Barclaycard debt - SD From BW/Lowells - was set a side- now a Carter claimform threat

[sickoflowells]

Hi

 

I have been chased for a while for a debt for 2 barclaycard debts. A few days ago a chap knocked on my door and handed me a statutory demand.

 

I have sent off a CCA request by recorded delivery and am awaiting a response.

 

Would it be advisable to apply for it to be set aside if the CCA request is not received by the time the demands 18th day has passed?

 

BW Legal has assured me it wont go any further until the CCA request has been processed,

I do not have this in writing but have been told it on the phone.

 

I have tried to read up as much as I can but there is so much info on the site im now confused !

 

Thanks in advance.

 

Derek

[citizenB]

I will try and find someone to help you.. but yes, you should make an attempt to get this set aside.

 

Just a couple of questions..

 

Was this the first communication you have had with Lowells/Red/BW Legal ?

 

Had you previously made a request for the CCA from Barclaycard

 

Was there any default charges or mis sold PPI on the debt

 

Or indeed any other dispute that was unresolved prior to the assignment to Lowells

 

Had you been informed of the Assignment

 

Had there been a valid default notice issued by B/shark prior to the assignment.

 

You have 18 days from the date you were served with the SD to have it set aside.

[dx100uk]

stay off that phone too!!

 

never ever discuss your debts on the phone

 

dx

[sickoflowells]

hi

 

thanks for the prompt reply, here are my answers

 

 

 

Was this the first communication you have had with Lowells/Red/BW Legal ?

 

Bw first yes lowells have sent many letters

 

Had you previously made a request for the CCA from Barclaycard

 

No

 

Was there any default charges or mis sold ppi on the debt

 

No ppi not sure about default charges, i would have been charged late payments i guess, is this what you mean?

 

Or indeed any other dispute that was unresolved prior to the assignment to Lowells

No

 

Had you been informed of the Assignment

Im sure i was yes

 

Had there been a valid default notice issued by B/shark prior to the assignment.

Not 100% but im sure there was

 

You have 18 days from the date you were served with the SD to have it set aside.

 

Thanks, the date it was served was different from the actual date on the letter

[sickoflowells]

stay off that phone too!!

 

never ever discuss your debts on the phone

 

dx

 

noted thanks

[42man]

If it was me in your situation then I would certainly get it set aside, SAR to the original creditor might be a good move too. Any chance the alleged debts may be statute barred ?

[42man]

Have a read of this thread - http://www.consumeractiongroup.co.uk/forum/showthread.php?364992-Yet-another-Lowel-l-BW-LEGAL-%28Stat-Demand-Bankruptcy-order%29.-Help-please!&highlight=bwlegal

[sickoflowells]

Hi debts are from around 2007/8. Last payments in or around early 2009.

 

Getting it set aside, can I apply for that now, what can I use as a reason? Surely I would need to give them time for the cca request or is knowing I won't get it back in time a good enough reason ?

 

Many thanks

[42man]

There are a lot of reasons why you can set aside....did you take a look at the thread I pointed to in post #7

[sickoflowells]

Hi I will have a look in a bit I posted without realising u had posted the link thanks

 

There are a lot of reasons why you can set aside....did you take a look at the thread I pointed to in post #7

 

tonight i will send off the sar to barclaycard, i will also upload images of the documents. I will then ask you to check over my reasons why to set aside

 

is this ok? many thanks for your help

[42man]

CCA request is the number one priority......

[sickoflowells]

Hi I sent that the day after getting the stat demand

[citizenB]

Ok, can we please see a copy of the assignment from Lowells - remove ALL personal information, but leave the date of the letter and the date of the assignment in.

 

Do you have a copy of the Default Notice issued by the original creditor? If so, then please let us have a copy of that.

 

If you have an statements, then check to see if there are late/missed/default charges recorded.. especially preceeding the issue of the default notice.

[sickoflowells]

hi

 

ok i have checked what paperwork i have, recently i have been returning it to lowells un opened so cant say i have every single letter.

 

i have two accounts as metioned above that they are claiming for on the stat demand, two b/cards one for around 10k and one for 12k. one card was a standard and one a platinum that was transfered from another card called i24 which i think barclaycard purchased the company?

 

i can only find one default notice against one of the cards, which shows a balance and then an amount due, the balance being 12k and the amount due 600 !

 

with regards to charges, on the original barclaycard statements i have there are £12 charges left right and centre for bounced dd's and late payment charges and over limit charges. i also have interest charges for default amounts.

 

i dont seem to have any assignment or any other default notices, my matters where in a right mess at this point in time and im struggling to sort it all out now. this does not mean i was not sent one though.

 

if i am disclosing too much info please advise and i will edit i.e amounts or card types.

