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

[Guest]

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.

 

so, no official cc act response re cca request?

 

ok, so is re a different matter?

Edited December 22, 2012 by Ford

[catquest]

If there is no CCA reply then the debt cannot be enforced in court.

The agreement they send does not have to be a signed copy, but your name and address must be on it. It has to be a "true" copy ie relate to the actual card agreement you had and a copy of the original terms and conditions must be included.

[unclebulgaria67]

If there is no CCA reply then the debt cannot be enforced in court.

The agreement they send does not have to be a signed copy, but your name and address must be on it. It has to be a "true" copy ie relate to the actual card agreement you had and a copy of the original terms and conditions must be included.

 

Unfortunately according to a few posts on CAG, Judges have appeared to say that if a CCA request was not made prior to the statutory demand being issued, then the dispute/lack of CCA cannot be used to derail a bankruptcy petition. Perhaps the claimant creditor only has to evidence that the money is owed to them. I believe this is the case in England/Wales. In Scotland, the CCA always has to be presented.

[Northernpug]

There is an entry on the notes I received from Capital One that an S78 request received and a Recon Original Agreement, sig page and default agreement had been prepared and passed on to someone last week so it could be on its way. Original agreement was before 2007 so I believe a signed copy is required but they have included a signed copy of the original application (but not any terms and conditions) with the SAR request so they do have one

[Northernpug]

Unfortunately according to a few posts on CAG, Judges have appeared to say that if a CCA request was not made prior to the statutory demand being issued, then the dispute/lack of CCA cannot be used to derail a bankruptcy petition. Perhaps the claimant creditor only has to evidence that the money is owed to them. I believe this is the case in England/Wales. In Scotland, the CCA always has to be presented.

 

Not looking good is it! Only thing I seem to have left is non service of the Petition!

[Guest]

if still challenging, still mention no accurate cca request response. never know. bankruptcy is seen as a last resort and should not be awarded lightly. as said, it is re an inability to pay, which could be compounded if necessary/poss. as posted, if can show any prior disputes also then do then that would help. sd was 'hand delivered' so not much recourse there.?

Edited December 23, 2012 by Ford

[Guest]

could also try and argue time between sd and petition. whilst an sd is said not to expire, some solicitor sites suggest otherwise and that a petition should be presented within a certain period of time after an sd? in any case, the longer it is left, the less credibility it should have, particularly if there has been no attempts at resolution in the meantime.

Edited December 23, 2012 by Ford

[Northernpug]

I think I'll have to give it a rest for now as my head is spinning! Just been reading the Practice Direction: Insolvency Proceedings and it appears that only the debt(s) mentioned on the SD can be used in the petition.

 

Going to have some food, sleep on it and see how I feel tomorrow.

[Guest]

..it appears that only the debt(s) mentioned on the SD can be used in the petition.

 

Going to have some food, sleep on it and see how I feel tomorrow.

 

correct

 

good move

[catquest]

Unfortunately according to a few posts on CAG, Judges have appeared to say that if a CCA request was not made prior to the statutory demand being issued, then the dispute/lack of CCA cannot be used to derail a bankruptcy petition. Perhaps the claimant creditor only has to evidence that the money is owed to them. I believe this is the case in England/Wales. In Scotland, the CCA always has to be presented.

I assume this is based on the fact that a petition hearing by itself is not enforcement yet.

[Northernpug]

Can someone advise me who is supposed to send the "Letter of Assignment" and what information it has to contain?

 

I note I requested it in the SAR request so should Cap One have sent a copy?

 

The only reference I can find to passing the debt on is in the "Statement of Default" which says:

"We may place your account with, or sell your account to a debt collections agency, which may use door-to -door collectors or begin legal proceedings to recover all sums owed to us

 

Our nominated representative will contact you shortly"

 

Thanks

[catquest]

Yes you should have received a Notice of Assignment from CapOne . Contrary to popular opinion it does not have to be sent by recorded delivery. However it has to be accurate in its contents ( Harrison v Burke )

[oleg]

Yes you should have received a Notice of Assignment from CapOne . Contrary to popular opinion it does not have to be sent by recorded delivery. However it has to be accurate in its contents ( Harrison v Burke )

 

Untrue. Letter of assignment may come from either assignor or assignee. In practice only the buyer usually sends - often enclosing a letter they have made up themselves but pretending it's from the seller.

[Old Cogger]

Under E.U legislation can come from either.

[Northernpug]

Under section 136 of the Law Property Act 1925 (“LPA 1925”) notice of assignment must be given to the borrower expressly in writing.

 

Until proper notice is given, only an equitable assignment has taken place.

Section 136 LPA 1925 doesn't say how the notice is to be served but a default statutory provision is found under section 196 LPA 1925. It provides that if notice is given to the other party by registered letter and is not returned undelivered, it will have been deemed to have been served. This means that whilst notice may be given expressly in writing, it will not be deemed served unless it has been sent by registered post.

Section 196 LPA 1925 refers to “registered letter”. The postal service “registered post” no longer exists. Instead, a notice should now be sent either as first class post with a certificate of posting (available through Royal Mail) or by recorded delivery; under the Recorded Delivery Act 1962 any notice which is deemed served by registered post will also be deemed served if sent by recorded delivery.

