Halifax sold debt to Lowell Portfolio 1 Ltd - is it unenforceable?

[walter white]

Hi everyone,

 

I'm new on here as a member, but have browsed this site for a long time.. in fact this particular debt had "gone away" due to letters I had previously sent from researching here, but has now resurfaced and I just want to check I'm in my right to go down a certain route with it.

 

So, some background. I had a credit card with Halifax from 2004 to 2008. The non-payments happened as a result of a silly career choice in going self-employed and if I didn't make sales I didn't earn so I started having difficulty making payments from early 2007 onwards and the late charges (£35 a pop) in those days soon started to stack up. Pretty much all of 2007 I was paying the account at least a month overdue so getting charged each time. The default is listed as mid July 2008 so I fell totally behind early 2008. The total balance ended up over a grand higher than the card limit - all due to penalty charges.

 

I was aware how serious the situation was so I was writing to Halifax to stop charging me interest, and I wrote them at least 5 letters, however I was getting no response and I now have no record of the letters!

 

Pretty soon after it defaulted it went to a DCA and we were discussing repayment plans etc and I paid them £10 a month for two months in late 2008, and that's when I managed to fend them off with a dispute over charges letter because I think around the time there was that whole issue about charges being punitive and excessive and it all went really quiet. I stopped the £10 payments. Then it got passed to another DCA, and then they closed it and passed it back to Halifax after they sent me the "you will not receive any more correspondence from us on this matter" letter (I was resending the same letter about charges!) and this repeatedly happened with 3 or 4 DCAs. Plus I'm pretty sure I was doing CCA requests which they couldn't provide but I'm a bit hazy on that. Then radio silence for a couple of years, and now I have just received this letter on Halifax headed paper:

 

"Your account with HBOS PLC with a balance due for payment of £X was sold to Lowell Portfolio l Ltd by us on the X August 2012 and this letter is give you notice of the assignment of the debt.

 

We have not been made aware of any reason why the debt should not be paid and as Lowell Portfolio l Ltd are now the legal owners of the debt any payments you make should be made to them and not to us or any of our previously appointed agents.

 

If you have any query, want to discuss the debt or repay what you are contractually obliged to please call the number below. Any further communications and payments must be addressed to Lowell Portfolio l Ltd at:

 

Enterprise House

1 Apex View

Leeds

LS11 9BH

 

Telephone: 0844 844 4716

 

Yours sincerely,

(digitised signature Craig Ballantine)

Craig Ballantine

Manager Collections & Recoveries"

 

The letter is accompanied by an intro letter from Lowell, basically detailing the amount I owe and what the phone number is to call (yeah ok!) etc.

 

I've noticed as well that Lowell have put a duplicate default on my credit file, so my total debt appears double what it was. This default was the only glitch on my credit rating and now it looks twice as bad! Thankfully the date has remained the same but even so!

 

I have been in contact with Equifax and Noddle (and I guess I will have to re-activate the £15 a month to Experian to get them to talk to me) about contacting Halifax to remove the first default.

 

I was thinking to try and get the first default removed, then work on Lowell.

Can I ignore Lowell just now until I get somewhere with getting the original default removed, as per ICO guidelines?

 

Equifax responded with :

 

"Thanks for getting in touch. Your unique tracking number for this query is X. In order to resolve this query, we've contacted the company to examine their data.

This process can take up to 21 days, but as soon as we've got an update, we'll let you know."

 

What's Lowell's next move?

 

What do you guys think my next move should be?

 

What's changed if anything in the last couple of years? Surely Lowell have wised up a bit?

 

Halifax saying they "know no reason why I shouldn't pay it" is tosh - several DCA's tried and failed and always passed it back to them.

 

My ultimate goal is to play this so cleverly that I have Halifax remove the 1st default then go at Lowell's with something that makes them remove theirs... but am I dreaming? LOL.. if it does all go a bit pearshaped, given that the debt is £2k ish what do you think I can get away with offering Lowell in F&F with removal of the default?

 

Appreciate your help.

