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BW/Lowell SD for old BC 'debt'

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I was served a statuory demand by BWlegal/Lowell on behalf of Barclaycard on 10 December 2012.

 

The debt is disputed about the CCA - which I have copies of the dispute.

 

I have a letter from BC acknowledging my dispute and they sent me a photocopy of their T&C but no agreement, nothing with my signature etc, so i disputed the debt again.

 

They sent it onto Cavells and they tried pushing for payment and I sent them a "in dispute so send back to BC letter" which they did and nothing further was heard from them until the stat demand came.

 

The stat demand put my local court as the court who is dealing with the stat demand. I rang the local court and they have no knowledge of this, but they did inform me that they are not the court in my area that deal with bankruptcy, so the wrong info was entered on the stat demand by BWlegal

 

I contacted BW and informed them of the dispute and immediately emailed copies of all requests to BC re CCA, their response - pages of T&C's but no agreement, not even a blank one and certainly nothing with my signature or account number on.

 

They responded with a letter stating they were asking Lowell for the CCA info to be sent to me and if Lowells didn't have it then they would contact the originial creditor so may take longer than the CCA time frame. Verbally they agreed to cease all action until the dispute was resolved, but they didn't confirm this part in writing (what a shocker!!) They told me all actiion would cease and i didn't need to do anything.

 

Needless to say i totally ignored their advice and phone my local bankrupcy court (which isn't that locall!!) to ask what i should do. The court they told me i had to fill in a couple forms with any evidence that the account was in dispute and send it back to them within 18 days of it being served

 

I completed the forms, included all the letters I have and signed the forms at home and posted it via special delivery. owever after speaking to somebody they told me that it won't count because i didn't take it to the court and sign it in front of them, so Bwlegal can make me bankrupt because i have failed to follow prcedure - is this true?

 

Here are the all the documents involved - as you can see from the court letter it says nothing about needing to be signed infront of the court staff.

 

I can't get to the bankrupcy court before the 18 days are up, so if the above is true about it having to be signed infront of court staff what can i do?

 

Can anybody advise me on what to do next and what is likely to happen? Is non compliance of CCA a good enough reason to stop this stat demand?

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Sorry, you shouldnt believe a word of this.

 

You should indeed get this set aside one of the reasons being that they provided the incorrect court.

 

You should find out which court nearest to you that does deal with insolvencies and get it set aside. You have 18 days in which to do this and yes, you do need to swear the affadavit in front of a court official so you will have to attend.

 

The court themselves will know nothing of this Stat Demand until such times as you present yourself. This is a cheap and nasty abuse of the court process in order to scare people into paying up. However, because of recent censures from the OFT.. they do indeed see these through to the bitter end unless you get it set aside.

 

The fact that there is a dispute in respect of non compliance of a s78 (CCA) request is one reason for this to be set aside. I will find some links for you to have a read through.

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Ah.. just reread your first post.. !! You must get to the court to sign those documents by the 28th !!

 

I will send S.O.S to those who are more knowledgeable about Stat Demands.


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You need to complete 3 copies of the 6.4 & 6.5 forms and take these to your nearest court that deals with insolvency, either tomorrow, Friday or on 27th Dec or 28th Dec. The courts are closed on the other days.

 

If you don't do this, then you are risking at some point the bankruptcy petition being served on you. An SD does not expire as such and the wrong info on the SD might not prevent them proceeding with bankrupty with a friendly judge, if you did not set aside.

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This is where it gets messy - I can't get to the court by 28th - and the letter from the court doesn't saying anything about needing to sign infront of them, i also phoned the court and spoke with the insolvasncy department manager and they also said the same thing - i don't need to sign anything in front of them and that they don't witness signings for set aside stat demands, so i am totally confused.

 

I know they received my documents today, so I guess the only thing i can do is call them again tomorrow and check again

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Yes see what the court staff say. I always thought that the signing of the affidavit had to be witnessed by court official, but there is nothing on the form to confirm this is required. If it were important, you would think it would state this.


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Well the letter from the court doesnt mention having to appear in person for the affadavit, so I guess it is going to be ok.. but do please check with the court.

