Lowell Statutory Demand Case Adjourned

[marshy1977]

I have now noticed why I made the mistake of mentioning that there is 5 debts and then put down 6 debts that is because there is two SDs in my possession one served on me in Jan 2013 and another in the court bundle dated Feb 2013. Could this mean that the SD is legally flawed.

[citizenB]

I have now noticed why I made the mistake of mentioning that there is 5 debts and then put down 6 debts that is because there is two SDs in my possession one served on me in Jan 2013 and another in the court bundle dated Feb 2013. Could this mean that the SD is legally flawed.

 

So they sent a Stat demand previously which was not followed through ?

[marshy1977]

The Jan 2013 SD is the one I applied for a set aside. The other one, I have only just seen it in the bundle they were ordered to serve it contains all other debts in the one going through the courts plus one more debt.

[citizenB]

Oh right, I understand now

[marshy1977]

The Jan 2013 has a discrepancy of 200 pounds, total amount claimed minus total of debts listed.

[marshy1977]

Hearing set for 05/06/2013

[marshy1977]

Dear all, Lowell have not sent me copies of Default Notices as ordered by the court, is the lack of DN a strong enough reason to have this SD set aside? Please help I have to file my defence by Tuesday next week.

[unclebulgaria67]

Dear all, Lowell have not sent me copies of Default Notices as ordered by the court, is the lack of DN a strong enough reason to have this SD set aside? Please help I have to file my defence by Tuesday next week.

 

I think you partly defend on not having sight of the DN's that the court asked the claimant to provide. They may try to just turn up with them on 5th June and if this happens you would have to ask for an adjournment, as an LIP cannot be expected to examine the DN's and make relevant arguments on the spot.

 

For a set aside of an SD, you just have to be successful in arguing that there are many issues that are best made in a normal county court case and that using insolvency as a way to collect a debt in the first instance is not appropriate. So perhaps there are other arguments you can make. Have a think about what issues you have with these debts and questions you still have ? Perhaps post up your thoughts on this and someone more knowledgeable will come along to see what you can put together as a defence.

[marshy1977]

Than you for your response Unclebulagaria67. The APR on the signed agreement is not the same as that mentioned in the statements.

[marshy1977]

One of the debts has absolutely no paperwork for it. Unless if they bring the paperwork to court I guess I can easily deafeat that particular debt.

[marshy1977]

Although I have signed the agreement of one of the debts, I did not fill-in the form, the staff at the store did it for me. The writing on the form is not mine. I was not given any terms and conditions and none have been provided with their bundle

[marshy1977]

They have provided copies of notices of assignment they allege to have sent to my address. I did not receive them. The DJ ordered them to provide proof of serving these Notices of assignment but they have up to now not done so.

[unclebulgaria67]

Than you for your response Unclebulagaria67. The APR on the signed agreement is not the same as that mentioned in the statements.

 

The APR on the original agreement must be the one that applied to you, but obviously the t&c's of the account would have enabled the APR to be subsequently varied.

[unclebulgaria67]

Although I have signed the agreement of one of the debts, I did not fill-in the form, the staff at the store did it for me. The writing on the form is not mine. I was not given any terms and conditions and none have been provided with their bundle

 

I am guessing that you were given a copy of the agreement and somewhere on the agreement, you have signed to say that you have received the t&c's that applied to the account. What does it state on the agreement that you signed about the t&c's that were applicable.

 

What I think you will have to do is make the point that the SD relates to a number of debts and that there are points of argument regarding some of these. See if you can write down what your points of argument against each debt. i.e

 

debt 1) ----- Loan account with XXX

A) APR on agreement provided does not match the APR shown on the first statement of account

B) There are many excess charges on the account

 

debt 2)

 

etc etc.

[marshy1977]

I was not given a copy of the agreement. The copy I signed states that 'The rest of the conditions can be found under "Further Conditions" on the reverse of your copy of the agreement'

[unclebulgaria67]

I was not given a copy of the agreement. The copy I signed states that 'The rest of the conditions can be found under "Further Conditions" on the reverse of your copy of the agreement'

 

So you could state that the t&c's were missing from the agreement and that the copy of the agreement provided also does not contain any t&c's. If you can be a bit patient, as there are others such who are much more knowledgeable about this. It would help, if you could post up a summary of the points you are wanting to raise against each debt, as suggested in my previous post. Otherwise it is a bit confusing.

