LOwell Statutory Demand old Egg debt

[Mabel30]

Hi I would really appreciate any help.

 

Worried sick & really stressed.

 

I've been served a Statutory demand from BW Legal instructed by Lowell Portfolio original creditor Egg, balance due £7,200.

 

The letter is dated 15/01 but hand posted on the 7/02.

 

I acknowledged the debt in Dec 08 & made x4 payments last payment April 10.

 

 

I buried my head in the sand & due to losing my job back then just stopped the payments,

the letters stopped until now.

 

Recently a joint home owner & finally getting my life together then this comes back to bite me.

 

I don't know what to do next.

 

Please help.

[ims21]

Thread moved to the Legal forum where the guys will be happy to help as soon as they are available.

[raydetinu]

first thing you must respond. do not ignore or judgement will go against you.

you need to come to some arrangement with the creditor to repay that willbe fair to you that that may accept.

if home owner they can put charge on house etc.

[dx100uk]

have you got all the EGG statements?

 

if not SAR barclaycard for then now by RD post

 

send lowlife a CCA request too.

 

lowlife are issuing SD's like confetti

 

90% of them are easily set aside as they have NO paperwork

 

as this is EGG they are going to have one hell of a job getting anything.

 

dx

[Mabel30]

I have one annual statement from egg 28/09/09 - 27/09/2010 but the loan was taken out may/2007 so not sure how many payments I have made to them, on this statement it says amount of credit £7829 & £2084 repayment protection insurance. Ill do like you said above request SAR & CCA. Shall i respond to BW legal i say im requesting this to be set aside? Not sure what grounds ive got.

 

Thanks for replying.

[dx100uk]

well theres one reason already PPI!!

 

i bet there are PENALTY charges too [£12 fees for everything?]

 

i suspect you main reason will be no paperwork.

 

i VERY much doubt theyy'll have a CCA.

 

type in lowell statutory demand

 

there are HEEPS of threads in this legal forum already upon what to do.

 

dx

[42man]

You have 18 days from the date it came into your possession to set aside.....

 

Have a read of this - http://www.consumeractiongroup.co.uk/forum/showthread.php?379550-Help-!!!!!-I-have-been-served-a-statutory-demand&highlight=bwlegal

[DonkeyB]

Jeez, not another one. If 1% of victims find their way here, that means they’re sending out hundreds of SDs. Crooks.

[Guest]

that means they’re sending out hundreds of SDs. Crooks.

 

despite being told off for doing so! is there no feed back from their lawyers at court to home!?

Edited February 12, 2013 by Ford

[DonkeyB]

Nope. Relies on complaints.

[Mabel30]

Just a bit more help please. Due to PPI on the original

loan not sure what the correct amount is outstanding,

SAT and CCA have been sent, this is what I'm using to set aside. would it be best to come to an arrangement with BW now or wait until I get paperwork back from them.

Thanks x

[dx100uk]

await

 

dx

[Mabel30]

Do I need to email/send letter to BW Legal advising I am planning to set aside? It says this on the SD. If you have a template of what to put would be greatly appricated.

Will need some help filling in forms to set aside taking them to court on Monday.

I can't thank you enough, these forums are amazing!! Sorry for all the questions just really nervous & feel a bit out of my depth.

 

Thank You

 

Feeling sick.......Argh...

[42man]

You can email them if you like.

 

Dear sirs

 

Ref no.

 

I am in receipt of your statutory demand which came into my posession on (date)

 

Due to the number of significant disputes It is my intention to set aside the demand in the (name of local county court) where I will be claiming my costs in the process. If you wish to avoid a costs order then I would suggest that you withdraw the demand immediately. If I do not hear anything within the next 3 days, then I will have no other option but to continue. I will also be asking for an unless order for full disclosure.

 

I trust this makes my position completely clear

[Mabel30]

Thanks for the above.

 

Ok so I have the forms 6.4 & 6.5 please could you give me some guidence on wording for my reasons to set aside.

When i go to court with my papers do i just take copies of the letters I have requested CCA & SAR along with proof of postage or is that for the hearing? Anything else i need to take/know?

Never been to court before.

Thanks.

[42man]

Bear with me Mabel.....what I would be doing in your position is spending some time reading around these forums, but I'll come back to you with some help.

