Lowells/Hampton bankruptcy Petiion - ** PETITION DISMISSED **

[Northernpug]

I received a Statutory Demand last June for just under £3000 . I thought it was just another frightening tactic and stupidly ignored it.

 

It relates to a Capitol One credit card debt from at least 2007, maybe earlier. I do have other creditors too amounting to a total of around £20,000, all from around the same period. I lost my job in 2004 and ended up using credit cards to survive. Its taken a while but this year I have managed to pay all my priority debts off including mortgage arrears.

 

Just have these not priority debts to deal with! I did speak to a debt management Company after I received the SD and they told me not to worry as it was just probably only a threat as it would cost them more than the debt was worth to take it bankruptcy. They did send me a proposal for a debt management plan but I decided not to go ahead with it as they were wanting £150 a month (which isn't a problem ) out of which they would take the first two payments as an admin fee and charge £25 a month. I thought it a bit much taking money which could otherwise have been put towards paying the debts off.

 

I have now received a letter from Land Registry Bankruptcy Unit, Enquiry 10A, which implies that papers have been submitted to court for a Bankruptcy petition.

 

I have also spoken to National Debtline who weren't very helpful about the bankruptcy petition and didn't know what the enquiry B10a from land registry was. Postman has just delivered a package from National Debtline with loads of info that I'll have to have a read through!

 

I phoned the court and they said a hearing date had been set for early January next year. I haven't had any papers served to me as yet (thought the package from National Debtline might have been them as it was in a large brown envelope!).

 

At present i am working on a temp to perm basis, presently through an agency but have been giving a permanent start date of January 2013. I am also self employed but don't earn much through self employment as work reduced due to the recession. I have also lost out on self employment work due to switching the phone off because of the continued harassment from Hamptons (up to 20 calls a day) Average net income per month is around £1000.

 

I work long hours (leave home at 5am get home at 5.30pm) and live alone so not been home when the man from Hamptons has tried to visit. Also means that I permanently tired and makes dealing with these types of issues more difficult. There is around £100,000 equity in my home so I really don't want to go bankrupt. I am 51 yrs old and will be able to start taking money from my pension fund in 4 years (original plan was to pay the creditors off with cash from my pension but the age was changed from 50 to 55 before you can start drawing a pension which stuffed me on that one).

 

So not sure what to do now. I don't have any spare cash as it has all been used paying things off but was considering trying to get a loan to pay Hamptons off as its hassle I could just do without at the moment. At this stage would there be additional fees (court fees) on top of the original debt? Chances of getting a loan at a descent rate with my credit history are pretty remote I think though.

 

Is it worth trying to negotiate a payment plan with Hamptons at this stage? Although I can afford a reasonable monthly payment, my worry is that they will demand an unreasonable amount that I don't have at the moment and will affect my ability to formulate a debt management plan with my other creditors.

 

I haven't done a CCA or SARS request yet. Is it too late to do one?

 

Can I get the petition withdrawn at this stage?

 

Any suggestions for my best course of action?

[42man]

You will find this thread most interesting - http://www.consumeractiongroup.co.uk/forum/showthread.php?363531-Bankruptcy-notice-issued-by-lowell&highlight=bankruptcy

[Northernpug]

42man, many thanks for your reply. I have read through the thread you linked to and its slowly sinking in. I'll send a SAR to Capitol One and a CCA request to Lovells. The court told me the same thing i.e. that the paper work has to come from lovells.

Edited November 4, 2012 by Northernpug

[42man]

OK well providing you get a half decent judge you should still be able to oppose the petition, if it was me in your position I would send off a CCA request to Lowells and the original creditor, and a SAR to the original creditor. The reason I say this is that you have to be seen to be making more than a reasonable effort to gain information. As for your defence to the petition then you need to submit this at least 7 days before the hearing, sending one copy with all associated paperwork to the court and the petitioner. I certainly would be fighting it. You have some time and I presume you haven't been served with the petition as yet either. - form 6.19, with an accompanying affadavit. If by the time of the submission of the documents you still haven't seen the petition you will need to do a small witness statement saying so..get the CCA requests off first and the SAR at this stage.

[Northernpug]

Have sent CCA request to Lowells and a SAR to original Creditor. Just re read the post above and notice I should have sent a CCA request to original creditor too which I didn't do.

 

Received a letter to say someone would be visiting me to serve the petition but was home at the appointed time and no one turned up.

 

Just awaiting responses now. Should I still send a CCA request to the original creditor?

[Guest]

lowells should deal with cca request on to original creditor, if not they should return it to you. when did you send it?

[Northernpug]

Thank you for your reply Ford. Its been about a week since I sent the CCA request 1st Class recorded but track and trace is still saying that it is " being progressed through our network for delivery."

 

The SAR was sent at the same time and is also saying "progressing through our network" so not sure if it has been delivered or if the PO are slow to update the track and trace.

 

When does the 12+2 start? From the date I posted it or the date they sign for it?

[catquest]

I think it is deemed to have been served two working days after posting first class

 

Recorded delivery has no tracking facility ( unlike Special Delivery )

[Northernpug]

Thanks for that Catquest. I'll assume that they have got it then. Phone calls from Hamptons have stopped since I sent it. Will wait and see what turns up in the post. Must have been back in the 80's that I took the card out so hopefully they may have problems finding a copy of the agreement.

[Guest]

they prob have got it. royal mail recorded signed for is renown for not being updated accordingly on their site even though it has been delivered. (could complain to RM about that, they'll prob offer a book of stamps as goodwill!)

if haven't received any response back from lowells just now re cca request, then to be sure could do one direct to the creditor within time for your hearing.