[marshy1977]

Debt 1

 

The respondent alleges that a notice of assignment was served. This is disputed.The Applicant did not receive any letter of notice of assignment concerning this alleged debt. The Applicant invites the respondent to provide evidence of serving the letter of assignment as ordered by the court.

 

The Applicant has not been provided with a statement of account showing how the sums said to be payable have accrued.

 

Debt 2

 

I did not receive any letter of notice of assignment concerning this alleged debt. I invite the respondent to provide evidence for sending a registered letter to my address or in person. The Respondent alleges that some letters were sent to my address, I did not receive them. The respondent has now produced these letters after a court order but they have never been received at my home address.

 

The Applicant has not been provided with a statement of account showing how the sums said to be payable have accrued. The Applicant cannot even begin to consider what if any of the sums stated in the demand are payable, until the Respondent provides the aforesaid statements the Applicant is unable to consider any potential defence of set off that the Applicant may be able to raise.

 

Debt 3(I have admitted for this one)

 

The respondent alleges that a notice of assignment was served.

The respondent has failed to abide by the court order. The respondent has failed to provide a credit agreement or a default notice.

 

Debt 4

 

I did not receive any letter of notice of assignment concerning this alleged debt. I invite the respondent to provide evidence for sending a registered letter to my address or in person. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

Debt 5

 

The respondent has failed to comply with the court order of 02 April 2013 and Section 78 (1) of the Consumer Credit Act 1974.

 

There are numerous breaches of the Consumer Credit Act 1974 which require proper investigation. Details of the breaches are set out below. The applicant believes that the bankruptcy Court is not the appropriate place for such investigations to take place.

This credit agreement is not enforceable on the grounds that all of the prescribed terms within the meaning of the Consumer Credit Act 1974 were not contained in the document signed by the Applicant.

 

Consumer Credit Act 1974 provides as follows:

 

 

“(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner,”

 

I must stress that the document itself must contain ALL THE PRESCRIBED TERMS.

 

I refer to the judgement of Lord Justice Tuckey in Wilson & anr v Hurstanger Ltd [2007] EWCA Civ 299

 

It must be noted that the Terms and Conditions were never supplied either at the time of signing or sent to my home address. The Respondent has not provided signed Terms and Conditions with his bundle that is because they were never supplied at the time of application.

 

APR

 

The APR was varied without notice.

 

Consumer Credit Act 1974, section 78A

 

Duty to give information to debtor on change of rate of interest

(1)Where the rate of interest charged under a regulated consumer credit agreement, other than an excluded agreement, is to be varied, the creditor must inform the debtor in writing of the matters mentioned in subsection (3) before the variation can take effect.

 

 

Under section H of the Agreement the creditor is required to give notice reasonable notice of any changes to the agreement.

 

The respondent has not provided any evidence to show that a letter was served to notify a change in the APR. Variation of APR from 25.9% to 27.9% has no effect and makes the agreement unenforceable.

 

Default Notice

 

The creditor failed to provide a default notice as ordered by the court.

 

Consumer Credit Act 1974, Section 87

 

Need for default notice.

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

 

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 claimant’s case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974.

 

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

 

Debt 6

 

It must be noted that this alleged debt is not part of the statutory demand issued on 18 January 2013. Nevertheless, the Respondent has failed to comply with the court order to serve a notice of assignment by 30 April 2013. The Respondent has failed to supply any statements.

[rc14]

Marshy

 

I had the same problems with getting information from Lowell.

 

My initial hearing was on the 9 March 2012.

 

The bundle of documents were posted through my door hand delivered on the evening of 8 March 2012.

 

Six brown envelopes papers not in numerical order.

 

The courts had told me Lowells case had been taken off the list on 7 March 2012 because Lowell had not paid the court fee

and missed two deadlines for providing information under CPR.

 

However Lowell turned up persuaded the Judge they had not received directions and that they had paid their fee.

The Judge ignored my representations that the papers were served too late for me to read them and I lost the case.

 

I appealed and won,

but on this occasion Lowell emailed me the papers 20 minutes before the final deadline imposed by the Appeal Judge.

Lowell missed 6 deadlines in all and claimed it was because they had never received court papers.

 

I have still after DPA and CPR requests never seen the original agreement, any default notices, any genuine NOA's.

