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Statutory Demand from Bwlegal (lowell) over 6 yr old debt


toffy
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it was so long ago cant recall the payment.

but i know there would of deffo been along period of not paying, thats why we thought it was over the 6 yrs, as dont recall making this one, but as i say long time ago.And i don't hold any accounts that i would of had at that time, to check payment, only way is if they tell me how it was paid then would know if had that method.

 

Really not convinced that payment is genuine, was going to phone lowell tomoz and get then to send me proof of payments made. As this is the only way i can tell if genuine or not

I thought all credit companies would hold the same info, so no have only got experian.

is there any where else defaults would be logged as i am sure capital one would of set a default before 2008.

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I think the case is that you can't propose to settle this debt because you are not entirely sure whether it is statute barred and if not, what the debt comprises of. So I think your to-do list would look something like this:

 

1. Immediately write to lowells to (a) send them a CCA request with the £1 statutory fee and (b) ask them to detail all the dates and amounts of each transaction and charge that makes up the debt. Tell them that because they have issued a statutory demand, you need this information within seven days and if they cannot comply in time, they should withdraw their statutory demand. Its probably not worth speaking to them on the phone, because whatever they say you can't later rely on as evidence.

 

2. Send a subject access request under the Data Protection Act to Cap One, demanding a copy of all your statements. Include the £10 fee. They have 40 days to comply.

 

3. Neither Lowells nor CapOne will respond in time, which gives you your reason to request that the statutory demand is set-aside. Your reason is that you believe the debt is statute barred and have sought evidence of this from the creditor, who has failed to help. In any case, you dispute the entire debt because the creditor has been obstructive (as above) in providing any information that would allow you to consider your lawful position.

 

FFP

My Background: I am not legally trained so the advice I offer is as a result of my experiences in business and being dragged through a bankruptcy process by a leading London law firm over a debt that turned out to be false. I won as a litigant in person :-)

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oh and..

 

4. check the other credit agencies as they don't all hold the same data.

:-)

My Background: I am not legally trained so the advice I offer is as a result of my experiences in business and being dragged through a bankruptcy process by a leading London law firm over a debt that turned out to be false. I won as a litigant in person :-)

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  • 2 weeks later...

Still really confused at what to do, any know time is running out.

 

I know you said send a letter to get info on debt,payments etc. but we phoned bw legal and requested it, who send they will get it from lowell. But surprise surprise will still have not received it.

We did phone again and they said still waiting for it. Also telephoned lowells who said we had to speak to bw legal, but they also confirmed that the information has been requested.

So we thought yes they are getting it. But now 2 weeks since getting sd and time running out fast.

 

We have read so many of your cases that our heads are spinning and so confused on what to do, as they main reason is we are not 100% that it is statute barred, we thought it was until they said we made a payment in 2007. which we don't recall doing, but cant prove it. as we no longer hold the bank account we had in 2007 if thats how payment was made, also no credit cards at that time so payment was not made that way, only other way was postal order. and as so long ago who knows.

 

Also we do have other debts and are worried that they are agoing to come out of the woodwork, yes i know that they are our debts but circumstances have forced them.

We do believe those are also statute barred, but who knows what they can do.

 

We have come to conclusion we have these options:

 

1. Pay the debt to below the £750 limit so that they cant bankrupt us (as that is the scary thought)

but then can they keep putting charges on to get it back up again ?

And then does this stop the statutory demand?

 

2. Put in to set aside, but we unsure as to which way this will go and scared of then getting there charges and debt becoming bigger, and as we haven't requested the info by letter and instead did it verbally.

 

3. Agree to make a payment plan monthly payments,on this debt to finally get rid of it and start to get our credit back and stop the harassing calls and letters.

even thou, we then think this will open the flood gates to all the others out there.

 

But i feel to get rid of all these would be a huge relief, but financially hard, but worth it in the long run. Then i am unsure as to what they would except as a payment plan, and if i did offer this am i then acknowledged the debt and this can still proceed to bankruptcy.

 

Please help with what to do.

Thanks again

 

Also i need to clarify this question:

If this debt was statued barred, by making payment to the account does this now make it to not being statute barred anymore ?

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Your problem is that you don't know whether you made this payment in October 2007 or not. If you have not sent CapOne an SAR, you should do so and ask them to action urgently.

 

On the basis that you have been told by a CapOne manager of a payment within the last 6 years, you can't really do the set aside on the basis of the debt being statute barred. Also at this stage, you don't appear to have any other reasons that you could really use in any set aside hearing. Did you ever submit a CCA request that was not complied with ? Any complaints about charges added to the account ?