 

The fact that there is a dispute over the production of a signed agreement is apparently a reason to have a set aside. Below has been taken from the National Debtline guide.

 

 

The debt is disputed and the court believes there are reasonable grounds for dispute. This might include where the creditor has waited too long to pursue the debt, or the debt is regulated under the Consumer Credit Act 1974 and there is no signed agreement.

• You may be able to argue that you can apply for a time order under the Consumer Credit Act 1974 instead.


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Opps forgot to post the set aside docs that i sent in!! This is a version of it - but it was on the correct forms.

Edited by yourturntopay

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It is extremely confusing to know what to do, especially when each court seems to give conflicting advice. I guess I can only go on what the court I have to go through sets as the rules. At least having the letter from the court makes it clear that attandance at court to sign the witness statement was not mentioned, so therefore i can only assume (and yes I know the saying assume = making an ass out of u and me) that its not a requirement by this court.

 

If it becomes an issue i guess i can mention the fact that i followed the advice issued by the court in the letter they sent.

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Looks fine to me :)

 

You need to start keeping a record of any costs you have had to pay out - the special delivery postage slip should be kept as proof of the posting - time dealing with the Stat demand should be charged off at £18.00 an hour LiP rate - research, reading and understanding the demand - dealing with the affadavit etc.


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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

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The postage was £6.95, but apart from that I haven't kept any other records. I've sent a 30 page document to the court, so i guess a reasonable amount per photocopy is 5 pence??

 

I have no idea in regards to time spent researching all of this - I have been pretty obbessive about it since the process server turned up unannounced last monday night (10 Decemeber) at 6pm with this little bundle of joy!!!

 

What is likely to happen next? I'm hoping the judge will dismiss the stat demand without ahearing, but i have a feeling I'm not going to be that lucky and will have to fight this one to the end.

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Yes I know I am becoming overly obbessive but I am freaking out about the affidavit swearing issue and the possibility that because i may have not done things properly and BW could use this to bankrupt me, so i've been trying to gather information that maybe helpful if I need to fight for the application to set aside to be accepted if the court won't accept it because they consider it to be incorrectly filed.

 

I have been searching the internet for any/all information i can find and learn regarding set aside applications and came accross the goverment website. The site mentions nothing about affidavithaving to be sworn in. It does say that the papers needed to present to the court, but doesn't say how this needs to be done. There is also a 6.5 updated form on the site which has a section for signing but doesn't mention it having to be witnessed by court staff.

 

https://www.gov.uk/statutory-demands/challenge-a-statutory-demand

 

Here is the link - perhaps the rules regarding set aside applications have/are changing?

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Just to clarify....for a stat demand you do not have to get your 6.5 (witness statement) sworn in (the rules have changed in the last 12 months), only when you are opposing a bankruptcy petition (the next stage after the stat demand) do you have to get an affadavit sworn either at a local solicitor or the court....you can send the documents in (recorded delivery).


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I think you should also mention PPI, and charges and if it isn't for any reason going your way you ask for a full portfolio of paperwork, statements, default notice, termination notice etc etc. and add as much case law to demonstrate that you have triable issues.


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

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I would say 3 - 4 hours dealing with the paperwork

Perhaps an equal amount researching Stat Demands and their implication

 

Time is costed @ £18.00 per hour

 

Printing/Paper cost @ 0.15 per sheet

 

What ever travel costs you have incurred - I am not sure what you can charge per mile if you use your own vehicle. But you can claim for parking fees as well.

 

I am sure others will also be able to chip in with some ideas.


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PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

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Ok my panic is over and I finally have the "does it need to besworn/not sworn issue" resolved (thanks 42man for your fab advice - whichas usually was spot on and 100% correct, and to citizen B for offering so muchvaluable and reassuring assistance and knowledgeable advice - you are both myxmas miracles - thank you xxx.

 

I have been a complete and utter twit and had all my court documentsreturned to me because I stupidly forgot to put a copy of the stat demand in mybundle (Yes I know I’m a walking disaster zone!!) Anyway the silver lining wasbecause I went into breakdown mode as I know there was not chance getting thesedocuments back to the court before the stat demand time expired, my boss let mehave a slightly longer lunch break (2 hours off), which was enough time to getto the bankruptcy court and back again (I think my next challenge maybe dealingwith speeding tickets!!)

