3G and Lowell Court Cases

[rc14 1]

*Does Lowell ever go to court?

The simple answer to this is yes sometimes they do! But don’t expect a fair fight *

For the past two and a half years I have been striving for justice against the debt collection Agency Lowell Portfolio, also known as Red Collections, Hampton Legal, Buchanan & Wells and other trading styles. Throughout that time I have been greatly assisted by information posted on the Consumer Action Group site and also the site run by the credit expert Martin Lewis.

I am grateful to both of these excellent and informative sites and encourage users to contribute. On 9 March 2012 I finally managed to get Lowell into a court room largely due to pressure from myself and my MP. I would like to make CAG readers aware of my experiences and the basic procedural mistakes I made on the day, in the hope they achieve a fair outcome to their own disputes.

 

On the day of my hearing I was flattered that Lowell Portfolio was sufficiently concerned about little old me that they sent their main Legal Director Stephen Hunter as a witness and also employed the services of a slick, and charming female barrister. I on the other hand defended myself not being able to secure such capable or expensive representation.

The cost I had been informed would be in the region of £2,000.00. Although a judgement was made in favour of Lowell I still consider the outcome as a partial victory, because not only was the bulk of Lowell Portfolios claim was not proven I had done much to raise awareness about Lowell Portfolio practices. CAG readers can decide themselves if this was a worthwhile venture.

 

Like many my case concerns the sale of a disputed mobile phone account between Hutchinson 3G to Lowell Portfolio under an absolute assignment. Lowell Portfolio claimed they were now the rightful owners of an outstanding debt relating to that account under assignment law. The account was in fact legitimately disputed by me in 2006 with the original creditor 3G, and after 3G were unable to resolve the dispute to my satisfaction I cancelled the contract in writing. Many similar cases featured on the BBC Watchdog programme of January 2009.

 

The Judge accepted my evidence which showed the account was clearly disputed and this is why the bulk of Lowell’s claim was not accepted by the Courts. I felt so confident I would be vindicated by the courts that in addition to defending the claim I had also submitted a counter claim against Lowell for harassment and defamation.

 

The basis of my claim was I had asked Lowell to stop writing to me as early as March 2009 and take me to court if they felt they had a legal right to pursue this alleged debt. However, for 3 years they had continued to pester me threatening everything from bailiffs to repossession. I also asserted they had registered incorrect information with Credit Reference Agencies.

I argued that in continuing to pursue me and failing to investigate my dispute Lowell knowingly committed the civil wrong of harassment. The original creditor Hutchinson 3G was invited to take court action in January 2007 if they felt I was in breach of contract, but they declined. I produced a copy of my letter as evidence. My counterclaim failed as the barrister for Lowell pointed out defamation claims are dealt with in the High Court.

I was unable to prove harassment under Section 3 of the Protection of Harassment Act 1997 on the balance of probability (more than 50%). Lowell had claimed to be owed the sum of£367.31 of which £225.26 was an early termination fee, effectively the penalty for the cancellation my mobile phone agreement.

 

The remaining £98.05 was for the disputed bill at the point of cancelation in January 2007. Lowell claimed the debt was lawfully assigned under section 136(1) of the Property Act 1925. I argued that a disputed debt could not be lawfully assigned and cited OF regulations and the strict provisions of section 136 Property Act. I showed the Judge copies of several letters each with different dates, which Lowell said were copies of the assignment letter sent to me.

 

I also showed evidence that even copies of assignment letters allegedly issued on the same date, 26 January 2009 which were not identical. E-mail addresses and 3 logos had been removed and blocks of text had been repositioned on the different print runs. I asserted that I had only received these assignment letters retrospectively when I challenged Lowell to provide proof of service under Section 196 of the same act. That I had certainly not received the assignment letters on the dates Lowell say they sent them.

The Judge accepted Lowell s assurances that they had sent the letters, but she did not require any proof the letters were sent. Lowell stated section 196 applied only to mortgages. It is worth pointing out that mobile phone contracts are service agreements and are exempt from the Consumer Credits Act (CCA).

Therefore don’t waste time trying to get Lowell to send any proof of the debt such as a copy of n agreement or proof of acceptance, you will only be frustrated. Putting a SIM card in the phone is apparently considered acceptance of the agreement and once in it is pretty hard to end any agreement even when you believe that the original creditor is in breach, as I did.

All Lowell will ever give you are your old phone bills showing you have agreed a set of terms and conditions. Any old set of reconstituted terms and conditions would seem to apply. In my case the terms and conditions pre May 2006 applied. These terms were looked at by Ofcom when a Hutchinson 3G customer complained about unfairness. Ofcom found the terms prior to May 2006 were unfair under Unfair Terms and Contract Regulations for several reasons. See Ofcom decisionCW00888/01/06.

However, Lowell was keen to point out that Ofcom CW00888/01/06 had not been tested in court. I suggested to the Judge that Lowell and 3G had intentionally given me and the court copies of 2008terms and conditions as these were fairer because they had been amendedby3G in light of Ofcom ruling. I suggested to the Judge that 2008 terms and conditions were not relevant to my case as they did not represent my agreement with 3G. Lowell presented 2008 terms and conditions as evidence and the Judge accepted the later 2008 terms and conditions and ruled accordingly. Any 3G customers who signed agreements prior to May 2006should visit this decision.

