Lowells Statutory Demand (Capital One) - *** WON + COSTS ***

[downsouth]

Well, I've had a few years off this lark, then out of the blue I get served (correctly, by hand) a SD. So here we go again.

 

SD dated 15 Oct, served through BW Legal 18 Oct ... set aside needs to be handed in to court by 5/11

 

I phoned the helpful Cap One on 0115 843 3792, option 4, last payment received April 08 and there are default charges made up all of £12 charges totalling just under £300 excluding any interest. This amount is around 10% of the total claimed; the Cap One operator said that they are defending all £12 charges levied so no offer made.

 

19 Oct CCA request to Lowells, copy to BW Legal - 12+2 days takes us to today 2 Nov.

19 Oct SAR to Cap One Nottingham, address given by phone operator.

 

I have read many of the threads on here on this subject, and have comlpleted Form 6.4 Set Aside and 6.5 Witness Statement. If the CCA request documentation doesn't arrive in the post today, Lowells are in breach of S77(6) and I will submit my application into court this afternoon.

 

WRT 6.5 Witness Statement, I've taken 42man's excellent and often repeated suggested text and, as he requests on the individual threads, taken time to understand it and tidy it up a bit.

 

If you don't mind, I'd like to paste below how I intend to submit this as it wouldn't all fit on the downloaded form 6.5 as it was.

 

I'll copy this out in a separate post if that's OK.

 

 

 

 

 

[downsouth]

Form 6.5 Witness Statement text

 

1. I dispute the alleged account.

 

2. I believe 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’s letter accompanying the statutory demand included invitation to offer part settlement by way of instalments. (within attachment “A”)

 

3. The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act 1974 (attachment “B” and “C”). The claimant is in breach of Section 77 (6) of the act:

S77(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; and

(b) if the default continues for one month he commits an offence.

 

4. The claimant has failed to provide any copies of any valid default notices as required under the Consumer Credit Act 1974 (attachment “D”)

 

5. 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.

 

6. The claimant has failed to provide any statements for the duration of the disputed agreement. The amount detailed in the Claimant’s claim, which is likely to include substantial 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 a 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].

 

7. The defendant refers to the code of conduct stated by the Credit Service Association of which the claimant is a member. The code of conduct clearly states its members must comply with debt collection Guidance as Published by the Office of Fair Trading,

 

a) Conduct its business lawfully, comply with all relevant UK legislation, regulation

and judicial decisions and trade fairly and responsibly.

 

b) Adhere to all relevant requirements under the Consumer Credit Act 2006 and any other

relevant legislation.

 

c) Comply with this Code of Practice and follow any guidance notes issued by the Board of the Association

 

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.

 

8. In failing to comply with the CSA’s own code of conduct above I believe that the claimant is in breach of the Consumer Protection From Unfair Trading Regulations 2008. 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).

 

In light of the above evidence, the defendant gracefully requests the Judge orders the claimant to pay my full costs and 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).

 

 

Attachment A is a copy of the served SD and accompanying letter including offer to part settle.

 

Attachment B is a copy of my CCA request to Lowells

 

Attachment C:

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

 

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' 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

 

 

Attachment D:

DEFAULT NOTICE

 

 

The Need for a Default notice

 

 

It is 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

[42man]

Downsouth.....full credit for doing this, and you have done a fine job....(can I please also suggest that you report this to the OFT too).

 

I think also that you may like to add "The claimant has not provided any statements for the duration of the account" then possibly you may incorporate a piece about interest being correct in line with statements as in Phoenix vs Kotecha.

 

You may also like to back up their responsibilities to adhere to the Consumer Credit Act as in Jones vs Link Financial - Manchester High Court -[2012] EWHC 2402 (QB) (just in case they try and say they aren't the creditor (so they think they aren't obliged to conform with the Consumer Credit Act)

 

"This is not because he becomes under a contractual obligation to perform those duties, but rather because he cannot assert his rights under the regulated credit agreement without accepting the statutory obligation to perform duties under the 1974 Act relating to enforcement of those rights. "

 

"I agree with Professor Guest that this would apply to the statutory duties under ss.77, 78 (duty to give information to the debtor), ss.76, 87, 98 (duty to serve enforcement, default and termination notices), s.97 (duty to supply settlement figure), s.103 (duty to provide termination statement)"

 

"In my judgment the "duties" referred to in section 189 are therefore those statutory duties under the 1974 Act which the assignee has to perform in order to enforce his assigned rights. These duties have "passed by assignment" in the sense that it is by reason of the assignment that the assignee becomes obliged to fulfil them"

 

.

[downsouth]

Thank you 42man. I will consider your suggested addition.

 

In the meantime, do I need to provide any copies of my application to the court, or send a copy to the claimant?

[42man]

If it is a stat demand then you only send the docs to the court (you need to send the original stat demand to the court) make sure you take a few copies of everything) You don't need to send anything to the claimant at this stage, and as you have probably already read then you don't need to send costs just yet.

[downsouth]

Waited until 1pm for post, nothing arrived from Lowells, so set off for the court.