 

Anyhow I took everything with me and I had a lovely chat with the courtmanager and explained how scared and nervous I was about all of this andwhether I was following the correct procedures. She told me that last yearthings changed and stat demands do not need to be sworn in and can be signedand set in via post. She said it wasn't well publicized about the change andthat she had to actually inform a judge who refused a stat demand set aside applicationbecause it hadn't been sworn in. She said that she printed off the change in procedureand sent the file back to the judge. He then dismissed the stat demand!!! Shehas made sure that all the judges are now aware of the update re signing.

 

According to the court manager the rules changed last year and the form hasbeen updated and actually now states it is a witness statement and it is onlyneeds to be signed and sent in - it does not require to be signed in front of acourt rep or solicitor.

 

Anyhow all my documents are now safely at the court and are in front of ajudge awaiting his decision and direction.

I should hear something after Xmas, so I guess I just now sit back and workon my argument on why the stat demand should be set aside if a hearing is held- the court manager says it’s 50/50 as to whether it would be dismissed withouta hearing. Usually if the judge has any queries or questions then a hearing isheld, but the judge has been known to set stat demands aside and offer otherrecommendations to the creditor- i.e. try negotiating with the client first orgoing via a CCJ route before jumping into a stat demand

 

She said that Lowell’s and BW Legal are very well known to the judge and themethods they employ and I’ve done the right thing my hitting them head on, assometimes they do follow through on the stat demands and other times they don't- it depends on what they think they will get out of it. She said she haslooked through my witness statement and said it was good that I had mentionedabout the dispute and could supply so much evidence of the dispute – especiallyas it goes back nearly 4 year and about the fact they had mentioned the wrongcourt.

 

She says they have used this court enough to know what the correct courtfor the area is and had no reason to put the wrong one on. I'm not sure if it’sa good thing or not - but I’m hoping the judge is going to view this as anabuse of power and failure to follow OFT debt collecting procedures.

 

I’m still going to need all the help \I can get, but at least I can enjoyxmas knowing nothing bad is going to happen in the immediate future and I havelots of options on how to fight back – and I’m in one hell of a battling mood –I’m not letting this rest and I’m going wipe the floor with BWlegal and Lowell’suntil I see the grimy grotty little faces begging for mercy in the floor’s reflection!!!

Edited by yourturntopay

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Oops.. well at least you have been able to bring CAG some information that will help others as well now.

 

What a pain that you had such a stressful day though.

 

It would appear that Lowells are issuing stat demands or threatening to, for sums below the Bankruptcy threshhold. I suspect they are a heading toward a showdown with the OFT if they continue with these.


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HERE

2: Take back control of your finances -

Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors?

Read Here

4: Staying Calm About Debt

Read Here

5: Forum rules - These have been updated -

Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

 

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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And believe me i'll be i the first one to stick the knife in!!! Once i've got a result from the judge about the stat demand and once it all gets resolved (in my favour - fingers crossed) i am keeping a chronology and will be submitting a detailed complaint to FOS, OFT, trading standards and anybdy anybody thinks I can send a complaint to!!

 

I'm not playing the sympathy card, but just incase it is important to my case and whether i should make the judge aware of this but I am actually seriously ill, i have 2 incureable (but mercifully not terminal) medical conditions (one uncommon, the other is very rare and only 200 people have it in the UK -Think i'm around number 180 lol!!!)) I undergo reqular treatment sessions in hospital and occassionally I am hospitalised due to the symptoms and/or pain or needing more intensive treatment that can't be done as an outpatient. I have an implant fitted in my spine and is connected to my nervous system to re write signals sent to my brain to help control my symptoms. I am on at least 400mg of morphine a day (but over the past few weeks this has been much higher as my symptoms have been out of control - stress can make thinngs worse, but that applied to any medical condition!!!) I also take a variety of other medications such as diazepam.

