Lowell Bankruptcy notice, CAp1 Card 'debt'

[42man]

You need to get an adjournment if possible.....but more importantly you need to get all the paperwork in the court files ASAP, even if it means going to the court, say that you are the litigant in person, the court may ask you to pay a small amount for copying charges. It is vital to see what is said on the process servers witness statement and the petition. If you have never seen the statutory demand and not set it aside, then you may get the chance to raise any issues at the petition stage. You need to move quickly though....Are you sure the hearing date is the 8th September ? That is a Saturday ? You should double check this.....if it is later then you still have time to submit your defence.

 

A CCA Request needs to be sent to Lowells ASAP too, a SAR is useful, but it only shows that you are making a reasonable attempt to get any paperwork. The SAR needs to go to the ORIGINAL creditor. Please come back to me when you have all the paperwork from the court, and be careful what you write on here as this horrible company read these forums.

[42man]

It looks like you have time to submit your 6.19 - which you can find here - http://www.bis.gov.uk/insolvency/About-us/forms/england-and-wales

 

You will need an accompanying affadavit, which you can find examples of on here, but if you aren't sure then do shout.... Do you live in a place with a shared door / gate ? are any of the houses next to you empty ? any problems with the post ? Once you have the paperwork from the court (the petition and associated witness statement of the process server) then we can look at any potential issues (aside from the agreement, charges etc)

 

Let me know when you get the paperwork....

[42man]

OK thank you, it could possibly make a difference....

[42man]

Have a look through here - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

 

or if you search under 'Hamptons' or 'Lowells' on this site you will find plenty of threads.....the defences on statutory demands can be used on defences for petitions....but I certainly wouldn't send out anything until you have had an opinion from other wonderful caggers on here.

[42man]

Did you send the SAR to the original creditor ? Did you enclose a £1 postal order for the CCA request ? And no you do not need to send anything to Hamptons at the moment....Your 6.19 and affadavit needs to be in the court in the court file 7 days before the hearing and you will need to send copies to the claimant (but you can't do much yet until you have seen what the petition says)....Do spend some time reading on the threads...and if you aren't sure what is being said then do ask...

[42man]

Dont panic, if you aren't sure of anything then just ask away. As for the SAR then yes, I would certainly send a SAR to Capital One. The only reason I say this is you have to show that you are making more than a reasonable attempt to gain information. The SAR to Lowells will not do any harm at all. The court will have all the paperwork, Lowells will probably not send you anything (re petition). What you must also do is make sure you report this to the OFT too...it is vital, they are getting together a nice thick file on this company.

[42man]

What ? That is the first time I have heard of it.....you should visit the court, tell them at the desk that you are a litigant in person and you would like to copy the paperwork as you have not received any....

[42man]

What I find strange is that you have a hearing on the 8th October and yet there are no court files ????!!!!! On what basis are they having a hearing for ?? I suggest that you receive the petition from the process server (do you have a video camera you can put near the door ?)

[42man]

You have done everything you can at this stage CCA, SAR, you just need to know now how they attempted (if indeed they did) to serve the statutory demand.

[42man]

The only reason I say using a video camera is that it has been known for process servers to lie, and any evidence in a petition that is untrue can alone thwart an attempt like this to get you bankrupted.....

[42man]

Well it will be interesting to see what they have written on their petition with regards to their 'attempt at personal service'....

[42man]

I think that if you are not frightened to stand in front of a judge, puff out your chest and fight this, then I suggest that a letter to Lowells may be a good idea. Something along the lines of. Make sure you date the letter and send it recorded.

 

Dear Sirs / Madam

 

I understand that a process server is attempting to serve a bankruptcy petition on me.

 

Firstly, for the record I can categorically state that I have not seen any statutory demand, nor have I been made aware of attempt to serve a statutory demand for this alleged debt.

 

Secondly, I will be VIGOROUSLY defending this action at my local county court where I will be claiming my costs.

 

Thirdly as the way you have acted is clearly in breach of CPUTR2008, I will have no hesitation in bringing this matter to the attention of both the courts and the Office Of Fair Trading.

 

Please note the date of this letter, as I would expect you to forward me a copy of the demand, a copy of the petition, along with statements for the duration of the account, details of all charges, a default notice, a termination notice, a letter of assignment, a deed of assignment, details of personal payment protection insurances, and as requested under the Consumer Credit Act 1974 a legible copy of the signed agreement.

 

If you do not respond within 7 days, (sending all correspondence by traceable delivery) I will be requesting full disclosure, and make no mistake when the issue of costs arises I will be showing this and all other evidence to the judge.

 

I trust this makes my position completely clear.

 

Yours faithfully.

[42man]

If that is the date of the hearing then yes, don't forget your opposition to the petition and costs should be in the court and with the claimant no later than 7 days before the hearing

[42man]

form 6.19 and an accompanying affadavit which I posted a link to in #7

[42man]

no problem

[42man]

ok that is very interesting...is the house next door empty on occasions (with no residents ?)

[42man]

It could help your case....

[42man]

No problem, can you give me a few days to sort this....as it stands (and with no petition) then I think you should apply to set aside the demand (forms 6.4 and 6.5) which you will accompany with a separate witness statement from your wife (to state that neither you nor her had seen any statutory demand) as well as yourself. We can start building the 6.19 too...

 

Take not that I (a)

intend to oppose the application to make a bankruptcy order on the following grounds:–

 

1) - The alleged debt is substantially disputed.