[Fred Bassett]

Personally, I would send them a CCA request, just to see what they've got. I know you already sent one to the Halifax, but you won't know what paperwork, if any, was transferred to Lowell. If nothing else, this will give you time to consider your options.

 

It is unlikely that you will get any help on here regarding the unenforceability route.

 

Regards.

 

Fred

[unclebulgaria67]

The Halifax default should come off shortly, as they should remove after they have sold it. I don't think it is unusual for the default to be shown twice for a short period. Just keep an eye on the record, to make sure Halifax remove.

 

Lowell will write to you under their various brands, Lowell, Red, Hampton Legal. They won't rush into trying to enforce the debt, so you have time to decide what to do.

 

If I were you, I would suggest that you send Halifax an SAR to obtain all of the statements of account for the period and copies of letters etc. Then work out the value of all of the charges and look to get the excess charges taken off the debt value. Speak to the FOS about whether you need to further a complaint about these with Halifax or Lowell. It could be that Lowell would be responsible, as they have taken over all issues about the debt.

 

It would be in your interest for Lowell to not accept reducing the debt by the excess charges, as you could then go down the FOS route. This would add 6 months plus, where Lowells could not chase for the debt. Once a complaint is registered with a company and especially if it has been escalated to the FOS, they are not allowed to chase for the debt.

 

Once you reach the point, where the actual correct value of the debt is worked out, you could then make an F&F offer, subject to credit recordmarked as fully satisfied or enter into a repayment plan. As the debt is fairly recent, not worth risking any enforcement action, by not paying.

[BRIGADIER2JCS]

HBOS should remove their entry, so write to their Data Controller requiring them to remove the old entry, is the default date the same on both entries?

As to Lowell removing the default I doubt very much that you have grounds for asking for it to be removed.

 

A SAR is a good idea,but is very unlikely to provide a copy of the agreement so a separate CCA request as well would be needed.

[walter white]

OK thanks all,

 

So CCA request to Lowell is my next move? This would be letter N in the library right? What options will this leave me with if a) they cannot produce and b) they can. Does the agreement need to be signed by me or has this changed now? It was a pre-2006 agreement.

 

What is my escalation route if for some reason Halifax do not remove the default?

 

Thanks again.

[BRIGADIER2JCS]

If it's pre April 2007 they would need the original to enforce in court.

If they cannot produce an agreement it mean they cannot enforce in court.

When was the last payment or acnowledgment in writting made.?

What is the default date showing on credit files.

[walter white]

If it's pre April 2007 they would need the original to enforce in court.

If they cannot produce an agreement it mean they cannot enforce in court.

When was the last payment or acnowledgment in writting made.?

What is the default date showing on credit files.

 

Cheers Brig, do you mean if they cannot produce a signed (by me) agreement?

Last payment was Dec 08 £10 via the 1st DCA after default- no acknowledgement since then.

Default date Aug 08

[walter white]

I thought the SB angle was 6 years? It's been less than 4 as the last payment was Dec 08? I'll be happy as Larry if I'm wrong here...

[daverules]

Sorry bit confused here, last payment was 08, 4 years ago, how is that statute barred ?

[bigshoes...bigsocks]

It's not daverules. I'd suggest the Brig has got a date mixed up. It's not statute barred unfortunately.

[BRIGADIER2JCS]

It's not daverules. I'd suggest the Brig has got a date mixed up. It's not statute barred unfortunately.

 

Letter deleted different thread.

[walter white]

Can I just ask again do they need to produce an agreement signed by me?

[BRIGADIER2JCS]

Yes but can attempt to produce a reconstituted agreement.

[SWLABR9]

Is it not more important they produce an agreement signed by both of you, and I do mean wet ink signed, not some reproduction anyonymous 'on behalf of the company' type signature?

[BRIGADIER2JCS]

Most apps are simply marked approved by the credit provider especially when made on line.

The Volume of apps would make the ''personal'' signing of such documents prohibitive as rarely

now are these accounts opened at a face to face interview.

[Fred Bassett]

Yes but can attempt to produce a reconstituted agreement.

 

Brig,

 

Am I correct in saying that in order to enforce in court they have to produce the original document? Also, how can you go about finding out if they have the original or not?

