SD from Lowells via Hampton Legal for CAP1 card debt - HELP!!

[42man]

As it stands you really must get this set aside, as you will see on these forums, Lowells do take these to petition stage. It certainly helps that you have some potential missold PPI...applying to set aside a stat demand does not cost anything in itself.

 

To start with you need to send a CCA request to Lowells, this will cost you £1, make sure you send recorded delivery, A SAR is also a very wise move, as you have to be seen to be making every effort to get information, unfortunately with these being the insolvency rules and not civil rules you cannot apply any of the pre trial disclosure, only when you are in front of the judge can you request an 'unless' order.

 

You will need forms 6.4 (set aside) and 6.5 (witness statement) which you will need to get in to the closest court to you (it should be named on the demand) within 18 days of the receipt of the demand.

 

Are you well enough to go to court and kick Lowells into touch ?

 

Also can you remember when you last made any actual payment to this account ? any chance it may be at least 6 years ?

 

You can find the links to CCA requests and SAR's in my signature, this is where you can find forms 6.4 and 6.5 - http://www.bis.gov.uk/insolvency/About-us/forms/england-and-wales

 

There is some information on how to fill out form 6.4 here - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489#post1749288

 

You will find a lot of threads on here which are about Lowells and stat demands, please do have a good read through, if you need help filling out the witness statement please shout. As for your costs they do not have to be in court until at least 24 hours before the hearing.

[42man]

Why should they go through a full and final settlement when they have already gone to the trouble of serving a stat demand ? Lowells show no mercy as you can see from the huge number of threads on these forums. You will also see a number of threads on here where they roll up statute barred debts in to a stat demand, and you will see how they have on several occasions attempted to say that a mystery payment has been paid to avoid a debt becoming statute barred. It is up to you, however when you go to court and kick them into touch you will probably have no more than a few months before it becomes statute barred, if you get into dialogue with them now, then you will have to wait another 6 years.....If you read through the many Lowells threads on here you will understand what I mean.

[42man]

The fact that they are offering discounts and payment plans despite issuing a statutory demand shows they are attempting to abuse the insolvency service as well as their own associations code of conduct. If there is any kind of a sniff of a triable issue (which you clearly have) then a judge usually dismisses it. And I can tell you this that once you submit your application to set aside, they won't back down.....(or don't usually). That is when you hit them in the pocket with a costs order.

[42man]

Can you type up here what the particulars of the debt / claim are please....but don't be too specific with dates / exact amounts...

[42man]

It should have a section called 'particulars of debt/claim' where it says The Claimant is claiming etc etc under an assignment etc etc amount dates......if you could type it up (without the amounts / dates ) then that would be great....

[42man]

in which case your form 6.5 will say.

 

The defendant disputes the alleged account.

 

The defendant believes that the claimants use of a statutory demand is trite law and merely a tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of the process. I believe the claimant will not turn up to court to defend this demand and it is the defendants contention that use of the insolvency laws as a debt collection tool is an abuse of the Insolvency Rules.

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act 1974 (attachment 1 (will be your CCA request))

 

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

 

 

 

The claimant has failed to provide any copies of any valid default notices as required under the Consumer Credit Act.

 

The claimant has failed to provide any deeds or notices of assignment.

 

The claimant has failed to provide any default notice as required under the Consumer Credit Act.

 

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 claimant has failed to provide any statements for the duration of the agreement including any excessive charges

 

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

 

The defendant avers that some debts are made up entirely of charges and / or potentially missold personal protection insurance.

 

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 also wishes to make known the statutes in the Consumer Protection From Unfair Trading Regualtions 2008, and believes that the alleged creditor is in breach of statute

 

Offences relating to unfair commercial practices9. A trader is guilty of an offence if he engages in a commercial practice which is a misleading action under regulation 5 otherwise than by reason of the commercial practice satisfying the condition in regulation 5(3)(b).

 

Which clearly state...

 

Misleading actions

 

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(3) A commercial practice satisfies the conditions of this paragraph if—

(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

(i)the trader indicates in a commercial practice that he is bound by that code of conduct,

 

Interpretation2.—(1) In these Regulations—“average consumer” shall be construed in accordance with paragraphs (2) to (6);“business” includes a trade, craft or profession;“code of conduct” means an agreement or set of rules (which is not imposed by legal or administrative requirements), which defines the behaviour of traders who undertake to be bound by it in relation to one or more commercial practices or business sectors;“code owner” means a trader or a body responsible for—(a)the formulation and revision of a code of conduct; or(b)monitoring compliance with the code by those who have undertaken to be bound by it;

 

“trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trade

 

The defendant refers to the code of conduct stated by the Credit Service Association of which Lowells are a member -

 

The code of conduct clearly states

 

q) Where a debt or the sum owed is disputed, as

soon as is practicable, supply information to the

debtor in support of the claim. Where no

information has been supplied by the creditor,

obtain the required support, or failing that cease

collection action.

