Help - Lowell Statutory Demand [LIttlewoods Cat debt & store card together] **SET ASIDE**

[nunkychunky]

Folks,

 

Court date just come through - 4th June at 3.30 pm. I suspect the hearing will be only 10 minutes or so.

 

Do I need to serve B W and (shortly before the hearing) ask them to withdraw the SD to save Court time and possibly costs against them?

 

NC

[Old Cogger]

Yes you're right - without being set aside the SD remains valid. If the CCA request is not answered, the debt is un-enforceable. When did you dispute the debt ?

 

 

your question/answer is here.

[nunkychunky]

Morning folks,

 

A bundle of stuff has come through from B W Legal with a copy of a constituted credit agreement and terms and conditions. The agreement does not contain my signature. They are also claiming my application under Section 78 CCA is misconceived and that I failed to pay the £1 fee (which is untrue). They are also seeking a costs order of over £800 against me.

[citizenB]

eh? How can your application under s78 be misconceived ?

 

Do you have proof that you sent the £1.00 fee ?

[nunkychunky]

Yes - it was sent by Recorded Delivery.

[nunkychunky]

Just thought I'd mention the reconstituted agreement contains no personal details, name, address, credit limit, reference number, interest rate, signature. All spaces for these details are blank - how on earth can they claim it is an accurate document? They could have just knocked it up on Word!!!!!!

 

I'll post a copy up as soon as I can.

Edited May 28, 2013 by nunkychunky

[42man]

You are absolutely right.....it could be anybody's, have you checked things like excessive charges match up to what might be on the statements ? does the interest rate correspond to what is on the statements ? You might be interested in this - http://www.consumeractiongroup.co.uk/forum/showthread.php?291945-Phoenix-Recoveries-vs-D-Kotecha-Court-of-Appeal

[nunkychunky]

Evening folks,

 

Having had the chance to properly sit down and go through the bundle in some more detail, there are a number of things that concern me.

 

The scenario is Lowells are after me for 2 debts,

an old catalogue debt for around £4000, taken out in/around 2004/5

plus a Barclaycard debt for £450. around 2009.

 

1) The credit agreement provided in relation to the catalogue cannot be anything like the original agreement.

I will post it up when I can get to the scanner tomorrow.

It is either a photocopy of some standard terms (or a document prepared on Word).

It looks more like a Word document since the date 24/05/10 plus a reference number appears at the bottom.

I took the catalogue out some 5/6 years before this document is dated.

 

2) My title, first name, surname and address DOES not appear

- hence it cannot be relied upon as a true copy (it could relate to anybody and appears to me to be a fabrication).

It does not comply with the judgment Carey v HSBC and also the OFT guidelines (both state MUST contain a name and address - even though a reconstituted copy is acceptable).

It appears to me, therefore, they are attempting to collect a debt that is unenforeable and issuing a SD amounts to nothing more than a fishing trip.

 

3) Lowells are saying my reliance on Section 78 is "misconceived" (why? - I have a right to request these documents)

and that my claim for unlawful penalties and interest is "speculative".

They are putting me to strict proof that I have been charged unlawful penalties and interest!

 

4) The majority of the bundle relates to copy letters they claim they have sent me.

I put them to strict proof these documents were received by me

- and they certainly do not appear be true copies of the originals

(someone at their end has just hit the print button and the letters were spewed out)

- as many of the letters contain fields that were not completed

- for example "> being registered against your property".

 

5) The credit card debt is below the de-minimis limit of £750 to issue an SD and a BKY petition and it is from a different creditor.

 

There is NO copy agreement, BUT very helpfully they have provided some copy statements showing late payment and over limit charges (the limit was some £250).

I contend that to combine two debts on the same SD is an abuse of process.

 

I shall be working on my second witness statement tonight (shouldn't take too long to get the ducks in a row).

 

NC

[BRIGADIER2JCS]

Have Lowell added any charges to the credit card debt to bring it over the threshold?

[nunkychunky]

Folks,

 

Job done....

 

Draft witness statement 2 below.

 

 

 

 

 

 

 

I, XX say as follows:

 

Introduction

 

This is my second witness statement in response to the witness statement of XX of B W Legal (Solicitors for the Creditor Lowell Portfolio 1 Limited).

 

For clarity, brevity, and to assist the Court I shall refer directly to the paragraphs of the witness statement dated May 2013 that I consider pertinent to this matter.

