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Lowell/Hamptons Statutory demand *** Set a Side & Dismissed***


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No complaining about mis-selling of PPI is not acknowledging anything, other than you have paid for something that you did not want or was not relevant.

 

If successful with the PPI complaint, it would come off the debt amount.

 

The whole point of getting the last payment info and PPI complaint, was that the judge would see that there were issues, so bankruptcy was totally inappropriate. Creditors should be using normal court procedures to deal with debts and only use bankruptcy as a last resort.

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Can we use that as a defence then?

 

Because the first we had heard from Lowell was when they contacted us to say they wanted to deliver a SD.

 

It is not a last resort when as far as we were concerned all of our debts were in order.

 

Surely they should have gone down the CCJ route?

 

Hopefully we can get the final payment info and log the CCJ complaint tomorrow so will have something to show the judge.

 

With a bit of luck we may get some SAR info back in time as when they sent us the form back with no signature it was within a week.

 

Wishful thinking maybe...

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Can we use that as a defence then? Because the first we had heard from Lowell was when they contacted us to say they wanted to deliver a SD. It is not a last resort when as far as we were concerned all of our debts were in order. Surely they should have gone down the CCJ route? Hopefully we can get the final payment info and log the CCJ complaint tomorrow so will have something to show the judge. With a bit of luck we may get some SAR info back in time as when they sent us the form back with no signature it was within a week. Wishful thinking maybe...

 

Unfortunately no rule to prevent these companies going straight for bankruptcy. All the OFT have said is that if companies choose to issue SD's as a way of collecting debts, they must show that they are actually moving forward with bankruptcies. Lowells have made people bankrupt as evidenced by a numbers of posts to CAG.

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Unfortunately no rule to prevent these companies going straight for bankruptcy. All the OFT have said is that if companies choose to issue SD's as a way of collecting debts, they must show that they are actually moving forward with bankruptcies. Lowells have made people bankrupt as evidenced by a numbers of posts to CAG.

 

Should we fail to get the debt set aside then, will we still be in a position to negotiate before they apply for bankruptcy

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Should we fail to get the debt set aside then, will we still be in a position to negotiate before they apply for bankruptcy

 

Yes. But make sure the debt is not statute barred first and also get the PPI complaint going.

 

In the cases I have seen on CAG, Lowells have gong for the bankruptcy about 5/6 months after the SD was served.

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You could refer to OFT664 - Debt collection OFT guidance for businesses engaged in the recovery of consumer credit debts

3.7 Examples of unfair or improper practices are as follows:

i. pressurising debtors to pay more than they can reasonably afford32 without experiencing undue difficulty33

For example, by using the threat of enforcement action through the courts – including but not limited to applications for charging orders or to pay within an unreasonably short period

 

32 For example, pressurising a debtor to make unreasonably large repayments or to pay off his debts in full in a single (or very few) repayment(s), when to do so would have an adverse impact on the debtor's financial circumstances.

33 The OFT would regard 'without undue difficulty' in this context as meaning the debtor being able to make repayments while also meeting other debt repayments and other normal/reasonable outgoings and without having to borrow further to meet these repayments.

j. failing to allow for alternative, affordable, repayment amounts when a reasonable proposal is made by a debtor or a third party representative acting on his behalf (for example, a debt adviser)

 

t. taking steps to repossess the debtor's home, other than as a last resort.42

42 See footnote 41

41 For further information see (OFT1107) Irresponsible Lending – OFT guidance for creditors, paragraphs 7.9 and 7.14 and adjacent text boxes (see Annexe D for link to guidance document).

[OFT1107 7.14 states:

7.14 Taking steps to repossess the borrower's home, other than as a last resort.

The OFT would not expect a creditor to take disproportionate action against borrowers in respect of arrears or default. This would include such matters as applying to the court for an order for sale or for the borrower to be made bankrupt, without having explored other alternative, more proportionate options for recouping arrears]

 

I have included this in my defence and mentioned that more proportionate options would be to agree a proposed repayment plan or take action in a County Court and attempt to get a CCJ. Therefore the Claimant is in breach of the guidelines issued by the OFT that they agree to follow by holding a Consumer Credit Licence.