For background of my dispute with Hutchinson 3G, I should explain that I had cancelled my contract with 3G in October 2006 after a Dispatches programme in October 2006 had highlighted Indian call centre staff had been selling card details to criminal gangs. The programme did not confirm which centres, but I was uncertain as to whether my card details held by 3G at Mumbai had been compromised. In changing my method of payment I made a late payment and3Gchanged my tariff on the basis of my breaching terms and conditions.

They claim I was on a promotional rate. I objected to the unilateral change and after months of complaining unsuccessfully I cancelled my contract in writing with 3G. Was any of this wrong? I heard nothing from 3G between January 2007 and March 2009 at which point I was contacted out of the blue by Red Collections a part of Lowell. I alsofound out by chance a default was registered on my Credit File with Experian without my knowledge. I went back to 3G Customer Services to query why my disputed account was sold and why I had not been contacted in the last two years.

3G offered me a reduced settlement figure, which I declined. I complained to many organisations including; CAB, OFT, Consumer Direct, Trading Standards, my MP, OFCOM, ICO, Experian, The FOS, LGO, CSA and the PHSO without much success. Most said they either had no jurisdiction over Lowell or that they did not deal with individual complaints. A major problem was that none of the bodies had authority over both 3G and Lowell. This meant both 3G and Lowell could provide me with different information and neither was obliged to reconcile or explain the inconsistencies. Any complaints I made to the ICO were dissected and sent to different departments dealing with the different aspects of the complaints.

I maintain that I have never received any letters of default from wither3 or Lowell nor any assignment letters and neither company are able to provide copies. I made a complaint to the Ombudsman OTELO in 2009 about 3 selling my account to Lowell in contravention of the OFT Guidelines (sale of disputed debts), but regrettably the Ombudsman found in favour of 3. This was because 3produced two letters which they said they sent me to try and resolve my dispute. I assured OTELO that I had never received these. OTELO believed 3G. However, when I submitted a Section 7 Data Protection Act request to 3G they were unable to produce the two letters or indeed any of the information they sent to OTELO.

The ICO later upheld my complaint against 3G confirming it was unlikely3G had complied with the DPA. I submitted three separate DPA section 7 requests to 3G before I received anything at all. I have a letter from Lowell confirming they would be unable to comply with DPA because they did not hold any information about the account prior to purchase. A contact history from 3Gshowed evidence of my ongoing dispute even to the point 3G sold my account. Despite this new evidence and CW00888/01/06, the Chief Ombudsman declined to review my case.

I asked OTELO for copies of the evidence 3G gave them and OTELO could not provide it as they only retain documents for a year. Therefore even in spite of neither 3G nor Lowell having any account information about this case proceeded to court and judgement was made in favour of them. I did establish in Court as fact that Lowell purchased 40,000 accounts from 3G. The legal Director provided a two page document for the eyes of the Judge showing the price paid for this portfolio acquisition, which he said he had supervised. I was told that this document contained sensitive information not for public consumption and for that reason I was not allowed to have sight of it because my account details could not be isolated. Lowell had no information about any of the accounts it had purchased. So if anyone out there thinks a print out of the 40,000 account transaction is not sufficiently persuasive to be enforceable in court, please think again.

Lowell’s Legal Director confirmed at the court hearing that he had no understanding of my dispute despite Lowell claiming to all and sundry that they had investigated it. None of the evidence presented showed contact between 3G and Lowell and 3G had no information that Lowell had contacted them either.

On the day the Judge accepted the evidence I provided which included 3Gsown contact log, clearly showing the account was still disputed with 3G at the point of sale. For this reason Lowell’s claim for the £225.26 for contractual penalty was dismissed. This was the bulk of their claim. The Judge accepted my statutory right to cancel my agreement without financial penalty under the Unfair Terms in Contact Regulations 1999. I also had a letter from OFCOM confirming the same legal position, which the Judge accepted. However, the Judge then accepted the Lowell claim for the outstanding air time and line rental of £98.05 on the basis that the assignment was permitted in

The Judge entered a decision against me for this amount plus interest of 8% and claimant court and Lowell travel costs. The total judgement sum was £267.00. My own losses were court fees of £145.00 in respect of my counterclaim. Lowell; s original claim was for £367.31. I had a number of issues with this decision.

 

Firstly it renders OFT guidelines on Debt Collection ineffectual in a court of law. If it is accepted that a disputed account was sold, then I felt it must follow that the account is ineligible for assignment, its sale must contravene the industry guidelines and assignment was also unlawful. The Judge disagreed and I have raised this with the OFT. As the assignment was deemed lawful Lowell had legitimate reason to pursue me and therefore my claim for harassment could not succeed. Secondly following a complaint about unfairness OFCOM reviewed the terms and conditions of 2006 under Ofcom CW00888/01/06.

However, the judge still measured her decision against those terms and conditions for two years later which had been amended and were different to those I had allegedly agreed to. This renders the Ofcom decision pointless. I had received from Lowell many copies of terms and conditions for accounts entered into after 2008. I had made Lowell aware of the OFCOM decision and that the 2008 version was amended. All subsequent terms and conditions including the version to the courts had no version dates. CAG readers can determine why this might be.