 

I should point out to the Court that the witness statement contains the words "In Bankruptcy". This is not correct as I am not the subject of a bankruptcy order.

 

I make this second witness statement for the hearing fixed on June 2013 at 15.30 in opposition of the Creditor's application that the Statutory Demand should not be set aside.

1. I have no comment to make further to paragraphs 1, 2, and 3 save for that I oppose the Creditor's application as stated above.
   
2. At paragraph 4, 4.1 and 4.2 the Creditor sets out the basis of the claim - the quantum of the debts are disputed in that in respect of the Shop Direct Financial Services ("Shop Direct") I consider that the credit agreement is unenforceable for reasons that appear later, and secondly in relation to the Barclays Bank trading as Barclaycard ("Barclaycard") the amount I dispute in that it contains penalties and charges that I intend to challenge.
   
3. In any event, I believe that under the circumstances it is iniquitous that a Statutory Demand has been served upon me, given that I consider the Shop Direct claim is unenforceable, and that the quantum of the Barclaycard claim is disputed. The Creditor has sought to combine two claims, from two different original creditors, on one Statutory Demand (one of the debts is below the statutory £750 limit as set out in the Insolvency Act 1986). I consider the actions of the Creditor are an abuse of the insolvency process, and that the insolvency court is not the appropriate forum to deal with this matter. I believe that the issue of a Statutory Demand in this instance is inappropriate and amounted to a "fishing trip".
   
4. In relation to paragraphs 5 and 6 where the issue of Notices of Assignment are considered, I should point out to the Court that at no time have I signed any agreement with Lowell Portfolio 1 Limited. The Creditor is put to strict proof that I did.
   
5. At paragraphs 7, 7.1 and 8 reference is made to the series of letters (paginated 4-65 and 66-96 respectively. The Creditor is put to strict proof that these letters were sent to, and received by me.
   
6. In any event, I take issue with the fact that these documents are true copies of the originals the Creditor claims were issued in accordance with Consumer Credit Act guidelines. The Court is referred to the following letters, which appear to be computer generated and incomprehensible to say the least.
   
7. Exhibit numbers 4, 8, 9, 11, 14, 18, 19, 20, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 83, 84, 85, 87, 89, 91, 94, 95, 96 are pertinent in this matter. I strongly refute the Creditors claim that these are true copies of the letters and in any event they totally lack credence.
   
8. At Paragraph 9, the Creditor asserts that I have now decided to challenge the debt after receipt of the Statutory Demand. I cannot see how this statement is relevant, when I have a time limit of 18 days to challenge it or apply to have it set aside as provided for in the Insolvency Act 1986. I would draw the attention to the Court that a letter dated 2 October 2010 (Exhibit 13) mentions the issue of a Statutory Demand - and yet the Creditor did not issue a Statutory Demand for another two-and-a-half years.
   
9. I have no further comment relating to Paragraph 10, other than that the Statutory Demand is disputed and I am seeking a set aside.
   
10. My comment relating to Paragraph 11 is that I exercised my right to act within 18 days to make application to Court to set aside the Statutory Demand.
    
11. I have no comment to make relating to paragraphs 12, 13, 14. I confirm I initially relied on Section 78 Consumer Credit Act 1974 as one of the bases of my application to set aside.
    
12. Paragraph 16 - Noted.
    
13. The Creditor is stating that my reliance on Section 78 of the Consumer Credit Act 1974 is misconceived. I totally fail to see how this remark is relevant - Section 78 is established law giving a right to consumers to request information relating to their credit accounts.
    
14. I cannot see the relevance of the remark at paragraph 18 when I was simply exercising a basic right under establishd law, to seek to set aside a Statutory Demand and request documents.
    
15. At paragraph 19, reference is made to the Reconstituted Credit Agreement, exhibited at Pages 102 to 104 in relation to the Shop Direct claim.
    
16. It is with this document I take issue with and breaches of the Consumer Credit Act 1974 and recent case law arise which I consider the Shop Direct agreement to be unenforceable.
    
17. Section 78 of the Consumer Credit Act is revisited here, in that if a borrower asks for one, a "true copy" of the agreement must be provided, including terms and conditions.
    
18. The Court is referred to the case Carey v HSBC Bank plc [2009] EWHC 3417 (QB).The relevance of this case to my situation is set out as follows.
    