 

i will post more info as i dig it out. btw i sent of the sar this afternoon.

[42man]

Certainly if it was me in your situation then I would get it set aside, but bearing this in mind you need to consider whether you are going to stand up in court and fight your corner to, in some cases, differing judges....this thread is a good example - http://www.consumeractiongroup.co.uk/forum/showthread.php?372637-Lowell-Hamptons-Statutory-demand-and-threatening-Bankruptcy&highlight=lowell

[sickoflowells]

can anyone see the uploads i have made?

 

Edited November 25, 2012 by sickoflowells

[sickoflowells]

One letter is from hamptons offering a discount, these two letters were the first I had from them and didnt get any after this, these came in august.

 

Two other images show charges from the last statements I have. These are from march and april 2009.

 

the letter from mercers with the 600 demand is not for the full amount, but rather for missed payments.

 

i have checked and i do not have anywhere any notices where the debt was passed from mercers to lowells to hamptons. i also do not have any record of default notices.

 

I have sent as mentioned above a cca request and have heard nothing (2 weeks has passed). I have also sent a SAR.

 

I have printed off form 6.4 and 6.5 to apply to set aside as I have 4 days left to do so, can anyone suggest what reasons I can use.

Edited November 25, 2012 by sickoflowells

[42man]

Did you have a look at post #37 in the link above ?

[sickoflowells]

Did you have a look at post #37 in the link above ?

 

Hi yes I have thank you for your help, apart from the statute barred part it all applies, am I right in thinking this as the debt is less than 6 years old.

[citizenB]

Statute barred occurs when no payment or acknowledgement of liability has been made for 6 years.

[citizenB]

If they had made a part 7 claim.. issuing via the county court then that Default Notice would not stand up.

 

1: It needs to have been issued by BarclayCard themselves

2: It doesnt properly identify the breach

3: I doubt very much that it gives the statutory 14 days to remedy the breach - 17 March 2009 was a Wednesday, but Mercers only ever use 2nd class or UK mail. Although very likely only one or two days short but the 14 days is mandatory.

4: They dont even mention the statutory inclusion of the OFT sheet, so one assumes it definitely wasnt included.

 

Therefore there are triable issues and the Insolvency court is the wrong place to bring this claim.

 

I dont think they can charge interest on default sums unless they have sent the proper notice or for at least 30 days after.

[cj10]

Certainly if it was me in your situation then I would get it set aside, but bearing this in mind you need to consider whether you are going to stand up in court and fight your corner to, in some cases, differing judges....this thread is a good example - http://www.consumeractiongroup.co.uk/forum/showthread.php?372637-Lowell-Hamptons-Statutory-demand-and-threatening-Bankruptcy&highlight=lowell

 

Spot on advice

 

Given the difficulties Lowell seems to have in obtaining any supporting documentation from Barclaycard, the odds of BW Legal being to produce, at a set aside hearing, anything which satisfies S78, S65, or s86-88 of the CC Act is slim to say the least. If you have a reasoned, well constructed set aside witness statement and are comfortable summarising your position in front of a judge you stand a very good chance of setting the SD aside, and landing Lowells with costs.

 

I personally would not trust Lowells statement that they will not act on a SD whilst a s78 request is outstanding. This sounds like a tactic to delay a set aside request until it times out, ie past 18 days.

[sickoflowells]

Spot on advice

 

Given the difficulties Lowell seems to have in obtaining any supporting documentation from Barclaycard, the odds of BW Legal being to produce, at a set aside hearing, anything which satisfies S78, S65, or s86-88 of the CC Act is slim to say the least. If you have a reasoned, well constructed set aside witness statement and are comfortable summarising your position in front of a judge you stand a very good chance of setting the SD aside, and landing Lowells with costs.

 

I personally would not trust Lowells statement that they will not act on a SD whilst a s78 request is outstanding. This sounds like a tactic to delay a set aside request until it times out, ie past 18 days.

 

Thank you all so much for your help and advice, the bit im struggling with is filling out the form to set aside, lots of helpfull info and points on the other thread but the main point of it being statute barred does not apply to me.

 

I have also read that lack of response to CCA request is not enough alone?

[42man]

"I have also read that lack of response to CCA request is not enough alone"

 

It should be but it depends on how you get your points across and the judge on the day.....the piece below is a statute !

 

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;

 

Not only that but if you look at Kotecha vs Phoenix, they also have to produce the original signed agreement too

 

High Court decisions (and statutes) should be adhrered to by lower civil courts....

[42man]

You may find this useful too - http://www.consumeractiongroup.co.uk/forum/showthread.php?372637-Lowell-Hamptons-Statutory-demand-and-threatening-Bankruptcy/page2&highlight=lowells