Thirdly I maintained that assignment was not valid because assignment letters were not issued until I had enquired why I had not received them. When I did enquire I was given different issue dates and had been sent copies of two different assignment letters including one for 26 January2009 and another for 27 January 2009.

I questioned why parts of one of the assignment letters had been amended on the courts versions after I had queried discrepancies in the assignment letters with Lowell and asked for an explanation as to why I might have been sent different assignment letters from the same person on two consecutive days. The Judge dismissed my argument that the letters had not been sent and Lowell was not required to prove service. Lowell agreed under cross examination that they sent both parts of the assignment letter, the one from the original creditor 3G and the one introducing Lowell. Section 136(1) of the 1925 Property Act refers to the first letter being sent by the hand of the assignor.

I was unsuccessful in convincing the Judge that this strict condition was not met because 3 could not confer their responsibility to issue the assignment letter to Lowell. The Judge confirmed the assignment was valid. I was also concerned to see emails from the Consumer Service Association to Lowell confirming that the CSA were aware that Lowell issue assignment letters on behalf of 3G and querying with Lowell whether it should be made public knowledge. Presumably they also felt that this process may not meet the strict conditions of section 136(1) of the property act. I made a number of basic errors, which helped Lowell succeed with what I perceive to be a very week case.

This enabled Lowell with only a two page print out showing 40,000accounts, two disputed and very dubious assignment letters neither of which 3G could have sent and a set of terms and conditions from agreements two years after the Ofcom revisions was sufficient to get a judgement against me. I saw no agreement, no default letters and no evidence of legal ownership.

Firstly I underestimated the complexity of the small claims court system. I was unable even after completing an application N244 to get the basic information from Lowell that I needed for a more robust defence. It just cost me an unnecessary £45.00 fee. The N244 application was not processed by the courts prior to the hearing and therefore even on the day of the hearing I had not been able to access my information held by Lowell and 3G. I had struggled for years even with the ICO being involved to get 3G or Lowell to comply with the DPA Section 7 requests. As a result of my own honesty and transparency the Legal Director was very comfortable and well prepared under cross examination because he was already aware of every previously unanswered question I wanted to put to him. In retrospect I would not have helped Lowell prepare so well.

Throughout the dispute process I had made Lowell aware of every discrepancy in their case and provided them with all of the evidence.

Conversely I felt that Lowell and 3G continually obstructed my requests under DPA and CPR. The Information Commissioners Office confirmed in a letter to me that it was unlikely that 3G had complied with the Data Protection Act. Explanations by Lowell to various regulatory bodies were inconsistent and Lowell claimed not to have any information about the account prior to the sale. I had even served the N244application via the courts requesting the courts compel Lowell to comply with Civil Procedural Rules and copied the courts into the many reminders I sent to Lowell. Even on the day of the hearing I had still not received the information and asked the Judge to dismiss the case.

The Judge did not have an issue with me not having the information I had requested from Lowell or with their failure to comply. Lowell just ignored me from November 2011 to March 2012 and then smugly stated in court that CPR section 31:14 was not applicable in small claims.

Secondly I underestimated the tactical supremacy of Lowell. They did everything last minute and I was fooled into believing they would not attend. They appeared incompetent in dealing with every enquiry I made.

On the morning of the hearing the courts advised that Lowell had not paid their hearing fees and their case had been removed from listing. Hours before the hearing Lowell posted 300 pages of evidence through my front door in respect of my counterclaim. On the day they simply turned up paid the fee, gave me more papers minutes before the hearing and had their claim heard. This left me feeling off balance and unprepared. I have made an official complaint about the courts administration and unequal treatment which is ongoing.

Thirdly in retrospect I would not have counterclaimed at the same time as defending Lowell’s claim. I feel my counterclaim complicated matters and I would have had better prospects had I defended the action first then counterclaimed once a judgement had been made. If unsuccessful then the costs of the counterclaim would have been avoided. This error of judgement cost me an additional £150.00. Also Lowell would probably not have employed a barrister to defend such a small claim, had there not been a counterclaim.

In similar circumstances I would have kept them in the dark regarding my intention to counterclaim and let them pay all the fees. Poor preparation was also my downfall:

I submitted too much information in my case file to Blackpool county court. The Judge confessed to not having had time to read all of the information I had prepared. Proportionality was the phrase she used. Five minutes prior tote hearing Lowell barrister passed me a skeleton argument which she had prepared for the Judge. I did not have time to reconstruct and articulate my defence at such a late stage in proceedings. I was not myself asked for or given the opportunity to construct a skeleton defence or argument for my counterclaim. Preparation was the key and I let years of frustration pollute and distort my argument. CAG users have suggested that West Yorkshire Trading Standards are monitoring Lowell.

On the evening of the hearing I was given sight of emails from West Yorkshire Trading Standards to Lowell. All I will say is that had I seen these earlier I would not have bothered writing to WYTS in the first place. I also have an email from the Consumer Services Association which questioned Lowell as to whether it was OK to let the general public know that Lowell completed and issued the assignment letters on behalf of the original creditors. Again I would not have had any confidence in the CSA had I seen the email exchanges earlier.

