BW/Lowell SD for old BC 'debt'

[42man]

Relax.....it seems from what you say that they are still in default of your original request.

[42man]

You might like to know a little bit about Kotecha vs Phoenix too - http://www.consumeractiongroup.co.uk/forum/showthread.php?291945-Phoenix-Recoveries-vs-D-Kotecha-Court-of-Appeal

[citizenB]

Costs - do you have a rough idea of how much time you have spent dealing with the stat demand ?

 

The time is costed at £18.00 per hour - which is the current Litigant in person rate.

 

You can claim around 11 - 15 p per sheet of paper for any letters you have sent since you received the demand / plus all the paper involved in copying documents for you the court and the opposition.

 

If you are driving to the court you will need to make a note of your mileage - I dont know what the current mileage rate is.

 

You will also need to take into account any parking fees.

 

If you are using public transport keep your tickets.

[42man]

Here is a good link to costs - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

[yourturntopay]

I'm just concerned that the judge does consider the CCA reason enough to set aside and how to convince him that it is. I've done a lot of reading about set aside and it seems some judges don't like CCA and consider them to be debt advoiders and refuse to accept the defence or are more pro the other side and day they have met the CCA obligations when it's obvious they haven't

[42man]

Whether or not judges like them, the High Court cases you have should be adhered to by a lower court, there are a lot of cases where the money was owed it just wasn't enforceable, the fact that you have 'triable' issues should be enough for a reasonable judge to set aside....bearing in mind there are the issues of compliant default notice, PPI, charges, does the agreement itself comply with the Consumer Credit Act ?

[42man]

If for any reason you feel it isn't going your way then ask for an 'unless' order.....i.e unless they provide the default notice, deed of assignment, termination notice, full statements, showing interest, etc then the judge throw it out, it might prolong the process slightly but it means that (and a big if) they provide the relevant (and compliant) paperwork, at least you can get a full picture.

[yourturntopay]

I haven't got a clue about the agreement - they have never supplied one - not even a blank one. I've always thought it really strange that they dodn't even try and palm me off with a blak one and says that meets their obligation but they haven't tried. all they keep ding is sending me non dated Terms ans Conditions, the most recent T&C's they sent i think referred to 2008 as the fee amounts had changed to £12 and I know when i took the card out the charges were a lot higher than that.

 

I think I might just have stumble on another potential problem - I think claimed back charges and interest for the acount but this is in 2006/2007. I got a default judgement as they didn't bother to defend and I went for a summary judgement. The claim was about £400, but i honestly can't remember is it was this acount or not and for some idiotic reason i can't find the paperwork for

 

I never claimed PPI, but can't remember if there was any, they possibly could have been in the early days but i wouldn't have claimed these back as at the time PPI wasn't really known about. Could this come back and bite me in ourt today?

 

What do I do if they supply al the required paperwork at court today?

 

could this cause a problem?

[42man]

If on the unlikely chance they do, then you could possibly ask for an adjournment to review what they have sent.....I wouldn't even go down mentioning the CCJ route especially so as you aren't sure.

[citizenB]

In theory, they should not be permitted to ambush you with paperwork on the day.

[42man]

You have enough to constitute a significant dispute.....make sure you ask for your costs.

[yourturntopay]

Ok I've read the suggested thread of Kotecha vs Phoenix and i'm confused (probably as i'm getting into a panic the closer it gets and I have to leave in half hour.

 

In a nutshell i'm stating to the judge that the set aside sould be granted because they have not complied with the S78 as i have never received a coy of the credit agreement, and therefore its enforceability is in question in whether it meets the prescribed terms of enforceeability (i'm trying to emember what the prescribed terms are - i know it has to contain the credit limit and interest rate, but i can't remember the other required terms)

 

I am really scared about all of this now and am really concerned i'm going to screw it up and end up with a bankruptcy notice against me

 

Neithrt have I received a default notice or NOA

[citizenB]

These are all triable issues and the company should not have issued a Stat demand, but dealt with it through the county court.

[yourturntopay]

I am so sorry for being such a numpty but in what conteft should i mention kotecha v phoenix and how to bring this to the judges attention in my favour?

 

Should i say that the appeal case of kotecha v phoenix demonstrates that the CCA should be met in order for the debt to be enforceable. As the CCA hs never been complied with and as a credit agreement for this debt has never been supplied it is not possible to confirm the debt is enforceable and compliant with the CCA

[42man]

Yes for sure....it also demonstrates that the original in its full glory would be needed....