[oleg]

Are you sure that the SD was served correctly in the first place? Did a process server hand-deliver it or attempt to do so before Lowells posting it?

Lowells are notorious for irregularities, trickery and subterfuge.

[Northernpug]

Hi and thanks for replies. Been nearly a week and no response but still time yet. The SD was hand delivered. Don't know if previous attempts were made to serve it as I'm not at home much.

[Northernpug]

12+2 days is now up and no sign of a CCA although Hamptons have confirmed that they have asked the original lender for it.

 

Should I now send an account in dispute letter?

 

I'm confused about where it says it has to be a copy of the original signed agreement before it can be enforced in court. I understand that they can provide a reconstructed copy to satisfy the request but what statute or precedent states that it has to be an original signed copy to be enforceable in court?

[Old Cogger]

under section 61 CCA1974 you could google it and read legislation on the said subject.?

[Northernpug]

Thank you for your reply Mike 770 and I have Googled as well as spent many hours reading through the forum. My understanding of the the CCA1974 is that a creditor can supply a reconstructed agreement. What I want to know is where does it say that a CCA has to be an original signed copy for it to be enforceable in court.

[42man]

If you look at Kotecha vs Phoenix you will find that useful....

[Northernpug]

Thanks, I was looking at some "OFT guidance notes" that were confusing me.

 

Position at the moment is I have received an acknowledgement from Hamptons following the CCA request saying they have forwarded it to the original lender. It is now over 12+2 days and nothing further received.

 

No reply from Capital One following SAR request.

 

No petition has been served. Was at home at a time the server said he would call to serve it and no one turned up.

 

Have received a letter from another DCA to say that as they have been unsuccessful in collecting anything, they are passing the case to Lowells which is a bit unnerving. Letter didn't state who the original creditor was so not sure who it was.

Edited December 18, 2012 by Northernpug

[Northernpug]

Will need to start working on a defence as hearing date is 2nd week of January and with the bank holidays, will need to get it submitted to court next week.

 

Still no copy of CCA received, no reply to SAR and no petition received.

 

If I am correct, it will not now be possible for them to serve the petition 14 days before the hearing as required by the Insolvency Rules 1986 rule 6.14(1) and rule 6.18(1) . If they send by post according to Civil Procedure Rules 1998 – Practice Direction on Insolvency Proceedings, paragraphs 11.5 , it will not be deemed to be served until 7 days after posting which will be less than 14 days before the hearing date.

 

 

Does this mean I can relax a bit as I have been getting a bit stressed about it?

 

In addition in my defence I will include no CCA and no reply to SAR (will post a copy of my draft when I've done it).

[Northernpug]

Have today received by courier a reply to my SAR request from Capitol One. Can't believe that they have included a copy of a letter from someone else totally unrelated including name, address telephone number and card number!

 

Information provided is:

 

screen shots which don't say much.

Copy of a default notice

Copy of Termination Notice

List of Debit/Payments (no copy statements)

A copy of the original signed application form which is not really readable.

 

There are no terms or conditions included.

 

Seems like my defence is now whittled down to non enforceable credit agreement, no assignment letter/deed and failure to serve the petition.

[Northernpug]

Please can somebody help me?

 

My defence so far:

 

Take not that I Northernpug 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 an enforceable copy of the agreement despite a legal request made under the Consumer Credit Act 1974 (attachment 1)

 

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)."

 

SERVICE OF THE PETITION

2) - 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 defendant 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

[Guest]

...... Can't believe that they have included a copy of a letter from someone else totally unrelated including name, address telephone number and card number!

 

..

 

complaint time. if poss/happy to do so, advise the third party of creditors breach of the data protection act so that they can complain to the creditor and Information Commissioners Office. third party should get compensation on demand from creditor. you too could complain to creditor and ICO (cred should then contact the third party accordingly, but sometimes they don't!). you might also get compensation from creditor. (ICO doesn't award compensation)

Edited December 22, 2012 by Ford

[Northernpug]

Thanks Ford, I had thought that myself but it is the least of my worries at the moment. I have a possible hearing shortly after Christmas for a Bankruptcy petition. If made bankrupt I stand to loose my house plus everything else that happens with bankruptcy. It is worrying me to death. I haven't done any Christmas Shopping yet and trying my darn hardest trying to put together what I need to do for a defence. At the moment, Christmas is a non event.

 

Appreciate others on here may be enjoying Christmas festivities but at the moment I don't feel like I can afford that luxury. I was up until 4am this morning putting together a defence which mostly got wiped out when the SAR arrived today. Beginning to feel like the easiest way out of this would be to go to sleep and not wake up again.

[Guest]

yes, complaint on that is a side issue to be dealt with later. was just posting on it.

try not to worry, you'll get help here re the petition. have you considered legal solicitor help?

also, if feel cant/don't want to oppose petition then could try to come to some arrangement prior. bankruptcy is re an inability to pay debts. if someone is paying realistically towards an accepted arrangement then no current inability?

also, if disputing then say so as you say ie non payment is not re any inability.

Edited December 22, 2012 by Ford

[Guest]

.........

Position at the moment is I have received an acknowledgement from Hamptons following the CCA request saying they have forwarded it to the original lender. It is now over 12+2 days and nothing further received.

 

.

 

still no reply? then is in cca request dispute. use their letter saying they are dealing with it as proof at hearing.

 

who is this other dca you mention?

[Northernpug]

No reply from Hamptons but a copy of the application form was included with the SAR.

 

The other DCA is BCW Group. Just had a look on Noodle and appears that Lowells purchased another Debt earlier this year but can't recall Lowells ever contacting me about it. It was a M&S Reserve account.