 

If you bring the debt below £750, they should not suddenly add amounts to bring it into bankruptcy territory again. So you would have avoided bankruptcy. Also if you entered into a repayment arrangement at an affordable rate, they should agree not to proceed with bankruptcy. This would give you some breathing space, during which you could send CapOne an SAR to see if you definitely made this payment in October 2007.

 

In your position, if I did not have reasons I could put down in a set aside, I would see if I could agree repayments with BW Legal at an affordable rate. If this was agreed, I would still investigate with CapOne about this October 07 payment and about charges, so I could challenge.

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Hello,

 

My advice remains the same as I posted on the 28th January. Basically, I don't think you should be paying a debt, or admitting a debt by making a part payment, if you think there is a chance that the debt is statute barred, or if you are not 100% sure of what the debt comprises of. For all you know, perhaps the majority of the debt is payment protection insurance, which should now be credited etc.

 

You need to assure yourself that the debt is genuine and you have tried to do this by asking by telephone for account information. As expected, they have refused to provide it because it is not in their interests to do so. By ignoring your request, they are hoping that you will run out of time to have the SD set aside in which case, either you will crumble and pay them money that might not be due, or they can file for your bankruptcy.

 

The only way you can force them to provide account information is by sending a subject access request under the data protection act. They cannot ignore this as the law requires them to provide the account information, which will include statements and amounts, within 40 days.

 

Clearly this is too late for the 18 day SD set-aside limit. But that is exactly the point. A bankruptcy court is not in a position to decide if a debt that is disputed on genuine grounds is or is not valid. So upon you disputing the debt on genuine grounds, there is no choice for the court other than to set aside the demand and award you costs.

 

Your genuine grounds for the dispute are that you believe the debt to be statute barred and the creditor has refused to provide any written evidence to the contrary. Neither have you been given any information as to what the debt comprises of and therefore you cannot consider whether or not a debt exists until this information has been provided. You have tried to get this information, but with the creditor being obstructive you now have to resort to the Data Protection Act to receive the account information. It is therefore entirely inappropriate for the creditor to pursue a bankruptcy until the debt is substantiated.

 

As long as the paragraph above is true and the creditor can not show that you have already been given the account information, send that SAR and apply for the SD to be set-aside.

 

 

FFP

My Background: I am not legally trained so the advice I offer is as a result of my experiences in business and being dragged through a bankruptcy process by a leading London law firm over a debt that turned out to be false. I won as a litigant in person :-)

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Thank you so much for your advice

 

If we do go down the route of set aside, (which we keep saying we should) the more we discuss it and read the win cases.

 

I am unsure as to what i exactly put on the 6.5 form. So if you could help with the writing of this, i think i would feel better in doing the set aside, as i see on others they seem to quote alot of ACT??? section ?? etc.

 

I have also put this letter ready to go to both lowell and Bw Legal plus £1 each to get the info

 

Your company has contacted me in respect of the above account which you claim is owed by myself.

It is my understanding that under the Limitation Act 1980 Section 5

"an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued".

I would also point out that the OFT say under their Debt Collection Guidance on statute barred debt that

"it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".

The last correspondence/payment/acknowledgement or payment/Payment Method of this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against me/us to recover the alleged amount claimed.

The OFT Debt Collection Guidance states further that

"continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970".

I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.

I look forward to your reply.

Yours faithfully

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I think your letter needn't go into the detail that you think the debt is statute barred. You could simply say that you have been provided with no information about what the debt is and now demand that information. Mention that you have asked several times and your requests have been ignored, as then this letter reads well in court :-)

 

Don't get confused between a CCA request (£1) and a SAR request (£10). The subject access request should be sent to the original creditor (cap one) as it is they who can provide you with all the statements related to the account, so you can see when the last payment was made and what transactions makes up the debt. A CCA request is a different thing and this can be sent to Lowells. This effectively forces them to show that they have their paper work in order. If they don't, they won't be successful in any court because they won't be able to prove their case.

 

It's worth sending both because either might provide you with a defence. Either the SAR will show the debt is statute barred or not (or show that the debt contains disputed sums), or the CCA request will expose that Lowells can't push the debt anyway.

 

FFP

My Background: I am not legally trained so the advice I offer is as a result of my experiences in business and being dragged through a bankruptcy process by a leading London law firm over a debt that turned out to be false. I won as a litigant in person :-)

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But you phoned CapOne and they told you of the payment in October 07. Ok they have not provided evidence of the payment details that were used. You can complete the court forms, but you have to sign to say that the information is true. From what I have read of this thread, you don't appear to have information that enables you to make the statement and back it up in any court hearing.

