Been paying Lowell ....mistake please help

[count12]

Hi, can someone please tell me where i stand.

 

I had a debt of around £1800 with barclay card. I done a sar,letter in dispute,

and have copies of letter postal receipt from back in 2010!

 

They sold debt to Lowell. (This is a breach of CCA isnt it?)

 

I have paid them £20 a month for about a year. Ive now stopped paying after

realising that the account is in dispute.

 

They say they are looking into the matter.....bull

 

I want to take them to court and claim back the money ive paid them.

 

Any suggestions

[unclebulgaria67]

Why was the account in dispute with BC ?

 

As for breach of rules, it depends on the reason for dispute.

 

Have BC actually sold the debt or just assigned it ? You would have to check on what basis Lowell have dealt with the account.

[count12]

Hi, thanks for your reply.

 

The account was in dispute because they only sent me some generic terms and conditions.

I have a letter(s) x2 saying the account was SOLD to Lowell from Barclay card. Both

letter arrived together and both say sold.

 

Thanks for your assistance.

[count12]

Hi, I also note that in the current CCA 1974 s78 (6) listing what the creditor is prohibited

from doing whilst the account is in dispute, its basically blank. Ive tried to follow the links

but fairs to much sense to me. http://www.legislation.gov.uk/ukpga/1974/39/section/78#commentary-c1990554.

Has this been amended? Where is the law (writing) for this? In the event that I do take

lowell to court, I want to literally take a printout of this section. (My friend got buffed off

buy court, say something like, "this is not my area of the law....you need to direct me to

the relevent part...etc) When my friend asked the legal if the contract was truely enforceable

he was taken back...! lol

[unclebulgaria67]

I think for a CCA request, as long as they send you some details, as to what was originally provided, that they would have complied with this. The account is only in dispute, if they send you nothing or something which is definitely not what was originally provided or is unreadable.

 

Think this was the McGuffick v RBS ruling ? If you google that case, you can do some reading about whether the CCA req info that BC sent you was sufficient, so there was no dispute.

 

You would be pretty silly taking Lowell to court, unless you had a Solicitor who specialises in this area advising you.

[count12]

Ok thanks for your reply. Problem is that there is conflicting advice on here. This the letter I sent (personal stuff removed).

 

--------------------------------------------------------------------------------------------------------------------------

30thth March 2010

 

ACCOUNT IN DISPUTE

 

Re account no

Dear Sir/Madam

I write regarding recent communication regarding the above account.

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On 5th October 2009, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only a generic agreement and terms & conditions, which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated terms and conditions. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

Contrary to your assertion, Barclaycard have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

 

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and Barclaycard remain in default are:

 

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

What is a true copy:

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

 

I am now granting to you a further 7 days to produce a copy of an executableagreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

Yours sincerely

------------------------------------------------------------------------------------------------------------------------------------------------------------------

What your are suggesting is something very different than what the above says....what a true agreement is?

 

Surely they have to send more than generic terms and conditions?

 

Thanks for your help

[unclebulgaria67]

I think some views have changed since, but hopefully some of the guys who know more about this, will reply later.

 

My understanding, is that it is now much more difficult to argue that this is really a dispute, which would merit you not repaying the debt. If you take this anywhere near a court, you will be in for a hiding.

 

If this debt is still more than £750, I suspect that Lowells would at some point threaten bankruptcy, particularly if they note that you have any assets such as a house.

[count12]

Ok thanks, they would do me a fav going for banruptcy, no house, no job, nothing but £55 a week. Save me

paying the bill. I think ill let them take me court, run up the bills, then bankrupt myself. I can afford the £550

so thats better than paying £1800 in my book. Get rid off the others twats as well.

 

Thanks for your help. The contract Lowell sent, after getting hold of the debt, is pretty unreadable, you would

need a magnifying glass.....seriously...but knowing that everything is set against the debtor...they will get around

it with a nod and a wink, masonic handshake....etc. That why some of the CCA missing now...bent barristers ?

Anyway thanks

[unclebulgaria67]

In your situation, if Lowell continue to hassle you for payment, you would probably be best just writing back to them, without admitting to the debt, just telling them of your financial situation and that you would not wish them to incur expenses in sending letters or phone calls, when it was not possible to progress matters. If they think they will get no return from you, then they may stop writing to you for a period and try again at some point, just in case your situation had changed.

[count12]

Thanks, that sounds like good advice. However the fact that I was paying them makes it

likely they will pursue. Its not that big a problem, I have had far worse thrown at me in

this life...lol What the hell is a court going to award them out of £55 a week?

[unclebulgaria67]

Thanks, that sounds like good advice. However the fact that I was paying them makes it

likely they will pursue. Its not that big a problem, I have had far worse thrown at me in

this life...lol What the hell is a court going to award them out of £55 a week?

 

They might get a pound or two a month. If Lowell are made aware of your situation, then they may also undertand why you stopped paying.