 

They're only open 10-2 daily, so I'll have to go again on Monday, the 18th day.

[42man]

That shouldn't be a problem...

[downsouth]

All handed into court after being carefully checked by the clerk, who took my tel. no. in case the judge has any questions (!)

 

Nowt in post still from lovely Lowells.

 

Reading still more threads on this DCA's purchased debt recovery method, I'll also be raising a complaint with the OFT, for sure.

[downsouth]

Hearing date set 22nd of this month - that's unusually quick isn't it?

 

I better get working on my costs...

[downsouth]

Off to court today, will report back later.

[gerson]

Good luck and don't forget to ask for costs when you win

 

G

[downsouth]

Thank you. My costs are in court and I'm 50/50 on a win or adjournment to allow them to get paperwork together. If the latter I will express my dissatisfaction at that outcome.

[downsouth]

Adjourned.

 

Petitioner has 28 days to respond to my CCA request, I have a further 28 days to respond to whatever they find from their 'archived files'.

 

Judge took the view that using the Insolvency route was not an abuse of process, that they did not need to have their evidence to hand before embarking on issuing a SD, but that using the Insolvency route was risky for them as, should they lose, they will have to pay my costs.

 

ETA she also said because my witness statement was "much longer and more detailed than I'm used to seeing", today's 15mins automatically allocated wouldn't have been enough so will allocate an hour to the next hearing.

[42man]

Slightly disappointing....did you ever send a SAR to Cap 1 ? or even aCCA request too ?

[downsouth]

I did send an SAR to Cap1 on the 19th Oct. Just checking Royal Mail tracking, it is 'still in their delivery system'. I wonder if this is because the address supplied to my by Cap1 on the 'phone was a PO Box No?

 

Looks like I'll have to get another letter and tenner off to a proper address then.

 

 

CCA request went to Lowells also on 19 Oct and I have the delivery receipt.

Edited November 22, 2012 by downsouth

[downsouth]

Still no CCA docs from Lowells. I'm getting more LBA's from them with regards to another old debt they've purchased. Barclaycard this time, again about £3k. I take it there's nothing stopping them issuing me another SD (that's what they're threatening). I'm thinking of firing off another CCA request, together with a 'disputed debt, no debt acknowledged' letter about this other debt, before they serve an SD this time.

 

I don't know what Barc docs they've got of course. They have offered a 50% discount in settlement, I've half a mind to WP offer this, in full and final settlement of "all claims for money owed to Lowells", wonder if they'd fall for that?

 

Any thoughts?

[42man]

Make sure you do send off the CCA requests and do be prepared to fight a stat demand if need be....they will not have ANY documents from the original creditor...that's why a SAR to the original creditor is a good move, it could be £10 well spent.

[downsouth]

Order on Application to set aside, dated 22/11 ...

1. The respondent do file and serve a statement in response to the application within 28 days.

2. The Applicant do file and serve any response within 42 days.

3. The matter be re-listed for hearing 18 Jan

4. Costs in the application

 

 

Just had a 2nd class letter arrive from bwlegal for Lowells containing a copy of my signed CapOne agreement dated Jul 04. There are no prescribed terms on the actual copy page I signed, but attached to that an undated letter addressed to me from CapOne, and attached to that some T&C's. This undated letter and T&Cs are clearly reconstitued and bear no date or signature.

 

Apart from that, no copy statements, no copy default notice and no notice of assignment.

 

I guess I have to wait until they send me a copy of their statement to the court - assuming they will do?

[42man]

You should have a read of this thread too - http://www.consumeractiongroup.co.uk/forum/showthread.php?291945-Phoenix-Recoveries-vs-D-Kotecha-Court-of-Appeal

[42man]

Any chance the alleged debt may be statute barred ?

[42man]

It is vital that you check the interest rate on the statements too...

[downsouth]

Don't think statute barred. 2008 iirc, of course without any statements or default notice, it's difficult to say. As is checking of interest rates!

[downsouth]

Received my Christmas pressie from Lowells. Copy of their court submission: Witness statement, some copies of letters sent to me, same copy credit agreement with attached reconstituted terms, no default notice, no assignment, no statements.

 

I've got to put forward my response to this; I assume I'm going to have to re-jig my original Application text for this purpose. Am I correct in thinking that without the necessary documents under CCA, a) the debt is unenforceable and, b) without any statements I can't check amount claimed, interest charged, the amount of any unlawful penalty charges applied to the account. Also of course, the thing is still trialable, massively in dispute, and therefore the SD must be set aside.

 

 

Any help appreciated

[42man]

Is the agreement signed (how old ?) ? does it contain the prescribed terms ? is it fully legible ? and with regards to the interest rate if you look at Kotecha vs Phoenix high court case....

[downsouth]

Hi 42man, agreement is legible, signed, from 2004, but contains none of the prescribed terms. Terms, interest rates etc are on a reconstituted and separate page with no sig or reference number, different fonts, looks totally different to the single agreement page with my sig on. Can scan and upload if it'll help?