19. HHJ Waksman set out that whilst a reconsituted copy of a credit agreement is sufficient, it must contain the name and address of the debtor at the time the agreement was executed. In paragraph 60 of the Judgment HHJ Waksman states "..as a matter of common sense it is difficult to see how a copy of an agreement can omit the names of the parties...in my view it is clear that the name and address must be provided".
    
20. A copy of the Shop Direct agreement is exhibited at pages 102 to 104 which the Court will see that my name and address does not appear. This contravenes the judgement in the Carey case.
    
21. The attention of the Court is drawn to the fact that the date 24 May 2010 appears in the bottom right-hand corner of each sheet. The Creditor's claim that the document is a "true copy" of the original agreement is rejected, given that the Shop Direct account was to the best of my knowledge taken out in/around 2005. A document dated 24 May 2010 simply cannot be a true copy of the original.
    
22. I believe the copy Shop Direct agreement totally lacks credence, and it is open to speculation if it is a genuine true copy or indeed a fabrication.
    
23. I now bring the attention of the Court to the Office of Fair Trading Guidance on sections 77, 78, and 79 of the Consumer Credit Act 1974 (document OFT1272) Paragraph 2.21 of those guidelines state "The name and address at the time of execution must therefore be included". The document provided by the Creditor fails in this regard. The Creditor st ates at Paragraph 20 that they "strongly believe" Section 78(1) has been complied with by virtue of the constituted agreement. I strongly disagree.
    
24. I have also yet to be provided with copies of any statements or changes to the terms and conditions as provided for in the Consumer Credit Act 1974. The Creditor states at Paragraph 21 their inquiries are on-going, the burden of proof is incumbent upon the Creditor to comply and deliver up the documentation.
    
25. The Creditor states at Paragraph 22 my assertion that the debt is made up of unlawful charges and penalties is "pure speculation" and is "without foundation". I disagree.
    
26. The Creditor states at Paragraph 21 they are attempting to obtain copy statements from Shop Direct, which will undoubtedly include details of any such charges and penalties potentially challengeable. It is the quantum of the debt that I dispute and I will intend on challenging such charges and penalties once further information comes to light. Paragraph 29 below refers to the copy statements provided for the Barclaycard claim and are indicitive of the penalties and charges I may be able to challenge.
    
27. I have no further comment to make on Paragraphs 23 and 24 relating to the Barclaycard claim.
    
28. Whilst it is noted at Paragraph 25 a Statement of Account has been provided, the Creditor has still failed to provide a "true copy" of the credit agreement. As provided for in the Consumer Credit Act 1974 and the Office of Fair Trading guidelines, the agreement remains unenforceable until such time as a "true copy" is provided.
    
29. No comment is made in respect of Paragraph 26.
    
30. In relation to Paragraph 27, I reiterate that I believe until a "true copy" of the agreement is provided the agreement remains unenforceable. For this reason I disagree with the remarks at Paragraph 28, and exhibited at Pages 105 to 109 are the copy statements showing the charges I dispute. I should point out to th e Court that to the best of my recollection my original credit limit was in the region of £250, where the sum the Creditor claims is nearly double that figure.
    
31. The creditor claims the sum of £4,447.25 is "due and owing". I disagree, on the grounds that the Shop Direct claim is unenforceable due to breaches as explained above, and that the Barclaycard claim is disputed, again as explained above.
    
32. Paragraph 30 is totally refuted for the reasons given above.
    
33. The Creditor claims at paragraphs 31 and 32 I have a "vague belief" that the sums claimed potentially include unlawful penalty charges and putting me to strict proof to substantiate this. The Consumer Credit Credit Act puts the burden of proof on the Creditor to provide copy statements (the Creditor admits their inquiries are on-going and they will serve me with copy statements). Once this information is to hand it is my intention to challenge any potentially unlawful charges. The Office of Fair Trading Guidelines (at 3.1 states the creditor or debt owner is obliged to give the debtor a statement of account).
    
34. I totally disagree with the remarks at Paragraph 32, rather the evidence is overwhelming that the Creditor has failed to provide a properly re-constituted "true copy" of the original agreement rendering the Shop Direct claim unenforceable.
    
35. I now bring to the attention to the Court my opinion that the Creditor has abused the Insolvency Act and Rules on a number of grounds.
    
36. It is my opinion that the Creditor has abused the Statutory Demand process and has merely used it as a debt collection tool, and rather has used it as a "fishing expedition". I believe that the insolvency Court is an inappropriate place to seek to enforce these claims, given that the documentation provided fails on a number of grounds as explained above.
    