 

Section 196 (5) also states that its provisions extend to notices required to be served unless a contrary intention appears i.e. it is mentioned in the terms and conditions how any notices necessary under the contract are to be served, that will take precedence over the statutory provision in section 196 but I don't know this as I haven't got a copy of the terms and conditions.

 

I can't recall receiving a NOA from Lowells and it would have probably been an idea to ask for a copy together with proof of posting at the time of sending the CCA request. Also not having a copy means I cannot check the validity of the document if it was sent. Although not a total defence in itself, is it worth mentioning in the defence? I appreciate one can be issued at any time and at best can delay proceeding until one is produced.

Edited December 24, 2012 by Northernpug

[Northernpug]

Tried to phone court this morning to see if there was any mention about service of the Petition but put on hold and gave up waiting after 20 minutes.

[Northernpug]

Helps to have a break and then come back to this! Just noticed that the SAR request asked for "The original signed, executed credit agreement/s and any terms and conditions that applied to the account/s at the time of default and at the time the account was opened".

 

I received a copy of the signed application where the small print is unreadable but no terms and conditions. Think I know where I am going with this now. Will make my best stab at a defence. Reading up a bit more, the claimant has to prove that I have no reasonable prospect of paying the debt off in a reasonable time in order for the Petition to be granted. In view of the amount involved, I should be able to prove this is not so if the worst comes to the worst so feeling a bit more confident.

 

I am sufficiently psyched up to try and put across that in my opinion Lowells are nothing but a bunch of unreasonable intimidating bullies!

[Northernpug]

Sorry, a further question - is the same information to be provided in the form 6.19 and Affidavit or are just the reasons to be put on the form 6.19 and then expanded in the Affidavit with case histories etc.

 

Thanks.

[Guest]

re compounding, lateness etc i mentioned earlier,

 

note section 271 etc Insolvency Act 1986

 

also, re statement of proof form 6.13A required by petitioning creditor note f on the form; (f) If petition is based upon a statutory demand, and more than 4 months have elapsed between service of the demand and presentation of the petition, give reason(s) for delay and explanation of circumstances which have contributed to the late presentation of the petition

 

6.17A, 18A re certificates of petition service (or substituted) required by the creditor petitioner. note they can claim substituted service.

 

 

Edited December 25, 2012 by Ford

[citizenB]

I had just gone off to have a look for that, Ford.. I was pretty certain that the petition has to be presented within 4 months..

[Guest]

I had just gone off to have a look for that, Ford.. I was pretty certain that the petition has to be presented within 4 months..

 

its odd, gov't info leaflet re sd's says no expiry. yet form etc mentions 4 months!

 

from f, seems though there is a discretion whether to allow or not if post 4 months depending on the circumstances?

Edited December 25, 2012 by Ford

[Northernpug]

By presented, does it mean filed with the court or served on the debtor? I have a feeling it means filed with the court, which in this case I believe happened in October when I received the N10 from Land registry:

 

Notice to Chief Land Registrar

6.13. [[FORM 6.14]] When the petition is filed, the court shall forthwith send to the Chief Land Registrar notice of the petition together with a request that it may be registered in the register of pending actions.

[Guest]

yes, presented would mean filed. you said sd was 'last june', and now petition?

as has been posted, substituted service of a petition if applicable could be acceptable re 'service' depending on the circumstances.

Edited December 25, 2012 by Ford

[42man]

Northernpug how are you getting on with this any sign of the petition yet ? What is the date of the hearing ? It may be a good idea for you and (your partner/wife/husband) to write a witness statement saying that nothing had been served and back it up with

 

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

 

Then r 6.15 says:

(1) Service of the petition should be proved by affidavit.

(2) The affidavit shall have exhibited to it -

(a) a sealed copy of the petition, and

(b) if substituted service has been ordered, a sealed copy of the order;

and it should be filed in court immediately after service.

 

'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 rules provide in terms that the petition must be supported by an affidavit of service showing how the petition was served, and express reference is made to substituted service and the way in which that then is to be proved, which involves the affidavit of service having with it a sealed copy of the order.' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

[Northernpug]

Hi 42man, hope you had a good Christmas. Still no petition and no reply to CCA request.

 

I phoned the court and they are aware that no petition has been served. There is no certificate of serving on the file. They told me to phone the day before to see if the hearing will still go ahead and if it does, just turn up anyway. If it hasn't been postponed to another date and I turn up on the day, provided the claimant hasn't withdrawn, I will probably get served with the petition when I arrived and unless I agree to have the hearing there and then. it will be postponed to another date after at least 14 days.

 

I have prepared a defence and witness statement and have been told to take them with me. As I haven't been served with anything yet, I just need to take them on the day and if the judge thinks there is merit to my defence he can order an adjournment to another date to give the claimant time to respond to my defence.

 

I am awaiting a call from an insolvency adviser at the moment who has been looking into a few things for me. She advised that if I visited the court now with a defence, I could be served with the petition when I take my defence in so best to stay away from the court until the day of the hearing. Getting served with it on the day is more likely to get an adjournment and give more time to work on the defence or sort something out with the claimant. It is less than 7 days to the hearing.