Lowells records indicate no NOA's were sent yet they have produced several different versions of the NOA when challenged.

 

I won my case because the Judge was troubled by the existence of two NOA's and he felt that the first Judge shoudl have established which of the two NOA's was genuine.

 

I had never received any and was never notified of any default and maintain both were falsified.

 

Lowell's Barister also tried to get an adjournment before the first case.

 

I dont think they expected me to turn up.

 

Lowell have a standard formular with courts cases.

 

You are welcome to read my threads on CAG.

I have now got a full refund from Lowell and the erroneous default removed.

Good luck

[I've got no money]

They have provided copies of notices of assignment they allege to have sent to my address. I did not receive them. The DJ ordered them to provide proof of serving these Notices of assignment but they have up to now not done so.

 

S136 Law of Property Act 1925 requires a notice in writing

S196 (4) provides that

Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

The term registered letter was subsequently amended to "recorded delivery"

 

If Lowells can't prove service of the NoA then they have no legal interest and your application to set aside must succeed

[rc14]

Hi word of caution on the LOP 1925 S136(1) and 196(4). I refered to both stating that Lowell could not prove sufficient service. The Judge in the first case beleived Lowell when they said 196(4) only applied to mortgages. The Circuit Judge at Appeal corrected Lowell's misunderstanding and confirmed this did apply. However, the Judge felt proof of standard postage applied meaning all Lowell needed to do was show proof they had posted a letter using standard postage. The Interpretation Act 1978 Section 7 (service by post) being rellevant. In this case Lowell would not have been able to prove even this as I have a screen print of their action log and there is nothing showing for any of the dates they claim to have sent the Notice of Assignment. However the Interpretation Act is slightly perverse in that it is for the alleged debtor to prove they did not receive the NOA. It may help if you can get a print out for the dates Lowell claim to have issued NOA's and Default Notices. Remember in absolute assignment they have a responsibility to provide this information even if held by the original creditor. Lowell are the Data Controller. Its worrying that two Judges had a different interpretation of sufficient service. Hope this helps.

Edited May 23, 2013 by rc14

[I've got no money]

Hi word of caution on the LOP 1925 S136(1) and 196(4). I refered to both stating that Lowell could not prove sufficient service. The Judge in the first case beleived Lowell when they said 196(4) only applied to mortgages. The Circuit Judge corrected Lowell's misunderstanding and confirmed this did apply. However, the Judge felt proof of standard postage applied meaning all Lowell needed to do was show proof they had posted a letter using standard postage. The Interpretation Act 1978 Section 7 being rellevant. In this case Lowell would not have been able to prove even this as I have a screen print of their action log and there is nothing showing for any of the dates they claim to have sent the Notice of Assignment. Its worrying that two Judges had a different interpretation of sufficient service. Hope this helps.

 

The statute seems to me to be clear - it clearly talks of registered letter - which I'd argue amounts to "contrary intention" in S7 - somewhere there is a provision that I'm trying to find that says that the term registered post now means recorded delivery - which I think helps you - if I can find it

[I've got no money]

Found it - that's been bugging me all night.

 

Have a look at Section 1 of the Recorded Delivery Service Act 1962 - it expressly provides that where registered post is stipulated by a statute that recorded delivery can be used instead - it is a clear "contrary intention" , as per S7 of the IA.

 

"Recorded delivery service to be an alternative to registered post.

(1)Any enactment which requires or authorises a document or other thing to be sent by registered post (whether or not it makes any other provision in relation thereto) shall have effect as if it required or, as the case may be, authorised that thing to be sent by registered post or the recorded delivery service; and any enactment which makes any other provision in relation to the sending of a document or other thing by registered post or to a thing so sent shall have effect as if it made the like provision in relation to the sending of that thing by the recorded delivery service or, as the case may be, to a thing sent by that service"

 

If the Judge rules against you need to appeal.

[marshy1977]

Thank you people I am getting more and more confident and I should be able to put together a robust defence. I am 100% certain that we did not receive a recorded NOA from Lowell or the original creditors.

[marshy1977]

rc14, how can I get a print out of of the dates Lowell claim to have posted the NOAs? Your help is greattly appreciated.

[marshy1977]

In the initial hearing the Judge ordered Lowell to produce proof of SERVICE of the alleged NOAs. Up to date they have not done so.