[42man]

The defendant is disputing the alleged account

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act 1974 see attachment 1 (attachment 1will be your CCA request along with your proof of postage)

 

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;

 

The claimant refers to the authority of Jones vs Link Financial - [2012] EWHC 2402 (QB)

 

"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. "

 

"I agree with Professor Guest that this would apply to the statutory duties under ss.77, 78 (duty to give information to the debtor), ss.76, 87, 98 (duty to serve enforcement, default and termination notices), s.97 (duty to supply settlement figure), s.103 (duty to provide termination statement)"

 

"In my judgment the "duties" referred to in section 189 are therefore those statutory duties under the 1974 Act which the assignee has to perform in order to enforce his assigned rights. These duties have "passed by assignment" in the sense that it is by reason of the assignment that the assignee becomes obliged to fulfil them"

 

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 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 has failed to provide any statements for the duration of the agreement (as in Phoenix vs Kotecha)

 

The defendant also refers to

 

PHOENIX RECOVERIES (UK) LTD SARL v DEVENDRA KOTECHA (2011)

 

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Patten LJ) 26/1/2011

A creditor had failed to satisfy a debtor's request under the Consumer Credit Act 1974 s.78(1) for a copy of a credit card agreement as it had not, on the evidence, included the original, actual terms and conditions in respect of interest rates then in force. The creditor was, accordingly, not entitled to proceed to enforce the debt under s.78(6).

 

"Interest rates were a term of central importance in credit card agreements. There was a strong case that the interest charges which would have been specified in the terms and conditions when B and K made the agreement in 1998 were those in the leaflet and not those which appeared in P's evidence. Under s.78(1), a creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made. In those circumstances, P had not proved that that obligation was satisfied, and it was therefore not entitled to progress to enforce the debt against K under s.78(6)."

 

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 details of any potentially missold insurance that may have been added to the agreement.

 

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

 

It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which 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 Regulations 2008, and believes that the alleged creditor is in multiple 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,

 

Interpretation.—(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

 

Every member shall:

a conduct its business in compliance with all relevant legislation,

regulations, regulatory guidance and requirements and this Code of

Practice

 

v when an account is reasonably disputed or a complaint is received,

suspend collection activity and investigate and where applicable

refer the matter to their client

 

aa treat debtors fairly and not subject debtors (or their authorised

representatives) to aggressive practices, or conduct which is

deceitful, oppressive, unfair or improper, whether lawful or not

a) Conduct its business lawfully, comply with

all relevant UK legislation, regulation

and judicial decisions and trade fairly and

responsibly.

 

Office Of Fair Trading

 

3 UNFAIR OR IMPROPER BUSINESS PRACTICES

 

e. When seeking to recover a debt, failing to take appropriate steps with a view to ensuring that available data/information to inform the pursuit and recovery of a debt is accurate and adequate, such that the debtor and the (amount of the) debt can be correctly identified from that data/information

 

• a person being pursued for an incorrect amount.

 

f. failing to ensure that an accurate and adequate history of the debt is passed between parties, as appropriate and necessary

 

n. making undue, excessive or otherwise inappropriate use of statutory demands when pursuing arrears or debts

 

Comply with this Code of Practice and

follow any guidance notes issued by the

Board of the Association Published by the Office of Fair Trading

In light of the above evidence, the defendant gracefully requests the Judge dismisses the demand and orders the claimant to 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 collectionwhere 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 a bit and do your very best to understand exactly what is being said here.....

[Mabel30]

Ok so I take 3 copies to court of SD, Forms 6.4 & 6.5 proof of postage for SAR & CAA? A copy of the above for my reson to set aside (after tidy up).

Do I keep the originals or give those to the court?

Anything else? Like ID. Can't afford to mess this up as can't have another day off work.

 

Thanks.

[42man]

Originals go to court and take one extra set to court with you and keep one for the hearing. You won't need ID

[Mabel30]

Hi ive been having a good read through these forums & a bit confused as conflicting advice. My argument to SD as mis-sold PPI, I also have no paperwork. In another thread it says to offer £50 per month without any admission to the amount claimed & request to have the SD removed until PPI issue is sorted out. One of the above posts said i should wait for docments back from Lowells/egg. Im taking my forms to court on Monday & want the best possbile chance to get this set aside.

 

Any ideas?

[42man]

If it was me in your position I wouldn't be paying £50, you are setting aside the demand, due to a number of significant disputes, no agreement, potentially missold insurance, no statements for the duration of the account (to check the agreement matches with the interest rates) no compliant default notice etc etc... - Have you had a read in here ? - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

[42man]

If you pay £50 it will restart the statute barred clock for another 6 years....

[Mabel30]

Help filling in SD form please. I've completed 6.4 thanks to looking around the forum.

 

Just need help with 6.5 Witness Statement in support of Application

 

a, Insert name address & description of person making the statement ? Is this my name & address? What does description of person mean?

 

2 That i © Is this my name? Then do i just write please see attachment which will be a print out of what 42 man above thread along with copies of letters CCA req etc.

[Mabel30]

Handed in forms at court today, BW put the wrong court on the SD so 3 long bus journeys later now at the right court. Will get a letter in a few days.

 

If this goes to a hearing with them putting the wrong go with this go against them?

Thanks.