I was also disappointed that the communications Ombudsman was also not willing to consider new evidence that their original decision was wrong, which made it difficult for anyone to take me seriously. Be careful who you complain to some organisations are not as objective and impartial as you might think and the more complaints you make the more desperate you appear. Check the legislation carefully and research case law. I found on the day that CPR31.14 and section 196 of the property act did not apply and defamation is out of jurisdiction. Lowell ignored my registered letter and multiple reminders and dropped this bombshell at the hearing.

The courts are not interested in courts cases Lowell have lost or testaments of other people’s grievances. I found that information about Lowell complaints is better protected than that of the consumer.

The courts will not correct any misunderstandings or ignorance. Section 196 (4) regarding proof of service applies only to mortgages. Again I found out on the day of the hearing, when I argued that the burden of proof of service of disputed assignment letters was with Lowell. Decide how far you are prepared to go with your principles, but remember that every single person who has the courage to stand up to Lowell erodes their profits and forces the regulatory bodies to take notice. If I had decided that I was not going to court I would have ignored Lowell completely as I have no confidence in their dispute resolution process. I saw no evidence at anytime in the last 3 years that demonstrate Lowell had the capability to investigate my dispute with 3G.

Not one phone record or one email. Even in court Lowell knew nothing about me or the nature of my dispute with 3G. The damage to my credit file was already done without my knowledge and there was nothing I could have done to remove the erroneous entry. I tried writing to Experian and the ICO, but both accepted Lowell assurances without any supporting evidence that the CRA entry was correct.

Did I do the right thing? Most definitely yes! I have been ordered to pay Lowell’s costs and I have lost my own court fees, but I am at least happy that Lowell did not profit from purchasing my legitimately disputed account. If I was challenged for my wallet by a street mugger I would not offer a fiver for him to go away, but I might try and educate him in the error of his ways.

I work hard for my money and feel Lowell should work hard for theirs. It has cost me marginally more to defend the disputed claim than to pay them in the first instance, but Lowell had to pay for a top barrister. The more people that have the courage to stand up to Lowell the less profitable these opportunistic enterprises would be. I don’t feel justice was done on this occasion, but at least I feel that my principles are intact.

Financially it has cost be little more to dispute and probably less than Lowell demanded had I not countered claimed. Lowell has more financial clout that individuals and will inevitably have more success in courts due to their vast experience at playing the system. However, the more people that complain to the OFT the more awareness will be raised. Through the power of the collective consumers will eventually achieve the right and fair outcome and safer and stronger regulation through the OFT.

Good luck!!

Edited March 24, 2012 by citizenB

[citizenB 10,182]

Reformatted original post for easier reading.

 

This is a disgraceful indictment of the whole process of obtaining justice against the likes of Lowells. I would hope that others will look in and perhaps help dissect this whole case just to see what lessons can be learned.

[unclebulgaria67 29,105]

Well I think it was worth rc14 taking the time to post this, as I am sure it will be useful to others.

 

What I take from this. If you have a disputed debt which has been assigned to a DCA, don't deal with the DCA. Deal with the original creditor and make a complaint under the Unfair Term In Contract Regulations 1999 or any other laws that apply.

 

The large DCA's must deal with thousands of accounts on a daily basis. The more you communicate with them, the more the chance of them taking enforcement action. They will do it as a point of principle to prove you wrong. I am sure that many of the people that never communicate with them, never see any court claims being processed.If a DCA considers it unlikely that they will get their money back, they won't bother.

[rc14 1]

Hi Uncle Bulgaria

Agree entirely waste of time entertaining Lowell they have not got the competence to deal with queries. Even at the point they entered the court room they could not settle on a date they purchased my account, the date I allegedly defaulted or the date my virtual letter of assignment was sent.

I did try and deal with the original creditor but that was 3 mobile who consistently top the OFCOM complaint league. All 3G did was provide OTELO with copies of two letters which they claimed to have sent me in resolution of my dispute. I never saw the letters before I complained to the Ombudsman.3G told OTELO I had not replied and they believed 3G. I went back with a DPA request, well three in fact, but the two letters could not be found.

Lowell always claimed 3 had all the account info but 3G claimed Lowell had it.

In retrospect I should have asked a solicitor to make the request. I wrote to the Chief Ombudsman with new evidence that the decision was wrong showing them 3G s contact history log (the only thing I got from the DPA request,) but they would not review it. The OTELO decision although erroneous influenced ICO Experian and Trading Standards who piggybacked on that decision.

not a lot I could have done differently.

[Eduin 20]

There seem to be two important issues you didnt take into account about your case.

 

Firstly the OFT guidelines are GUIDELINES they are not the law. The Court is only concerned with the law, they can be influenced by statuatory bodies guidelines but they don't hold any legal standing.

 

Secondly you've found out a core problem people use to avoid debts. "I didnt get the letter". The courts only require evidence of SENDING, not receipt as it is assumed that letters are received. Given your argument was that many letters were not received (seems every letter the other side claims you claim never arrived) which in a judges eyes will quickly flag you up as unreliable as a witness - that alone will destroy your case.

 

The most surprising part of the judgement is that the judge decided the early termination charge was a financial penalty and unenforceable, did Lowell's barrister not argue that it was in fact what it is - recovery of the "phone subsidy"?