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Also note under the Insolvency Act 1986

 

271.— Proceedings on creditor's petition.

 

(3) The court may dismiss the petition if it is satisfied that the debtor is able to pay all his debts or

is satisfied—

(a) that the debtor has made an offer to secure or compound for a debt in respect of which the petition is presented,

(b) that the acceptance of that offer would have required the dismissal of the petition, and

© that the offer has been unreasonably refused;

and, in determining for the purposes of this subsection whether the debtor is able to pay all his

debts, the court shall take into account his contingent and prospective liabilities.

 

So if it turns out that it is not Statute Barred, you can make a reasonable offer to compound the debt or if all else fails offer a voluntary charge on your property to secure the debt and pay instalments (provided you have enough equity). You would need to take advice about the voluntary charge to ensure that they don't have the right to make you sell your home.

 

So if you fail to get the SD set aside, you may get the petition dismissed if you can make a reasonable offer of settlement even if the claimant refuses to accept it. This is possibly a last resort but may give you some peace of mind that even if you loose the first round, you can still possibly prevent being made bankrupt.

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Am I alone in thinking its time that this practice of issuing SD's for these type of debts was looked into. The impact and worry of having bankrupcy hanging over you by far out ways the size of alot of these debts. Also having to go to court and deal with all that...I remember a few years ago channel four did a programme about ruthbridge and their solicitors Mortimor Clarke.Very interesting viewing.. Is it not time that someone looked at this mis use of SD's for debt collection, because every day another post appears asking for help. The courts must be run off their feet with just Lowell alone!.

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I agree sillygirl1234, it is totally absurd that the OFT does nothing and lets these DCAs get away with what is an apparent breach of the guidelines set down by the OFT. In my case Lowells are trying to bankrupt me for a debt of less than £3,000. I read on the BBC news website that the OFT have had a go at RBS for seeking charging orders for debts of less than £5,000 but they do nothing about allowing DCAs trying to make people bankrupt for much less. http://www.bbc.co.uk/news/business-20984732

 

Its also time the bankruptcy limit was changed from £750 to a much more realistic amount.

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Bankrutpcy should surely be a "last option" but compnies like Lowells ans Connought etc are going straight for the jugular.

 

Surely for debts under £5000 a ccj would be surfice, as it is enforcable if you dont pay.

 

If there is anyone reading with any power either in tv land or other...please look at this situation.

 

Sorry to but in on your thread Bellisdaisy, hope you get on ok good luck.

 

off to email watchdog..........................................:|

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Right!! I' m due in court on Thursday and I now have a complaint logged with hbos for missold ppi. I am going to claim the debt is statute barred as the first i heard of this debt was when i received a card saying the lewis group were going to serve me with the sd. and I have requested all information hbos hold on me. I have no credit agreement with Lowells.

Thankyou for all the advice so far. In summary, this is what I've got to take with me on Thursday and I'd like to know if this information is likely to help in getting this debt set aside.

 

Thanks again

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It is not about whether Lowells have a credit agreement. It is whether they can produce a copy of the original credit agreement you had with the original creditor.

We could do with some help from you.

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It is not about whether Lowells have a credit agreement. It is whether they can produce a copy of the original credit agreement you had with the original creditor.

Ah right, ok then. In court on Thursday, do they need to provide a statement of account showing the latest payments to prove that it's not statute barred?

Thanks

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Ah right, ok then. In court on Thursday, do they need to provide a statement of account showing the latest payments to prove that it's not statute barred?

Thanks

 

If you have asked for this and this is the basis of the set aside, then yes they should provide the information to the court. Don't be surprised if they are allowed more time to provide it, as it would seem some judges will be helpful to creditors. Other threads suggest that Lowells don't often turn up with the information.

We could do with some help from you.