[citizenB]

YTP, what was the outcome ?

[yourturntopay]

The solicitor for BW/Lowells wanted an adjournment for 28 days and then a further 28 days for my response and then a hearing day a month later. I refused point blank and so off to the judge we went to battle it out.

 

The Judge was seriously ticked off that BW/Lowells were "not in a position to defend the application to day due to lack of paperwork" (solictor's exact phrase) She asked why they had not contacted the court to ask for extra time and asked me if i had been contacted prior to today to ask for extra time. I stated that I had not been advised or asked about an adjournment, that it was only brought to my attention upon my arrival at court today.

 

She asked me why I thought the case should be dismissed so i put forward the following arguments:

 

Barclarycard has had since 2009 to comply with the CCA request and have failed to do so despite numerous requests from me since January 2009 onwards. I stated that it is my belief that the documentation does not exist as it would have been presented to me by BC when I first requested it

 

That the Stat demand was heavy handed and unneccesary and other options should have been explored before envoking insolvency procedures. I stated i felt the stat demand should be set aside and when the Lowells obtain the required documentation they can file for CCJ and we can go head to head in a more appropriate forum than heading straight for insolvency procedures.

 

That I suffer from a comination of rare and complex medication conditions and the stress of the stat demand and having to apply for it to be set aside was negatively affecting and impacting upon my health and that I wanted and needed this to be resolved as quickly as possible. The judge asked me if I had any proof, so i showed her my card advising that that I have a sacaral neuromodulation stimulator wired to nerves my spine that send signals to my brain and bladder. I also informed her that i take a slow release form of morphine twice a day and extra morphine when the pain is severe. i advised the judge that since being issued with the stat demand i have become very stressed because of it and had to increase the level and dosage of morphine that I take. The judge seemed to accept this, but I think it might be worth having a word with somebody in my medical team and see if they could do a letter confirming that stress is a trigger and can cause a flare in my condition that usually results the above mentioned way or me ending up in hospital.

 

The judge asked me if I was denying whether I owed the money. i stated that without seeing the requested CCA information then I couldn't answer that as i am questioning the enforceability of the debt and have been since 2009. The Judge then stated that i have rasied a lot of complex issues re CCA S78 in my witness statement and stated she was not aware of some of the points being raised. The judge then asked me if I had the rulings for the Harrison and Link that evidences the points raised in my witness statement. Sadly I hadn't even thought of bringing the rulings with me (i feel really dumb about that now, but I thought the other points would have had enough strength to get the stat demand dismissed)

 

The judge suggested that at the next hearing i bring the following rulings with me and am able to evidence the argument i am making.

 

The judge agreed that the stat demand is heavy handed espcially as they don't have the papwerwork to back it up. The solicitor claimed that they only knew about the set aside application on 7 Jan 2013 and therefore had not sufficent time to gather the required information. I then informed the judge that i have a letter sent by BW legal on 12 december stating they are now aware of the dispute and had stated in the letter they had requested the required info from Lowells who may need to go back to BC for the paperwork. Solicitor said that she had not been made aware of this letter, so i kindly offered to show her the letter - swhich resulted in a glare from the solicitor towards me and the judge was not impressed and it didn't go down to well that the judge was trying to be misled!

 

The judge stated that she was going to allow an adjournment but not the length/amount the solicitor was requesting. The judge gave the solicitor instructions that the required paperwork needed to be filed with the court within the next 21 days. She said then she would allow me another 21 days to file a response if i so wished to, but was not obiligated to and she gave us a return hearing date of 29 March. She then warned that she would not entertain any further requests for another adjournment at the next hearing.

 

The judge then advised me to evidence my argument and bring to court the rulings mentioned and be able to demonstrate the part of the ruling that supported the points raised in my WS - The judge specifically mentioned Harrison and Link and also Hammond.

 

Then the fun started the judge mentioned costs and at first the solicitor thought it was costs in their favour, but the judge was very quick to point out the Lowells have wasted both the court and my time by not having the required paperwork ready and that they should have notified the court and myself sooner and asked for an adjournment.

 

The judge asked me what costs i had experienced by attending today. i stated that i had to take the day off work and that i have occured travel expense of getting to the court. I also mentioned about the time I had spent researching stat demands and set aside applications and also photocoping.