[rc14 1]

Hi Eduin

After trying for two and a half years to educate Lowell on their legal and moral responsibilities I think that its a bit to debate semantics. However, I will indulge you with a reply, but only one. I will leave CAG readers to determine the wheat from the chaff.

 

The justice system is based on fairness and therefore is somewhat obligated to take account of statutory bodies guidelines on fairness. OFT stands for Office of Fair Trading and their guidelines set out which debts it is fair to recover. The Unfair Terms in Contract Regulations set out what is fair in a contract. Lowell cant pick and chose which bits they like and which they dont. In the particulars of their claim and in letters to Trading Standards and the CSA Lowell stated that they abide by the industry guidelines including the OFT Guidelines of fair debt collection, clearly they did not as the Judge in this case confirmed the account was clearly disputed at the point of sale.

 

What is your take then. Should a consumer not be entitled to cancell a contract under any circumstances? In this case 3G had changed my terms unilaterally and I did not agree to the changes. I gave them chance to resolve the issued, but they did not have the capability. I cancelled my contract in writing due to their breach and invited them to take me to court. 3G declined, so why should they be allowed to sell a disputed debt?

 

 

With regards to letters not being received I assume you are referring to section 7 of ?he Interpretation Act 1978. This roughly states that if a letter is sent by post with standard postage then unless there is evidence to the contrary then service is deemed to be effected. I would suggest that when the DCA can not settle on what date they sent an assignment letter and when they produce several different versions of that letter then that is suficient to show me that the letters were not genuine copies. In fact Lowell did not even hold the address they claimed to have sent the letters to at the time they claimed to have sent them. I checked with my local authority on the ellectoral information. Even copies of the assignment letters sent to the courts were amended to correct dicrepancies which I pointed out to Lowell casting doubt on the authenticilty of the letters.

 

 

If you read my post you will see that I had a copy of 3G,s contact history so what was sent and what was not was clearly documented. The letters I claimed not to have received (two not every other) where not shown on my log. When asked to send copies of those letters for a Data Protection Request, 3G could not reproduce them. How could they, when they never existed? Conversly my contact history showed all my letters to 3G attempting to resolve the contractual dispute. Those could not be produced either because they proved my ongoing dispute. Go figure.

 

The point you missed was that customers saying that they did not receive letters is also Lowells defence for not sending them in the first place. They dont have to prove they sent them so why bother. Assignment letters erode profits and even a solicitor I consulted early on told me that it is common knowledge that DCA's do not always send assignment letters. I can understand your confussion. Lowell almost convinced me that I had received letters that I had no recollection of. I know the truth, so do you so dont be in denial. The Debt Collection industry is actually starting to beleive their own press.

 

 

For me the most suprising part of the judgement was that Lowell turned up with a barister at all. I have a letter from Blackpool County Court confirming Lowell had not paid their fee on time and their case was not listed. Somehow it was reinstated on the day. It was a travesty that Lowell had their case heard and that in spite of some dubious looking documents the judge felt that the assignment was lawful even when Lowell acknowledged signing the assignment letters on behalf of 3G

Edited July 21, 2012 by citizenB
formatting

[rc14 1]

Just an update for CAG readers and to keep this fresh for the many others who dispair at the lack of regulation and are heading for the courts. Lowell have not won this one yet!!. I have received a reply with regards to a complaint I made to HMCS about the way my case was dealt with and the response was very positive and encouraging. The matter is now being dealt with by the appeal courts. Hopefully in the end justice will be done, but I suspect Lowell have a few more tricks up their sleeves yet.

 

Incidentally it would be interesting if anyone out their has seen a copy of the deeds of assignment or any documents relating to the purchase of their 3 mobile accounts. It seems that they purchased 40,000 of them and its all on one document which they cant disentangle. This means that they refuse access to documents which their is a legal right to inspect on the basis it contains other peoples information and the price of the aquistion. Anyone wanting to exercise their legal right should insist on seeing these. See Lord Dennings observation on your rights to inspect. When did a waiter last refuse to let you check the bill before you paid?

 

Also I would not personally reccommend anyone complaining to the CSA as I have seen emails from them asking Lowells permission to dsclose information to me and suggesting to Lowell that they would not address other points which may have compromised Lowell's position. The exact phrase was "although I do not intend to raise this with Mr X where is the original letter of assignment sent by the original creditor Hutchinson 3G as this should have been sent by 3 at this time" Is this impartial complaint handling? You dccide as this is purely observation. I think it may be better to seek media attention as it was January 2009 when BBC Watchdog looked at Lowell(google it). Also anyone who had a 3G account prior to 2006 should google the OFCOM decision against 3G of May 2006 as it suggested changes to make their agreements fairer. Check it against Unfair Terms in Contract Regulations. Happy hunting

[citizenB 10,182]

Thanks for the update rec14.

 

There is a lot of controversy over receipt of letters. I think this was one of the issues raised in the Harrison v Link case.

 

Mr Harrison was meticulous in his record keeping letters received and sent. Letters sent by him with proof of posting and receipts were claimed not to have been received by the Claimant ??

 

This is something that I personally have experienced. A letter is written in response, sent by recorded or special delivery - a signed for receipt is obtained from RM website - yet subsequent letters received from the DCAs/Creditors bear the following statement.. "As you have ignored our letters" or "We have received no reply to our letters".

