if you need help in what to write then please do ask.

[42man]

Are you able to scan up the demand ? (minus your personal details)...I like the way they say there is an agreement with 1st Credit !!! This will be something they will never be able to provide....as for the Barclaycard then it is not uncommon for debts to be made up entirely of charges / potentially missold PPI... I'm afraid that Lowells are pretty despicable and are out to destroy people....You really should fight this and claim your costs....

[mest116]

thank you for your advice, i really do need guidance on each step of this, like i have said i already sent 3 letters 1 for each account with 3 1 pound postal orders 0m the 10th but not have had a reply as yet, im gatherering my next step is to have it set aside , need to know the process and what to say or write, thank you look forward to your reply..

[42man]

Are you able to scan up the demand ? (minus personal details)

[mest116]

unfortunately not, i will see if i can go to my cousins today tho as i think he has a scanner, ,

 

right ,

my cousin hasnt got a scanner,

so i will write what it says on the sd,

 

 

1st page ,

17/01/11

lowell ref xxxxxxx&xxxxxxxx&xxxxxxxx

original client ref barclays bank plc t/a Barclaycard

& 1st credit(finance)limited@telefonica 02 uk ltd current balance £2944.81&£210.00&£673.01.

 

 

dear mr xxxxxx, you have failed to clear your outstanding balance despite previous written/verbal requests and therefore we enclose by way of service upon you a statutory demand for payment of the debt .

 

 

this is an important document ,

the contents of which should be read very carefully and seek advice if necessary.

 

 

should you fail to respond to the demand we will be presenting bankruptcy petition against you.

 

 

THEN IT GOEs ON TO SAY WHAT WOULD HAPPEN IF I WERE DECLaRED BANKRUPT

 

 

..... page 2 or 6.1 as on form,

stautorty demand under section 268(1)(a)of insolvency act 1986.

 

 

debt for liquidated sum payable immediately.

 

 

THEN IN A BOX AT TOP OF LETTER IT STATES ,

THAT I HAVE 18 DAYS TO SET ASIDE FRON DATE OF SEVICE OR 21 DAYS THAT I COULD BE MADE BANKRUPT AND MY BELONGINGS TAKEN FROM ME,.

 

 

. THEN IN THE MIDDLE OF THIS PAGE IT STATES,

to mr xxxxxxx xxxxxx adress xxxxxxxx

this demand is served by lowell portfolio 1 ltd adress eterprise house, 1 apex view, leeds, ls11 9bh,

 

 

the creditor claims that you owe the sum of 3827.82

full particulars of which are set out on page 2,

and that it is payable immediately and

,to extent of the sum demanded,

is unsecured.

 

 

creditor demands that you pay the above debt or secure or copound for it to the creditors satisfaction ,

 

 

THENS THERE IS A BIT ABOUT THE CREDITOR BEING A MINISTER OF THE CROWN OR GOV DEPT ETC BUT THIS HAS A LINE THROUGHT IT.

.. signiture of individual greame danby .

name greame robert danby ,

date 30 jan, 2012

postion wit or relationship to creditor:

litigation manager for the claimant *

 

 

1 am orthorised to make this demand on the creditors behalf address enterprise house 1 apex view leeds, ls 11 9h tel 01133086006 ref xxxxxxxxxxxxxxxxxxxxxxxx

person making this demand must complete the whole of pages 1,2 ans parts a,b ansd c (as applicable)

on page 3,

 

 

NEXT PAGE, particulars of debt, these particulars must include a when the debt was incurred, b the consideration for the debt(or there is no consideration the way in which it arose) and c the amount due as at the date of this demand). THEN IN A BOX ,the claim of the creditor is for payment of £2944 and £210...00 being the balances of monies due against credit accounts made between the debtor and barclays bank plc/ta barclaycard and 1stst credit (finance) limited in respect of a credit card and a loan, under account numbers xxxxxxxxxxx and xxxxxxxxxx, such agreements being regulated under the consumer credit act 1974. the rights and benefits of the said accounts were duly assigned from barclays bank plc ta barclacard ans 1st credit (finance)limited to the creditor by way of a debt sale agreement dated xx/xx/10 and xx/xx/08 and a notice of assignment having been served upon the debtor by the creditor on xx/xx/10 and xx/xx/08 in accordance with the provisions of section 136 of the law property act 1925.. the balances of the debts at the date of this demand remain outstanding and due for payment by the debtor in the amount of £2944.81 and £210.00 despite previous written and verbal requests for payment being made by the creditor to the debtor.