 

The judge stated that the most she could allow was a witness fee of £90 per day and my travel expenses - which resulted in a costs awarded order against Lowell of £102. She said the other costs could be claimed at the next hearing (I'm trying not to read too much into that remark, but i can't help but think the judge is expected Lowells to fail to produce the required info - if they do then i'll stick a costs order in anyhow!!!)

 

The solicitor was really narked at this and mentioned that I had ignored all Lowells letters and a cost order against Lowells/BW was unfair and unjust. the jugde squashed this one before i had time to speak out by saying they had started the ball rolling with issuing a stat demand and that i was obligated to defend such an action. They weren't ready and have wasted my time and the court's time today so it was only fair i was recompensated for these costs occured.

 

I then addressed the judge and voiced my concerns that the required and requested paperwork did not exist as BC would have sent it to me in 2009 when i was repeatedly requesting the information. I stated that if Lowells now have ownership of the debt so wouldn't all the paperwork have been given to them then and if they hadn't got it then it didn't exist!! The judge stated that I have a very vaild point and would able to argue this at the next hearing if we were in the same position as today.

 

Solicitor then piped uo with how unfair a costs order was but the judge was really getting ticked off at this point and told the solicitor to inform Lowells that they had to pay the cost order to me by 15 February and they need to file the required info by the 21 February.

 

The judge then indicated that the hearing was now adjourned and for both parties to follow the courts instructions given.

 

I spoke with the solicitor afterwards and said that neither of us got what we wanted and how much longer were BW/Lowells going to drag out this out for as the paperwork doesn't exisit as if it did it would have been produced by now. I asked why didn't they just withdrawn the applciation and go down a CCJ route, which was far more and appropriate course of action. I warned the solicitor that if BW/Lowells intend to keep pushing further forwards with this stat demand then i would go for their throats and i would hit lowells for every single penny i possibly could and that the judge seemed sympathic to my cause and very obliging to award costs in my favour. Solicitor repied that she was a rented solicitior and that the decision lies with Lowell/BW and i should speak with Lowells/BW about getting a conclusion sorted. I declined and said I'll wait to see what happens next and keep logging the hours and every expense down no matter how small.

 

So that's pretty much it. Costs were a big bonus and i think its sent a warning sign to Lowells that this is going to cost them if they want to keep going. Personally i think they will enter a withdrawal of stat demand at the last possible moment but they will make me sweat first.

 

Ok - i'm open to all suggestions/advice/support and sharing of knowledge and experience

[Guest]

hi

well done for standing up to them. seems j has been extra fair in giving them another chance, but at least you got some costs, and an order that they produce the required docs.

if they do end up saying that they will withdraw/not continue, you must then check with the court that they have then vacated the hearing. otherwise it will prob still go ahead?

Edited February 2, 2013 by Ford

[citizenB]

Bliddy hell - well done you.

 

I would hope that the Solicitor will put in their report and that Lowells will now ask you to discontinue / withdraw your application. This is up to you ! You must ensure that they dont even attempt to say they will take the money off the debt ! At this moment it has not been established there is one.

 

You should feel really proud of yourself.

 

I agree, that it would be a good idea to obtain a letter from your medical advisors, JIC there is a further hearing.

 

I will round up the Harrison v Link Judgment for you and post it on your thread so you have it to hand, again JIC.

[citizenB]

Here you go - this will need to be printed off for your bundle next time

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

[Guest]

citb

its their demand, so wouldn't it be for them to withdraw/discontinue and then vacate?

[citizenB]

citb

its their demand, so wouldn't it be for them to withdraw/discontinue and then vacate?

 

Hmm, good question.

 

Does the OP have to withdraw their application or

Lowells withdraw their demand

 

I think that might need answering by someone who knows.. I rather suspect that it is not me

[martin g]

Hello,

 

In answer to the above, once is in the insolvency court system the only way to conclude the process is by a consent order which has a court filing fee of £40 (in 2010, probably more now).

In principle the consent order could be filed by either party, it is after all a mutual agreement to terminate the proceedings, provided of course that both parties sign the order.

It may be worth drafting an order and sending it Lowell stating that as they are on a loser they may as well back down now as incur further costs.

 

Martin g

[42man]

Link here to Kotecha vs Phoenix - http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2011/105.html&query=phoenix+and+kotecha&method=boolean

 

and Patricia Jones vs Link Financial - http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html

[dx100uk]

as I see you are back

what was the end result?