 

a) - The claimant is in default of a request for a copy of the credit agreement

 

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 defendant also refers to

 

PHOENIX RECOVERIES (UK) LTD SARL v DEVENDRA KOTECHA (2011)

 

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Patten LJ) 26/1/2011

 

A creditor had failed to satisfy a debtor's request under the Consumer Credit Act 1974 s.78(1) for a copy of a credit card agreement as it had not, on the evidence, included the original, actual terms and conditions in respect of interest rates then in force. The creditor was, accordingly, not entitled to proceed to enforce the debt under s.78(6).

 

"Interest rates were a term of central importance in credit card agreements. There was a strong case that the interest charges which would have been specified in the terms and conditions when B and K made the agreement in 1998 were those in the leaflet and not those which appeared in P's evidence. Under s.78(1), a creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made. In those circumstances, P had not proved that that obligation was satisfied, and it was therefore not entitled to progress to enforce the debt against K under s.78(6)."

 

The claimant has failed to provide any copies of any valid default notices in the prescribed format as required under the Consumer Credit Act 1974

 

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, the defendant 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 deeds or notices of assignment

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].

 

SERVICE OF THE DEMAND AND PETITION

 

2) - The defendant avers that neither he or his wife/partner had sight of any statutory demand until the defendant wrote to the claimant who claims by way of an accompanying report from Lewis Investigations that..... (what Lewis investigations have said)

 

3) - The defendant lives in a semi-detached house, with a doorway adjacent to the neighbour house at a very close proximity. The house is a rental property let on short term lets and is frequently empty between tenants. The defendant firmly believes that the claimants process server has been 'economical' with the truth.

 

4) - The defendant would like it to be known to the court that in a recent written communication to the defendant a process server claimed to be delivering an item / items to me on (xxxx date) The claimant's wife waited in all evening for the process server to come but can categorically state that no person whatsoever turned up that evening.

 

The defendant avers that the 'personal service' attempt is flawed and it is plainly clear that no service has been attempted whatsoever.

 

I refer to -

 

 

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

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly.

 

 

 

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

 

 

 

I haven't finished yet, but this is a start and a work in progress.....

 

Wifes witness statement

 

Statement: Defendant

Party:

Statement:

Exhibits:

Date:

 

CLAIM NO.XXX of XXXX (or in the case of Lowells/Hamptons vs (YOU))

 

 

APPLICATION TO DISMISS THE BANKRUPTCY (OR STATUTORY DEMAND)

 

WITNESS STATEMENT OF MRS (name)

_________________________________________________________

statement of MRS (name)

_________________________________________________________

 

I, Mrs (name) of …………(Address)…………………………… will say as follows:-

 

Up until the date of the bankruptcy order, I was not aware of any impending court action against my husband. Neither I or my husband did not receive any statutory demand. If he/we had received the statutory demand he/we would have applied to have it dismissed.

 

I believe that the facts stated in this witness statement are true.

 

SIGNED ………………………………………..

 

MrS

 

 

Dated ………………………………………..

 

You will also need to do something similar but refer to yourself.....

 

Party: - LEAVE BLANK

Statement: - LEAVE BLANK

Exhibits: - LEAVE BLANK

Date:- put the date in here as well as at the bottom....

 

I think you should also give a financial summary to show that you aren't bankrupt either.....

 

In light of the above evidence, the defendant gracefully requests the judge to dismiss the petition and award costs to the defendant either in the indemnity (as appropraite) or in the standard

 

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 collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

[42man]

At the moment....you haven't seen the petition and it seems like they aren't going to send you a copy of it.....so the approach is to set aside the demand which you can use 6.4 and 6.5....your defence on the petition will be 6.19 (with an accompanying affadavit). We can also put your costs together which you will need to send to the opposing side AND the court.....but I think you need to state in the petition set aside 6.19 that despite your requests you have not seen any petition !! Shout if you need help....

[42man]

Hi Griffiths....(good question) for your form 6.4 I would suggest that you do put the time in of the court appearance as you wish the demand to be heard then.....you must make it clear in your 6.19 that you have NOT had any sight of the petition. The witness statement is 6.5 for the demand. And as for the 6.19 then yes of course you can attach any other sheets you need to use to this. But don't forget that your defence for your 6.19 needs to be witnessed for the bankruptcy dissmissal, your 6.4 and 6.5 no longer need to be witnessed.....

 

Checklist

 

What you are doing is setting aside the demand (as you hadn't seen it) at the same time you are applying to dismiss the petition (which you haven't seen despite your efforts and letter to Lowells/Hamptons - you have requested it but they have not sent it)

 

Form 6.4 and 6.5 in at the court along with your partners witness statements and any accompanying docs (like the CCA request, and SAR - to show that you have attempted to do all you can to get information)

 

Form 6.19 in at the court along with an accompanying affadavit which needs to be sworn in at the court. You need to send copies along with any accompanying paperwork (CCA requests, SAR's etc) to Lowells/Hamptons

 

There is some duplication here unfortunately...if I'm not making it clear then please do ask...

 

You should also do a costs sheet too - have a look here as to how they are laid out - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

 

Are you ok on this ?

[42man]

6.19 is the document stating why you are opposing. The accompanying affadavit (in my case) mirrored exactly what my 6.19 said. You can get the affadavit sworn in at the courts, it should be free at local country courts, last time at the Central London Courts it cost £12, and with a local solicitor it costs £5

[42man]

You can put in title Mr XXXXXXX vs Nasty DCA

[42man]

Very best of luck.....grit your teeth and go for it, be polite to the judge, (sir or madam) don't interrupt the judge, speak a little louder than normal......be firm and show the judge just how angry and upset you are at having to deal with this, do ask for your costs too.....!!!

[42man]

Well done......has the judge specifically asked for anything else apart from the agreement ?

 

Now is the time to write to the OFT too....(if you haven't already)

[42man]

OK well I do hope you push the other issues and not just the agreement...