 

Lord Dennings comments on the right to inspect..

 

I can support the validity of my request to see sight of the Assignment via established and binding Case Law. Please refer to Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824, specifically the comments by Lord Denning repeated below for your convenience:

“It seems to me to be unnecessary that it should give the date of the assignment so long as it makes it plain that there has in fact been an assignment so that the debtor knows to whom he has to pay the debt in the future. After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge. But the notice itself is good, even though it gives

no date.”

[Happyhippy1959 148]

A good post RC14 and best of luck with taking this further. A point made from this is that you need no proof of sending, DOES THAT APPLY TO THE DEBTOR AS WELL. I am having a run in with an insurance company I sent they said they did not receive... lets hope it is a level playing field on that one, but I doubt it very much.

 

Again, Not getting into dialogue with DCA's is a valid point. I and this is me personally just state the bloody obvious i.e. NO ORIGINAL CREDIT AGREEMENT PRE-2007, CAN'T ENFORCE PUT UP OR SHUT UP... I HAVE NOTHING TO TAKE SO I DON'T CARE IF THEY GO FOR IT. I STATE THIS IS MY FINAL POSITION AND WILL NOT BE ENTERING TENNIS PING PONG. As for your defence being too long hmmmmmmmmmmmmmmmmmmmmmmm this is the lottery of the court system in this country. It all depends on the judge on the day and his/her interpretation of the law. Do like the response of the HMCS, this holds some hope for debtors in a similar position.

[unclebulgaria67 29,105]

" Depends on judges interpretation of the law".

 

This is provided that you make the relevant points, by including relevant law or cases of precedent. This is more difficult for most LIP's as this will not be something they do on a regular basis. Whereas, if DCA's use solicitors who are experienced and who have all the relevant paperwork, they will have more of a chance of success. The problem for DCA's as evidenced by many posts to this site, is that they don't have the paperwork, so they just take a chance that the LIP is unprepared. We have also seen comments on this site that Solicitors acting for Lowells and other DCA's try to intimidate the LIP, at the court before the hearings.

 

I think to avoid going through all this court mularky, what people should try to avoid, is dealing with a DCA at all. If there is a debt problem, try to resolve with the original creditor, make any complaint that you can and involve the relevant regulator/ombudsman. If after all of the relevant processes there is a genuine debt left, then try to come to an arrangement. Better to do that, than be hassled for years and have your credit record trashed. If the OC is not willing to help and the debt cannot be repaid, then discuss options with Citizens Advice or debt registered charity.

 

A big problem is that many debts with companies such as 3G are dubious and that there can be problems with documentation. This is what has happened in the OP's case. They have battled against a brick wall and I am not sure whether they will manage to get through it. Unfortunately big businesses such as 3G in league with Lowell, will have much more legal power behind them and I think Judges, are pretty reluctant to rock the boat, unless they have very good reason to do so.

 

As the OP has pointed out, if the courts can't or don't want to assist people, then the only way people can seek justice is to use the media. If enough people report problems to programmes like BBC Watchdog, then something may be done about it. Also obtaining the help of your MP or other MP's that are supportive with such issues can be a way forward. Debts incurred from mobile phone contracts, is going to get worse as time goes on, as with modern phones, people can download APS, which incur unknown charges. We have seen kids using APS, incurring huge bills and people going abroad using APS, not realising the costs involved.

[flam147 1]

bump

[flam147 1]

There seem to be two important issues you didnt take into account about your case.

 

Firstly the OFT guidelines are GUIDELINES they are not the law. The Court is only concerned with the law, they can be influenced by statuatory bodies guidelines but they don't hold any legal standing.

 

Secondly you've found out a core problem people use to avoid debts. "I didnt get the letter". The courts only require evidence of SENDING, not receipt as it is assumed that letters are received. Given your argument was that many letters were not received (seems every letter the other side claims you claim never arrived) which in a judges eyes will quickly flag you up as unreliable as a witness - that alone will destroy your case.

 

The most surprising part of the judgement is that the judge decided the early termination charge was a financial penalty and unenforceable, did Lowell's barrister not argue that it was in fact what it is - recovery of the "phone subsidy"?

 

well then the phone is not FREE it should be advertised as included in price of contract misleading in my view

[rc14 1]

Just a quick update on the 3G Lowell saga. Lowell were told by a circuit judge from the Appeals Court to comply with my requests for specific information by 8 August 2012 the request was made under Civil Procedural Rules part 18. This information includes the deeds of assignment which probably dont exist. They of course failed to comply. My Appeal is due to be heard in November 2012 and I am looking forward to exposing the false claims in Lowell's last statement of truth and this time I have information from the OFT and my MP showing Lowell made false witness statements. I will be looking forward to exposing them as a vexatious litigant. The courts appear to recognise that there were procedural irregularities in the last hearing. They have appologised refunded some of the fees I paid and have waived the Appeal fee and transcript fee. The appeal was made on the courts initiative. Lowell are hoping I dont get permission to appeal. I think the net is closing. I also have some pretty interesting emails from the CSA showing a lack of impartiality. I have also written to BBC Watchdog asking if they could revisit their exose on Lowell and 3G from January 2009.