 

b) Adhere to all relevant requirements under the

Consumer Credit Act 2006 and any other

relevant legislation.

a) Conduct its business lawfully, comply with

all relevant UK legislation, regulation

and judicial decisions and trade fairly and

responsibly.

c)

Comply with this Code of Practice and

follow any guidance notes issued by the

Board of the Association

.

Comply with

debt collection Guidance as

Published by the Office of Fair Trading

In light of the above evidence, the defendant gracefully requests the Judge orders the claimant to pay my full costs + compensation (either in the standard or in the indemnity) in light of the distress and upset this has caused myself and my family 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).

I believe the facts herewith in this form are true.

 

 

 

Edited August 10, 2012 by 42man

[42man]

You'll need to read this, try and understand it, tidy it up and number it, the latter part (CPUTR2008) only applies to actions I think the OFT can take, however it would be nice to show the judge what a horrible bunch of weasels they are....

[42man]

SAR costs £10 by the way....again send postal orders and keep copies of everything !!

[42man]

CCA to Lowells and SAR to Cap 1

[42man]

hi 42man

cca was recieved by lowells 29th june and SAR recieved by Cap1 28th june.

As SD was in my hands on Monday 25th June I assume my 6.4 and 6.5 forms have to ne in to the court by Thursday 12 th July at the latest?

Have rough drafts written,but will it be ok to state in them that no reply has been recieved ref the CCA?

Also a wayne from Hamptons phoned the house on the 6th july but I wasnt able to get to the phone...should I have phoned him back?Would like to know where he got the number from....

Bluekooga

 

If you look at post #20 in this thread see this bit here -

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act 1974 (attachment 1 (will be your CCA request))

 

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;

[42man]

You have a bona fide and significant dispute.......with regard to excessive charges and missold PPI which Capone are dealing with. Lowells should drop this like a stone.

[42man]

You can ring the person named on the demand, state that in no uncertain terms that you are going to oppose the demand in court and claim your full costs. (If you can record the call all the better) and ONLY speak to the person named on the demand.

[42man]

Sending a SAR when you receive a statutory demand shows the judge that you are making a reasonable attempt to get information, (and lets face it you won't be provided with much information unless you do it yourself or the judge makes an' unless' order (which only gives them time) and in 99% of cases they don't produce all the relevant paperwork. In my own case when I successfully annulled my BR, one of the SAR's had come through and they didn't even have any record of me having ANY account with 2 of the creditors....so it can be a good move. If for any reason an adjournment does happen, by the time it does a SAR should have been complied with, and usually not everything that should be there is....

[42man]

Here is some help filling in 6.4 - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489#post1749288

[42man]

Set aside of a statutory demand is free.....the only time you may be charged is if you are filing a stat demand late or I believe the central London courts do charge, why are you submitting an affadavit as opposed to a witness statement ? To set aside astat demand you need forms 6.4 and 6.5 (witness statement)

[42man]

In which case the person at court has got it wrong....to set aside a stat demand (using forms 6.4 - set aside form and 6.5 - witness statement) should not cost anything

[42man]

Affadavits for setting aside stat demands were scrapped a while ago.

[42man]

Look at post #37 here - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489-Statutory-Demand-on-a-Stature-Barred-Debt!-Mortimer-Clarke-Marlin-***WON***/page2

[42man]

Well apart from one late filing of a statutory demand, and as you will read on all the other stat demand cases on here yours will be the first ever I have seen in 5 years to have to pay a fee....

[42man]

If you have any doubts then I suggest you go and get a free consultation with a solicitor.

[42man]

Would you send me a PM telling me which court it is.

[42man]

You can at least, when/if it goes to a hearing show the judge the SAR, the recorded delivery slip.....to show that you have made more than a reasonable attempt to get information....and show that they are in breach of the data protection act. As far as the SAR goes then you need to send them a recorded delivery letter entitled LETTER BEFORE ACTION, give them a further 14 days to comply, and enclose a copy of the original letter and royal mail slip - have a look here - http://www.consumerwiki.co.uk/index.php/Data_Protection_Act:_Non-Compliance

[42man]

[42man]

Amazing.....they are quite happy to have an account with you and send all statements to your address, and yet they require all this.

[42man]

I think you should drop them a line (recorded) explain that they have always sent their statements / letters to your address for X years. they can ask you for your signature but I would put lines through it. Enclose a copy of your passport or driving licence.