 

Cheers.

 

Fred

[walter white]

The original agreement spans back to 2004 and wasn't done online. This would mean Lowell or Halifax archiving back over 8 years. Not sure how possible it would be to get the original doc especially as so many DCAs tried and failed here before.

 

Also, does anyone know my escalation route if Halifax don't remove original default? Is it an ICO complaint?

[unclebulgaria67]

The original agreement spans back to 2004 and wasn't done online. This would mean Lowell or Halifax archiving back over 8 years. Not sure how possible it would be to get the original doc especially as so many DCAs tried and failed here before.

 

Also, does anyone know my escalation route if Halifax don't remove original default? Is it an ICO complaint?

 

You will not get the default removed, unless you can prove that you were not in a default position. Does not matter if they cannot find the original CCA.

 

I think this has been tried before. McGuffick v RBS ?

 

Are you thinking that if you don't pay, that nothing will happen ? They can still go for a CCJ or bankruptcy. Not being able to find the original may not stop them.

[walter white]

I'm talking about the original default from Halifax. As I understand it, two registered defaults for the same debt is not permitted in the ICO guidelines but I don't know where I really stand with this and how much weight this holds.

[unclebulgaria67]

I'm talking about the original default from Halifax. As I understand it, two registered defaults for the same debt is not permitted in the ICO guidelines but I don't know where I really stand with this and how much weight this holds.

 

Have you asked Halifax whether they are removing the default now that Lowells have added theirs following the sale ? If not, ask them.

[walter white]

Heard back from Equifax advising that they have spoken to Halifax, who are now Lloyds apparently, didn't know that, and to contact them directly to discuss. Gave me the address and everything. Question is, is there a template you guys are aware of to get them to remove their original default? Thanks

[BRIGADIER2JCS]

No there is nt a template, all you need to do is write to the Data Controller at the address you have been given and simply state the facts and what you want them to do.

[walter white]

Letter to Lloyds/HBOS sent.

 

In other news, I've been doing some digging around and found the last piece of correspondence I received on this matter, from a company called Wescot:

 

3rd June 2009

 

Wescot Ref No: X

Client: Halifax Credit Card

Client Ref No: X

 

Dear ,

 

I refer to your letter dated 2nd May 2009 regarding the above matter.

 

In view of your comments, we contacted our client to request a copy of the Credit Agreement and statements for the account to enable you to advise us of the proportion of the debt you were disputing. I understand that you are in receipt of the statements, however, our client has not provided us with a copy of the Credit Agreement and consequently, they have withdrawn the account from Wescot. Accordingly, you should not receive any further letters from Wescot in respect of this account. Should you require any further information regarding the matter, you will need to contact our client direct.

 

I hope that this provides you with the information you require and concludes Wescot's involvement to your satisfaction. If you feel that we have not resolved your complaint, you do have the option of referring it to the Financial Services Ombudsman within 6 months of receipt of this final response. Details of how to contact the Ombudsman are set out in the enclosed leaflet "your complaint and the ombudsman".

 

Yours sincerely,

Stephanie Chapman

Process and Compliance Co-ordinator

 

OK, I now refer back to the recent letter from Halifax (or Lowell writing on Halifax headed paper, since another letter has arrived from Lowell with the same return address on the back of the envelope!?!) where they state that "we have not been made aware of any reason why the debt should not be paid".

 

So since 2009, Halifax have been aware that I placed the account into dispute?

 

Can I use this ?

[walter white]

OK need some quick help please.. Halifax got my letter and have called me to discuss. Wanted to amend NOT remove original default and offer me £50 as an apology?! Said I'm not really interested in that, I want it removed as there is another default for same thing from Lowell on credit files. Now has gone away to "discuss" with manager. Will be calling me back shortly - I have a feeling they will stick to "amending" the default to balance zero but not actually removing it is there anything I can do here to get it removed? Remember this is the original default not the new duplicate one that Lowell have set up. Thanks

[BRIGADIER2JCS]

Having dealt with a similar situation recently on behalf of another I teephoned the ICO for advice, there were extremely helpful as each case is different I suggest you call the ICO for advice on this.