 

The claim of the creditor is for payment of £673.01 being the balance of monies due against a mobile telecommunications agreement made between the debtor and telefonica 02 uk limited 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 xxxxx

 

The rights and benefits of the said account were duly assigned from the original creditor to the creditor by way of a debt sale agreement dated xx/xx/09 and notice of assignment having been served upon the debtor by the creditor on xx/xx/10 in accordance with the provisions of section 136 of the law property act 1925.

 

The balance of the debt at the date of this demand remains outstanding and due for payment by the debtor in the amount of £673.01 despite previous written and verbal requests for payment being made by the creditor to the debtor

 

Next page:

Part A Appropriate court for setting aside demand

 

Rule 6.4(2) of the insolvency rules 1986 states that the appropriate court is the court to which you would have to present your own bankruptcy petition in accordance with rule 6.40(1) and 6.40(2). In accordance with those rules on present information the appropriate court is sunderland county court 44 john street sunderland tyne and wear england sr1 1rb

 

Any application by you to set aside this demand should be made to that court.

 

Part B

The individual or individuals to whom any communication regarding this demand may be addressed is/ are:

Name: Graeme Danby

Address: Enterprise house 1 apex view leeds ls11 9bh

Telephone 01133086009

Ref xxxxxx

 

Part C

For completion if the creditor is entitled to the debt by way of assignment

 

Original creditor : Barclays Bank plc t/a Dates: xx/xx/10

Barclaycard

1st Credit (finance) ltd xx/xx/08

Telephonica o2 uk ltd xx/xx/09

 

Assignees Lowell portfolio l ltd xx/xx/10

Lowell portfolio l ltd xx/xx/08

Lowell portfolio l ltd xx/xx/09

 

How to comply with a statutory demand or have it set aside (act within 18 days)

 

If you wish to avoid bankruptcy petition being against you you must pay the debt shown on page 1, particulars of which are set out on page 2 of this notice, within the period of 21 days after its service upon you.Alternatively you can attempt to come to a settlement with the creditor. To do this you should:

 

1: inform the individual (or one of the individuals) named in part b above immediately that you are willing and able to offer security for the debt to the creditors satifaction or

 

2: inform the individual (or one of the individuals) named in part b immediately that you are willing and able to compound for the debt to creditors satisfaction.

 

If you dispute the demand in whole or in part you should:

 

1: contact the individual (or one of the individuals) named in part b immediately.

 

If you consider that you have grounds to have this demand set aside of if you do not quickly receive a satisfactory written reply from the individual named in part b whom you have contacted you should apply within 18 days from the date of service of this demand on you to the appropriate court shown in part a above to have the demand set aside.

 

Any application to set aside the demand (form 6.4 in schedule 4 to the insolvency rules 1986) should be made within 18 days from the date of service upon you and be supported by an affidavit (form 6.5 in schedule 4 to those rules) stating the grounds on which the demand should be set aside. The forms may be obtained from the appropriate court when you attend to make the application..........

[stu007]

Hi

 

This may be of interest to you its from OFT Public Register:

[mest116]

im not sure i understand ,

[stu007]

Hi mest116

 

Soz for the confusion the PDF is from Office of Fair Trading - Public Register and is Lowells Consumer Credit Act Licence Details.

 

If you look at the Trading Names one of the names Lowells use is Hamptons.

[mest116]

can i get this set aside 42man, and how

[42man]

OK....as said above you'll need forms 6.4 (set aside) and 6.5 (witness statement)....you have 18 days from when you received the demand to submit these to the closest court to you that handle bankruptcies. (they should have named your closest court on the demand). I would also strongly recommend you send off for a copy of the agreements for the Barclaycard debt. - this is called a CCA request. You need to send this with a £1 postal order, send it recorded delivery (make sure you keep a copy of the letter) Your CCA request is a legal requirement for them to provide a copy of your agreement (within 14 days) - http://www.consumeractiongroup.co.uk/forum/content.php?414-CCA-request-letter

 

You can't ask for a copy of the agreement for the mobile phone bill - but maybe a SAR might be a good idea at this stage as you have to show that you are making a reasonable attempt to get information. The SAR costs £10 (again send a postal order and send recorded) They have to respond within 40 calendar days.....