[huggy41 690]

Subbing

[rc14 1]

Well folks Lowelll as expected failed to comply with the Judges directions by 8 August 2012, so for good measure I stuck in another Section 7 DPA request and the deadline expires in a couple of days. Still not seen a copy of my original terms and conditions after foolishly making Lowell aware the industry regulator had determined them unfair, still received no default proof or deeds of assignment, if they ever existed. No evidence of Lowells investigation of my dispute. In fact nothing but a few versions of some suspect NOA's, which seem to change whenever I point out the bits that show they could not be authentic and have been produced retrospectively. It seems absolute assignment is based on fresh air a nod and a wink these days. Has anyone out there ever managed to get Lowell or Hutchinson 3G to comply in full? Good news the ICO has confirmed that information Lowell posted on my Experian file is inaccurate, but Lowell tried to blame Experian. Bad news the ICO is doing nothing about it. I asked Experian to confirm but Experian have closed up shop and stopped replying to my emails. Lowell have done a pretty good job of making me look vexatious. Vexed yes!! All this from 3 mobile breaching the agreement and having no customer service, I would never advise anyone to take out a phone with these people, they are a disgrace. The CSA have declined to comment on the emails I sent them showing that they were not at all impartial and they thought that the public might have issues with Lowell's assignment process if they were made aware Lowell were issuing letters on behalf of original creditors before the EU Directive existed. The CSA asked Lowell for permission to tell me. Mind you as we know a CSA Director transfered to Lowell recently. While the OFT can not help individuals the inferance drawn from emails is that they are taking an interest in Lowell so anyone with problems keep on passing the details to the OFT.

 

My case is in the appeal court in November 2012. Subject to permission to appeal being granted and an extension of the time limit being approved I hope to turn things around. I took half an hours legal advice recently and a comercial litigation specialist suggested that I could win spectacularly if I can jump these two hurdles, but Lowell are prety good tacticallly so I am ot counting my chickens yet. If Andyorch is about would appreciate some advice on how to articulate these two points. I have a letter posted on the sanctum requesting advice. Thanks also to Citizen B for the recent link, the Judge referred to in the Judgement is the Judge hearing my appeal.

 

Will keep you posted.

[rc14 1]

I got a failed delivery card from the Post Office this morning may be Lowell desperately trying to reply in time to meet the Judge's final deadline of 4 o clock Friday just gone. I got a couple of emails 30 minutes before the final time limit set by the Judge from Stephen Hunter the Compliance Director. However, I could not open the attachments to determine if the evidence complied with the directions so advised Lowell they have missed another deadline. They have not met any yet and service was not effected. If the Judge keeps to his word then the time limit for appeal is extended and permission granted. Lowell should be debarred from introducing the deeds of assignment so cant prove their case. When I sign for the papers tomorrow I will see how much they have provided.

[Andyorch 10,507]

HI rc found your thread at last

 

Let me know here what now transpires.

 

Regards

 

Andy

[rc14 1]

Andyorch

Lowell tried to comply with a CPR 18 request by an email from Stephen Hunter less than half an hour before the absolute time limit imposed by the Judge expired. Regrettably I could not open the evidence file so advised the courts the deadline has expired. I signed for the evidence 2 October 2012 so have asked the Judge to apply the sanctions. These were that after 4 pm Friday 28 September 2012 the time limit for appeal will be extended and permission to appeal granted. Furthermore Lowell would be debarred from introducing any documents not supplied.

 

My problem is that Lowell have removed all compromising evidence from the section.7 DPA request I made separately and still have not complied with CPR 18.

I need the terms and conditions relating to the service agreement I had with 3 mobile in May 2006, so I can test them in court in fairness. Lowell know as do 3 mobile that they were ruled unfair by Ofcom so they don't want to release them for a Judge to tear them apart. Instead they keep sending copies if later 2007 and 2008 terms and conditions. I have 12 copies many now with the version dates removed. The Ofcom.decision ruled that the small print was too small and that assignment rights did not protect the customer. Both points extremely relevant.

 

Any advise on my right to the actual terms I signed as opposed to any generic set.

 

Lowell also have no copies of default letters and neither does 3 mobile. So default is not evidenced.

 

With regards to the deeds of assignment, there are three pages of selected info. There is a signature page updated a default date of 25 July 2007. Lowell have claimed assignment from 12 September 2008 but they say the NOA was issued January 26 2009. Does assignment not take effect from the date the NOA is received?

My contract was cancelled by me January 2007 due to a breach by 3 mobile. Does this not revoke or rescind any right to assign? Does notation apply?

 

Finally is there a requirement for Lowell to prove they sent the NOA by registered post under section 196 LOP 1925. As Lowell have doctored my information by removing 2008/09 records from.the SAR they have no record in.their system showing issue of defaults or NOA in January 09. If they did produce it now it proves they are obstructing me and unlawfully denying access to my information.

 

Any advice gratefully accepted

Cheers

Roy

Edited November 29, 2012 by citizenB

[rc14 1]

Hi

 

Does anyone out there have a copy of Hutchinson 3G (3 mobiles) terms and conditions for early 2006. These particular set of t&c's were ruled unfair by Ofcom and had to be ammended as recommended by Ofcom to meet the test of the UTCCR 1999, so Lowell Portfolio and 3G wont give them up for a court case even when Directed by the Judge and when served with a DPA Section 7. The terms are in an unusually small font size. I would dealy love to slap them on the table in court this month.