 

I refuse point blank to give in to these conditions and i am determined to remain at work full time, even though it can be a huge struggle and some days are so bad that all I can do is hobble around and cry - but i refuse to give in and claim benefits. I feel that going into work is doing something positive and i feel I am in control rather than my mediation conditions control me and this helps my mental and emotional state.

 

If things are bad I can take additional medication as i know there are people at work who look after me and can take me home if things get too bad, as I only live 5 minutes from work. I feel by working and refusing benefits i am being positive and not giving in and letting the medical conditions win - its my body and i WILL make it behave (Huge bot of denial i know and it would listen to me it would help!!!!) These last couple of weeks have been so hard and I've really struggled so much.

 

To have this stat demand hanging over my head and on top of everything else going on in my life has been really hard and has affected me physically and emotionally and I have been off sick with the norovirus, which i am sure I may have been able to fight off if I hadn't been so stressed and terrified about the stat demand and its consequences, I had nothing in the resources reserve bank to hit back with :(.

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Have we mentioned sending a Subject Access Request to the original creditor ? If not, you might want to invest £10.00 and send one. This entitles you to all the data they hold on you in respect of your financial relationship with them.

 

You would specifically require statements, communication log - but it should actually include everything.

 

This will identify if the account was defaulted, terminated and assigned correctly.. it will also show any default charges. The communciation log should show all actions taken on the account.


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1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy -

HERE

2: Take back control of your finances -

Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors?

Read Here

4: Staying Calm About Debt

Read Here

5: Forum rules - These have been updated -

Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

 

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Thanks Ford - that's a extremely interesting and very helpful post and i will need to read the whole story at least a couple of times to see what points fit my situtuation and that i can use in my favour, but the post and your experience is so helpful, its extremely kind of you to stop by and offer me some assistance - thank you. I hope I get a judge that dismisses my stat demand and issues costs in my favour too!!!

 

BWLegal stated on the Stat Demand that my local court (lets call this court court T from this point on) was the court I needed to deal with in regards to the bankrupcy, but when i called them they said that my area has a specialist bankrupcy court, which is around 20 miles away. Lets call them court C from this point onwards)

 

The lady at the bankruptcy court said that they have a lot of dealings with BWLegal and Lowell, so BWLegal have enough experience to know that court C shoud have been listed on the stat demand, and i wil be pointing this out to the court at a hearing if I need to, as i feel it was deliberately misleading to esnure i missed the stat demand deadline.

 

It makes me wonder if they were totally serious about taking this further and will issue a bankruptcy petition but there was no way i was going to sit back and do nothing, my life motto is to face things head on and deal with them when they happen, that way the only thing holding me back is me.

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in that case posted, there was also the wrong court. and J considered that in decision re set aside.

their antics are out of order, and need to be reported.

Edited by Ford

IMO

:-):rant:

 

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Citizen B - I think you were reading my as i was considering asking about doing just that. I'mkinda thinking/writing ut loud here, but also welcome any thoughts/advice/suggestions.

 

First thought is who to send the SAR to. I'm uncertain whether I send the subject request to the original creditior (Barclaycard), or to Lowells (who apparently brought the allegded debt). I think there is little point in SAR BWLelgal as any info they have shoud be Lowells posession anyhow - well that's the theory!

 

I'm coming to the conclusion that the SAR should go to Lowells but can I ask them to include all information that Barclaycard and BWlegal holds on me? As Lowells apparently have brought the debt so all info BC have on me should be Lowell's possession? Does the fact that BWlegal are acting on Lowell's instruction mean that I can insisit they also send though all into (all verbal and written, plus anything else legal might have obtained about me - douments etc...)

 

Can I also ask that the SAR includes all and any transcripts for all verbal communication - i.e.telephone conversations held woth me and about me to be included in the SAR, as during my conversation with BWLegal they promised to put on hold all action until the dispute is resolved. but they didn't put this in heir letter - only that the CCA info I had requested has nit be sent and tbey will follow up on this and speak with Lowells and if required BC.

 

All thoughts/ideas/suggestion/etc are extremely welcome - thank you in advance for the help and advice and knowledge shared with me xxxxx

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yes, maybe best bet, sar the original creditor first. and yes can include any transcripts. there is a template in the cag library. edit to suit.


IMO

:-):rant:

 

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