 

Also may I ask when was the last time you made payments towards these debts ? Is it 6 years ? or is there a 6 year gap where you have not made any payments towards the debts ?

 

You can find forms 6.4 and 6.5 here http://www.bis.gov.uk/insolvency/About-us/forms/england-and-wales

 

Use this link to fill out 6.4 - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489#post1749288

 

As for the 6.5 then I would be using

 

The defendant disputes the alleged debts substantially.

 

The defendant avers that the debt is barred by the statute of limitations Act 1980 (only put this if you feel the debt/debts are statute barred)

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act.

 

The claimant has failed to provide any deeds of assignment

 

The claimant has failed to provide a default notice (which contains the prescribed terms) as required under the Consumer Credit Act

 

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

 

The claimant has failed to provide any details of any potentially missold insurance that may have been added to the agreement.

 

 

 

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;

 

 

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.

 

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

 

1. 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

 

 

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 provided
  

 

• 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 Particulars of Claim, 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

 

 

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 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.

 

1 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.

 

2 - 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

 

3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the bankruptcy petition, and therefore any assignment has not been perfected in law.

 

 

In light of the above statements I gracefully request that

 

The judge dismisses the demand.

 

The Judge orders the claimant to pay my full costs + compensation in light of the distress and damage to my family and reputation in support of this I quote –

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

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 collectionwhere 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). Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

[mest116]

thank you, 42 man, i have already sent 3 letters off to lowells , 1 for each debt, registerd post with 1 pound postal orders for each debt, asking for the original credit agreements etc, (i got the letter off here and copied it) they were sent 10th of feb, only thing i have received off them is a statement of your account which gives lowell ref number credit agreement date credit agreement ref number and original creditor( lowell portfolio 1 ltd,) opening balance, payments recieved and closing balance, i last made a payment to lowells in october 11 for these debts,

[42man]

OK has there benn any gap of at least 6 years where you haven't made any payment at all ? (despite payment in Oct 11) ?

[mest116]

im not sure , on 1 of the debts there is , possibly the telephone 1 as well but not sure about the credit card

[42man]

You really need to find out.....if there is a gap of at least 6 years anywhere in the life of the debt then it will be statute barred. (even if you have made a payment recently) What you MUST also do is report them to the Office Of Fair Trading

[mest116]

ok, i kno for definate that the smaller debt is, but to be on the safe side im gunna say the other two arnt until i find out for definate when the last payments were to these two.

[42man]

I love the way Lowells roll up statute barred debts with debts that aren't / questionable....you must report them to the OFT....in which case I would state that the claimant has not provided any evidence that the alledged debts are NOT statute barred...get them to provide solid proof for all..(and not just one of THEIR statements, get them to give you bank account details and exactly when the payments were made)....

 

The OFT make it quite clear in their debt collection guidance

 

c. creditors failing to identify to prospective debt purchasers debts known to be statute barred

 

stating or implying that debtors may be the subject of court action for the sum of the statute barred debt when it is known, or reasonably ought to be known, that the relevant limitation period has expired.

[mest116]

ive just ordered my credit report online off experian, im assuming everything will show up on there, it takes 24 hours to get the email, then i can view it within 4 days.. wiil it show lowells buying the debt off these companies ?, going to fill them forms in now (6.4 and 6.5) , should i also mention abt the sd being taped to a 6ft gate that has shared access to my property,

[42man]

Yes....I think that might be a good idea....

 

The defendant avers that the demand was found by (myself/neighbour) stuck via sellotape to a gate that has shared access to the property.

 

The defendant believes that no attempt has been made to serve the documents personally. I refer to:

 

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

 

Then r 6.15 says:

 

'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.

[mest116]

received credit file,

nothing on there about barclays credit card ??

 

 

nothing on there about the mobile phone contract ??

but there is a lowell prtfolio 1 ltd credit card/store card started x/x/07 default £xxx defaulted x/x/08 balance xxx monthly payment 0 0ver 0 months status history 8 file updated x/x/11 ...

 

 

another 1 is lowell portfolio 1 started x/x/07 default xxxx defaulted x/x/09 current balance xxxx monthly payment 0 over o months file updated x/x/11 ...

 

 

now i know the 1st one is the mobile phone contract

but its down as credit card or store card

and the second one is barclays which is down as credit or store card.

. i dont understand it ..

[42man]

In which case it sounds statute barred....

[mest116]

they havnt replied to my request for the orginal credit agreement either that i sent registered delivery.