 

Also I want to prove that Lowell Portfolio tell porky's about issuing Notices of Assignments (NOA'S). If anyone out there has any genuine NOA's (they are rarer than hens teeth) relating to mobile phone assignments about 2006 for mobile accounts, could they post them (redacted of course). I would like to compare them to the copies of clearly faked NOA;s Lowell hastily prepared for the courts. I could do with both parts.

 

 

 

Cheers

 

RC14

[rc14 1]

Hi Guys

 

Had an interesting day in court today watching Lowell,s Compliance Director and Barrister leave with their tails between their legs. It was an absolute masterclass by the Judge and a privilage to listen to. My victory came from an unlikely angle. The original Judgement was set asside and a rehearing was ordered at which point Lowell agreed to bow out. It would have been interesting to see how a rehearing would have panned out, but I would prefer to have my life back. I am out of pocket, but Lowell are out by much more.

 

Neither party were awarded costs, but Lowell have to refund me within 14 days and correct my Experian File. The Judge went on a great deal about proportionality and cost of a rehearing, but said it could not be refused on costs. I think I rightly pursuaded him it was more about reputation than money and that my counterclaim was incidental. The Judge also said the previous Lower Court Judge and he may well have come to diffferent conclusions on the prospects of the counterclaim and on another number of other points, but he had no reason to challenge her right to make her decisions. I was happy to let the counterclaim fall and I think the Appeal Judge may have taken this into account when finally allowing permission to appeal. In truth I could have been tighter on the particulars. I should have stated how many letters their trading styles had sent and what value I placed on them. He did agree that the civil remedy existed to pursue a countercalim under Protection of Harrassment legislation.

 

I think the Judge clearly had concerns regarding whether the Claimant had satisfactorily perfected the assignment process under section 136(1). Lowell had produced more than one assignment letter and agreed with me that the Judge in the original hearing failed to establish which of the two letters was the one relied on. The original Judge was criticised on a number of points, most of which were around her use of discretionary powers, which the Judge today was not able to rule over including hearing a case where no hearing fee had been paid by Lowell and. The Appeal Judge latched onto the fact that the Judge at the Lower Court had stated she was satisfied I had received assignment notices(plural) despite my insistance I had not recieved any. The Judge saw no reason to accept Lowells word over mine without expanding my claim not to have received an NOA.

 

Points of interest are that the Appeal Judge was not convinced on my arguement Lowell had to prove I received the NOA. I actually made a DPA Section 7 to Lowell and pointed out that there was no record of any NOA on any of the 3 different dates Lowell claimed to have sent it. The Judge also supplemented LOP Section 196(4) with the Interpretation Act Section 7 regarding postage. He would accept normal first class postage as sufficient service. This sort of favours Lowell because it means the alleged debtor has to prove he did not receive the NOA. I had plenty in the armoury to show that the NOA could not have been and was not sent and I think thats why they declined a further hearing.

 

Lots of red faces and twitching going on. I was also concerned that the Judge stated a demand for payment could easily be considered to be notice of assignment. There was a great moment where the Judge told Lowell's compliance director and Barister that I was more understanding of the LOP 196(4) than he was. I think I accidentally snorted. The Judge also queried an explanation given under oath by Lowell as to why there were two letters of assignment dated 26 January 2009 and 27 Janaury 2009. Lowell said that both letters were the same and the dates were different because they get them typed up by an in house publisher. The Judge suggested that the two letters were completely different therefore could not both be the NOA, I would also have been able to produce genuine assignment letters which are not dated a day appart. Lowells Barrister said that my allegations were serious, I smiled and said I agreed with her.

 

The most interesting point made by the Appeal Judge was that I had made too much contact with Lowell and asked for too much information. This had allowed them to put their house in better order. The Judge said I would have had a stronger case if I had asked for information and left it when they failed to provide it. Lowell's methodology is to make you ask for everything, fail to provide it and then make your persistence look vexatious.

 

I would in retrospect bang in a SARS request for all information and then leave them to go to court. They will already have poo pood credit files and the CRA's will not correct it without permission from Lowell. I would not engage with them at all. If you dont owe it and they wont go away complain to the FOS. However the FOS will only look at financial products so mobiles wont be under their jurisdiction.

 

Finally when requesting documents take care you quote the correct CPR section. Lowell were excused for failure to disclose because I made a request and submitted a Section 18 request which did not apply.

 

Good Luck

[cerberusalert 6,327]

Well done. In the immortal words of Cpl Jones.... "They don't like it up-em!"

[huggy41 690]

well done you a great read and some good pointer's raised.

[Andyorch 10,507]

Well done RC Im delighted that this has been resolved to your satisfaction.

 

 

Regards

 

Andy

[GuidoT 1,709]

Good work, very technical indeed, I do not understand the half of it!

[unclebulgaria67 29,105]

Finally when requesting documents take care you quote the correct CPR section. Lowell were excused for failure to disclose because I made a request and submitted a Section 18 request which did not apply.

 

Good Luck

 

Which is the correct CPR to use in this situation ?