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

[42man]

You should sign the SAR, they may well return it.....

[42man]

Can you type up the particulars of the debt / claim on the demand ? but don't be too specific with the numbers / dates / personal info...

[Bellisdaisy]

The what sorry?!! Just what they have said on the SD? Sorry for being thick!

[42man]

On the demand it will say....something along the lines of - "The claim of the creditor is for payment of etc etc"

[Bellisdaisy]

Ok thanks. It says:

 

'The claim of the creditor is for the payment of £10k being the balance of monies due against a credit account made between the debtor and the Bank of Scotland PLC in respect of a credit card under account number XXXXXXXXXXXX, such agreement being regulated uinder the consumer credit act 1974.

The rights and benefits of the said account were duly assigned from the Bank of Scotland PLC to the creditor by way of a Debt Sale Agreement dated 29/6/07 and the notice of assignment having been served upon the debtor by the creditor on 10/07/07 in accordance with the provisions of Section136 of the Law Property Act 1925.

The balance of the debt at the date of the demand remains outstanding and due for payment by the debtor for the amount of £10k despite previous written and verbal requests for payment being made by the Creditor to the Debtor.'

 

I have rounded the total just to give you a rough ide of what is owed. It has just dawned on me that my husband has NEVER had a credit card with a £10k limit on it either!!! Majority of that figure is more than likely charges!!!

 

Thanks in advance of any advice

[42man]

May I ask....is it signed by Graeme Danby ?

[42man]

So you have sent the SAR, and the CCA request.....you need to set this aside within 18 days of the date you received it. You will need form 6.4 (set aside) and form 6.5 (witness statement)

 

Do you need some help with the defence ?

[42man]

You said the debt isn't on your credit file either which will help....as it may well be statute barred.

[Bellisdaisy]

Hiya,

It has been signed by a John Haywood.

I will need help with my defence please!!! I have read some of the other threads on here - there was one long one that was won this year I have been reading through and I was thinking of doing some copying and pasting from that thread and fitting it around mine if you know what I mean. Can I download the forms or do I need to get them from a courthouse?

Thanks again for your help - you have been great

[42man]

You can find the forms here - http://www.bis.gov.uk/insolvency/about-us/forms/england-and-wales

 

This is how to fill out form 6.4

 

How to fill in Form 6.4

 

For (a) fill in your name and address

 

The section that states attend before the Registrar leave blank. This will get filled in by the court.

 

For (b)

on the hearing of an application by (b) (insert your name)

 

An application for an order that the statutory demand dated (insert date on the SD that you received from (CREDITORS NAME) be set aside

 

For ©

The grounds on which the applicant claims to be entitled to the order are set out in the witness statement of the applicant sworn on (insert the date that you hand the forms into the court).

 

For (d)

The names and addresses of the persons upon whom this application should be served are:

(d) (insert name and address of CREDITOR/SOLICITOR)

 

For (e)

The applicant’s address for service is: (e) (insert your name and address)

Cross out where it states (Solicitor for the) and just leave the word Applicant and sign and date the form.

[42man]

Please do spend some time reading around these forums, and if you can give me a little while to compile something for the 6.5

[42man]

For your from 6.5

 

The defendant disputes the debt

 

The defendant avers that the alleged debt is statute barred

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act 1974 (attachment 1 (will be your CCA request also attach the recorded delivery slip (or a copy))

 

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 wishes to make known that the alleged creditor gains no relief from their duty under the Consumer Credit Act - I refer to -

Case No: U20120398

 

 

1. In my judgment the reason for the reference to "duties" in section 189 is that an assignee only becomes the "creditor" where the statutory duties relevant to the enforcement of the creditor's rights have passed to the assignee. This will not be the case where there has been an equitable assignment of which no notice has been given. In such a case the debtor will remain legally liable to the assignor and the assignor will remain responsible for the performance of the statutory duties relating to enforcement, such as duties to provide information and notices.
   
2. Where, however, there is a legal assignment the debtor's liability will be owed to the assignee and it is the assignee who will have to perform the statutory duties relating to enforcement. 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.
   
3. The legal assignee stands in the shoes of the assignor. The enforcement of the assignor's rights under the regulated credit agreement was subject to performance of the statutory duties laid down in the 1974 Act, and the legal assignee's rights are similarly so subject.
   

The defendant also claims that the lack of statements for the duration and any compliant agreement would be challenged as per [2011] EWCA Civ 105 Kotecha vs Phoenix

 

The claimant has failed to provide any copies of any valid default notices as required under the Consumer Credit Act.

 

The claimant has failed to provide any deeds or notices of assignment.

 

The claimant states - "notice of assignment having been served upon the debtor by the creditor on 10/07/07 in accordance with the provisions of Section136 of the Law Property Act 1925."

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

1 Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

5 - Consequently, I do not believe that any notice of assignment was properly served and therefore any assignment has not been perfected in law.

 

THE DEFAULT NOTICE

 

The Need for a Default notice

 

• Notwithstanding the above, it is also 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
  

The claimant has failed to provide any statements for the duration of the agreement including any excessive charges -

 

The claimant has failed to provide any details of any potentially missold insurance that may have been added to the agreement which in itself would bring the agreement entirely into question.

 

The defendant avers that some debts are made up entirely of charges and / or potentially missold personal protection insurance.

 

The amount detailed in the Claimant’s claim, is likely to include 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 the purported 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].