We could do with some help from you.

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But you phoned CapOne and they told you of the payment in October 07. Ok they have not provided evidence of the payment details that were used. You can complete the court forms, but you have to sign to say that the information is true. From what I have read of this thread, you don't appear to have information that enables you to make the statement and back it up in any court hearing.

 

I take your point, but my point is that it is reasonable for an alleged debtor to have written account information delivered to them so they can properly decide whether a debt is valid or not and take advice as to their position. Remember that CapOne is not the creditor as they sold the debt to Lowells. So it would still be true to say that the creditor (Lowells) have not provided any information to satisfy the query as to whether the debt is statute barred or how the debt is made up.

 

FFP

My Background: I am not legally trained so the advice I offer is as a result of my experiences in business and being dragged through a bankruptcy process by a leading London law firm over a debt that turned out to be false. I won as a litigant in person :-)

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Yes we did phone cap one and they said there is payment transaction on there in oct 2007, but is it from us, or could it be an interest payment ?

 

I do think we will go for set aside, under that they are not supplying us with the info of payments etc.

 

Also in the back of heads we still have that it did not show up on are old address on the experian only when we put in our new address, which makes us think this was statue barred and had dissappeared off file.

and they have made up payment info, because otherwise why didnt they just send proof, and it suddenly re appears just under the 6 yrs

It just doesnt seem right

 

Also if the set aside gets declined. do we get charged anything?

 

thanks

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No there is nothing to lose with the set aside in regard to costs. When you complete the court forms, you will just have to be vague, as has been said. Something like. To my certain knowledge, I have not made any repayments towards this account for well over 6 years and BWLegal/Lowell have not provided any proof to the contrary. I therefore aver that this debt is subject to section 5 of the statute of limitations act 1980 and I would request the court to agree to the set aside on this basis.

We could do with some help from you.

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There's a small risk with the costs. If your application to set aside is successful, then you will be awarded your costs so all good. If you are unsuccessful, it is normal for costs to be put "in the petition" which means that the creditor has in effect increased their claim to include their costs.

 

So the risk only comes up in the scenario where (a) your application is dismissed and (b) you are able to settle the debt. This is because the debt has now increased. If you can't settle the debt, then the costs don't make much difference because you can't be more bankrupt than just normally bankrupt! The costs can't be unreasonable, because there is a whole other tier of court just to deal with disputes about costs!

 

FFP

My Background: I am not legally trained so the advice I offer is as a result of my experiences in business and being dragged through a bankruptcy process by a leading London law firm over a debt that turned out to be false. I won as a litigant in person :-)

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If you feel that the amount claimed is definitely what you owe and you can afford to pay it, then yes you should pay it. If you are not sure if the amount claimed is correct then you shouldn't be bullied into paying it. The bankruptcy courts don't like being used as a baseball bat to threaten people into paying debts that they are not sure about. It is not what they are there for.

 

FFP

My Background: I am not legally trained so the advice I offer is as a result of my experiences in business and being dragged through a bankruptcy process by a leading London law firm over a debt that turned out to be false. I won as a litigant in person :-)

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Only you can decide what you are going to do toffy.

 

On the basis that the debt was statute barred, we advised that you either let Lowells via BW Legal know this and that they should withdraw.

 

You have said that Capone have told you a payment was made in 2007. You do not recall making the payment and believe you are the one that needs to prove a payment was made. That would be excellent news if you could.

 

Do you know when the account was transferred to Lowells ?

 

If around the time the payment was made, it could have been charges being returned to the account - it could have been another administrative sum put to the account.

 

You ask if the account was statute barred at the time this "payment" was made could that payment have unbarred it. No, it couldnt. However, unless you can say with some degree of accuracy when the the last payment was made prior to that then I fear unless you are strong enough to brave it out and demand that Capone/Lowells prove this payment then you are going nowhere with that argument.

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in general, bankruptcy is re an inability to pay. and can be compounded prior. (if def barred, no need to pay)

prob is that those such as lowells are seemingly using it as a collection tool, despite what the judge said recently against them in that other thread for eg. 'the judge said to them 'i see your client lowells in the bankruptcy courts quite often, you cant just issue stat demands as you see fit, agreements need to be in place before you do this' http://www.consumeractiongroup.co.uk/forum/showthread.php?372502-Statutory-Demand-From-BW-Legal-Lowells/page2

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