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Hi again,

We are just gathering all of our paperwork together for court tomorrow and my husband just spotted something.....The SD states quite clearly that the demand is for a debt for a credit card. The credit agreement they have supplied is for a loan. The account numbers are the same. Could this be relevant as part of our defence?

Thanks

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Repeating myself a bit here... but made a few notes to take to court to help prompt my hubby. This is what we have. We have all corresponding paperwork. Anybody out there have any opinion on this please? Thanks :)

 

12th November - Date on letter which was first contact regarding this matter. Letter from Lewis Investigation Services stating SD was to be issued

14th November - telephone call from Hamptons legal. Stated we've been served with SD. Threatening bankruptcy and trying to pressurise us into making payment over telephone for full amount immediately to avoid BR, then reduced to excess of £3k. When this was not possible, she insisted we should try to gather what we can to make payment and she would phone for this the next day. Credit agreement requested verbally as no account details had been released at this stage so no idea what debt SD was for.

15th November - CCA requested from Lowells together with any other documentation reqiured by the consumer credit act. Together with £1 payment. Sent recorded delivery.

19th November - CCA request delivered.

SAR request sent to HBOS - recorded delivery with £10 payment.

SD served by hand at 4.30pm - dated 29th October for CREDIT CARD debt

28th November - Letter from Hamptons acknowledging receipt of CCA request

3rd December - Application to set aside submitted to court

11th December credit agreement for LOAN received

12th December - letter received stating SD had been ignored etc

To date - Still awaiting statements etc from HBOS. Complaint for mis-sold PPI has been lodged with Ray Sato from HBOS on tel: 08457 253519

 

Defence

Believe debt is statute barred - no evidence provided to contrary

SD states debt is for credit card. Credit agreement (arrived outside of prescribed period of time from request) is for a loan.

PPI insurance on credit agreement - PPI complaint lodged with HBOS for mis-selling. Mis-sold insurance can bring the whole agreement into question

No statements of account provided. It is believed alleged debt could be made up of excess charges

No notice of assignement received. No copied provided by creditor

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didthat sar comeback?

 

hope it did and you've got evidence of ppi & PENATY charges?

 

bring those up even though it not the coreect cca? CC as apposed to a loan

 

good luck.

 

i bet they dont turn up.

 

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Thanks for the good luck wishes :)

Well, my hubby had his moment in court.

 

As expected from previous posts on other threads the other side did turn up

and approached my husband outside of the court before the hearing.

 

Although I had warned him they would do this he entered a room with the guy and listened to what he had to say.

 

All he said was that they had no information about the debt with them and they would be asking for more time to produce the information.

 

DH said the guy said it appeared that we may have a good case from he had seen.

 

In the court the judge was very impressed at the paperwork submitted to the court as defence (taken from here - thanks 42man)

and asked where we had the information come from.

 

Hubby didn't tell him - just said his wife had been doing a lot of research! He said it was very well put together.

 

The judge asked the other guy whether the debt company had the information we had requested (statements etc), the rep said he didn't know.

 

The judge granted them 28 days to produce all information requested in the application to set aside and said another court date would be arranged for 56 days time.

 

He warned the rep that SD's were a minefield but advised my hubby that common sense should prevail

and that the credit agreement shows that a debt is owed and suggested we reach an agreement with the debt agency

rather than pursue further court proceedings which could end up costing us more.

 

However the debt collectors rep also acknowledged that the account has some 'issues'. (Statute barred PPI etc.)

 

Any interpretations of this?

 

Any suggestions of how we should proceed?

 

Thanks so much to all involved for your help getting us this far :)

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I would sit back and relax....even if they come up with any kind of documentation, then as you have correctly said there are other issues, in fact don't let them detract from the statute barred issue and PPI.....can I please URGE you to report them to the OFT too....as they will not attempt any withdrawal.

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I think you should submit your costs and on odd occasions Lowell do provide the paperwork, but as you can see from other threads they have struggled to comply with court orders....there is a thread here you will find useful in compiling your costs - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

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