 

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 practices. 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 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

In light of the above evidence, the defendant gracefully requests the Judge orders the demand set aside and in light of the above pay my full costs + 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 collection where 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).

 

I believe the facts herewith in this form are true.

[42man]

You will need to tidy it up, number it and don't forget to sign and date it....please try and read what is being said and why,

[Bellisdaisy]

42man - you are a star! That is brilliant, really helpful THANKYOU!!

 

Sorry it has taken me so long to reply - I work shifts at the hospital so don't always get to a computer. I will get these letters printed today and they are ready to take to the court then once the 14 days are up for the CCA request. The SAR request came back as it hadn't been signed so that is going back today too. It is quite handy in a way as we now have an account number to attach to the letter which was on the SD.

 

We shall keep you informed of any developments.

 

Thankyou again

[Bellisdaisy]

All done. We will submit it to the court next Monday (3rd December) as that will have given the CCA 2 weeks to come back. I was just wondering how long these hearings take to come through. I am a bit worried as we are out of the country between 7th-11th January and that they might arrange the court hearing for that week. Can we notify them that we are unavailable on these dates when we submit our papers on the 3rd?

Thanks again

[42man]

Yes it would be a good idea to notify them of any dates that you would be out of the country....

[stroudsco]

Just a little comment - you will see my long thread and debates with lowells and hamptons for the last 7 years, I to didn't know anything about the debt that they were chasing, I had court and bankruptcy letters which were not followed up after I put in my defence.

 

That was back in May and they have gone quiet again, they are full of it.

 

Good luck and hope all goes well!

[Bellisdaisy]

Hi there,

A little bit of an update.Come home from work today to 2 letters - one from the court with a date for a hearing - 8th January whilst we are out of the country We told the court when we put the paperwork in that we will be out of the country between the 6th and 11th January and they wrote it down. Can't believe they have still organised the date for then!! OH phoned the court and they just advised that we need to write a letter asking for the judge to change the date and hope he agrees!!!

The other letter was a copy of the credit agreement which was signed by my OH dated 29th March 2004. The monthly payments that were outlined in the agreement do look familiar - I just can't remember when we last made a payment on the account - it would have been in 2006 or early 2007. Are we still likely to have a case? There does appear to be a PPI on there as there is a loan amount for £5k plus £2607.10 for 'GUS creditcare gold. There is also a £3900 charge for credit on there.

Obviously they have produced a credit agreement, but it has only arrived today - 11 days after the deadline for the request.

Thanks in advance for any advice

[Old Cogger]

Upload the CCA minus your personal details I am sure peeps will be able to advise on any issue with it?

[42man]

Make sure you write to the court (recorded delivery) requesting a change of date. It would be an incredibly harsh judge not to grant a change of date....You maintain the statute barred aspect, not only that but as there is PPI on the alleged debt then it brings the whole agreement into question....

[Bellisdaisy]

Hi there

 

Happy New Year! Hope you all had a good Christmas.

 

Well we managed to get the court date changed - the date is for this Thursday 15th January. We have been burying our heads in the sand a little on this over the festive period and our holiday but its back to reality now

 

Can I just clarify here that our line of defence is the following:

* We believe that the debt is statute barred (but can't actually remember the dates of any payments - if any it would have been 2006/07)

* We believe the debt has mis-sold PPI

* Original debt was not with lowell - no agreement entered into with them

 

Downsides to our case are that they have now produced a signed credit agreement - although it was 11 days late.

 

We also received a letter dated the 12th December - 9 days after we submitted our papers to the court - stating that we are at risk of being made bankrupt, not acknowledged the SD and would we like to make a reduced payment to settle the account. They offered us a 20% discount or we could pay £2k within 14 days followed by £100 per month until the debt is cleared. Is this relevant at all?

 

Any advice here would be very gratefully received

 

Thanks

[unclebulgaria67]

What enquiries have you made about the last date of payment and PPI ? I suspect that you will be asked.

[Bellisdaisy]

None :/

 

We sent a SAR request to the original creditor but it was returned to us as my husband forgot to sign it. He has not sent another one off he told me just now. I will get him to send that off tomorrow.

 

This is bad then....

[unclebulgaria67]

None :/

 

We sent a SAR request to the original creditor but it was returned to us as my husband forgot to sign it. He has not sent another one off he told me just now. I will get him to send that off tomorrow.

 

This is bad then....

 

You are asking for a set aside on basis of statute barred and PPI, but have not made the effort to make the enquires. I think you will struggle to get the set aside.

 

As the hearing is on Tuesday, I would suggest that you get on the phone tomorrow to the original creditors the debt was with, to find out the last date of payment. Also see if you can speak to the complaints department dealing with PPI and get a complaint registered. Do remember to take the full name of the person you speak to and record time/date. If can do this, then at least you have something to say to the judge and you might get the set aside.

 

If you don't get the set aside, you can still look at these issues and deal with Lowells as is necessary. It can be many months before they would go forward with a bankruptcy petition and if it were necessary for you to pay Lowells, you could enter into an arrangement with them to avoid bankruptcy.

[Bellisdaisy]

Ok thanks. It is actually the 17th he is in court which buys an extra couple of days but I will get him to make the call tomorrow.

Just one question though - if we log a complaint about the PPI does that not count as acknowledgement of the debt and would cancel out any statute barred chances?

By complaining about the PPI too - if it was successful would it just knock the PPI amount off the debt?

Thanks for your help.