37. If I were not to seek a set aside of the Statutory Demand within the prescribed period, it would remain a live document ad-infinitum, giving the Creditor carte-blanche freedom to issue a bankruptcy petition at its own will. It is clear a lot more investigation needs to be done which may well take a lot longer than the 18 / 21 days required to dispute or respond to a Statutory Demand.
    
38. I also consider that to combine two claims, from two different original creditors, when one sum claimed is considerably less than £750 is again an abuse of process.
    
39. The Office of Fair Trading guidelines defines "unenforceability" (at section 5) and I consider that I have been misled by the Creditor as to the enforceability of the Shop Direct account (in particular the copy agreement). I consider this to be an unfair and improper business practice by the Creditor and their fitness to hold a Consumer Credit Licence is called into question. I also consider it an unproper business practice under the Consumer Protection from Unfair Trading Regulations 2008 - the Creditor is threatening bankruptcy proceedings against me when a proper "true copy"of the agreement in accordance with the law has not been provided.
    
40. I believe that had the Creditor issued a County Court claim (as opposed to issuing a Statutory Demand) such a claim would have failed on the grounds of unenforceability.
    
41. I therefore respectfully request that the Court dismiss the claim from the Creditor that the Statutory Demand is valid, and to make an order that it be set aside.
    
42. Lastly I shall deal with the issue of costs. In the event the Court finds in my favour I respectfully ask that I be allowed a short time period to file a statement of costs to be awarded against the Creditor on a summary basis.
    
43. I have exhibited to this Witness Statement at "" a copy of the Shop Direct agreement as provided by the Creditor, and excerpts from the Carey judgment and Office of Fair Trading Guidelines.
    

I believe that the facts in this statement are true.

[nunkychunky]

Don't think they (Lowells) have added charges.

 

They are sending Counsel to the hearing (agents, possibly a junior barrister) but that doesn't faze me, I hope what I am about to send will give them something to think about.

 

The agreement for Shop Direct clearly is one Lowells have concocted themselves at the time they took over the account in 2010.

 

For what it's worth, should I email B W tomorrow saying a second WS is about to land at their door anytime soon?

 

NC

Edited May 28, 2013 by nunkychunky

[nunkychunky]

Folks,

 

This is the actual "true copy" B W sent me yesterday and are seeking to rely on. As you will see, there is no name and address.

 

NC

[BRIGADIER2JCS]

Well if they intend to claim that the document is even a reconstituted agreement it fails immediately, a recon MUST have the name and address of the Creditor at the inception of the account and the customers name and address at the inception of the account.

 

So write and reject the document as non compliant, do NOT point out why you believe this is the case.

 

For once I would recommend an e-mail response followed up by post.

[nunkychunky]

Very brief email sent saying that the document is rejected in its entirety and allowing them until close of business today to withdraw the SD, else a further witness statement will be served and lodged in Court. A letter will also be going out tonight.

 

NC

[BRIGADIER2JCS]

Very brief email sent saying that the document is rejected in its entirety and allowing them until close of business today to withdraw the SD, else a further witness statement will be served and lodged in Court. A letter will also be going out tonight.

 

NC

 

Excellent NC!!

[nunkychunky]

The sad thing is that I am quite enjoying doing battle and taking the fight to them.

[pdb1980]

Watching this with interest, best of luck.

 

FYI without going through your posts the bit where Lowel claim error of judgment on your part on relying on the CCA, if i'm not mistaken didnt you recieve a letter confirming your request BW where in it it clerarly states that it is YOUR LEGAL RIGHT to request this hence it being sent on to lowels? just something you could possibly use if needed?

[nunkychunky]

Folks,

 

No response from B W yesterday, so the attached second witness statement was sent by Recorded Delivery last night - and a copy is going to be hand-delivered to the Court today.

 

NC

[citizenB]

For an s78 request to have been complied with correctly you are entitled to..

 

A copy of or truthful reconstruction of the agreement entered into. (the one they have provided cannot be a truthful reconstruction as - you have pointed out It is dated a number of years AFTER the account was opened and it does not have any reference to you personally.

 

A copy of the terms and conditions from both inception and current or at the time of default. It would appear they have not provided these.

 

A statement of account showing how the amount claimed has accrued showing any default/penalty charges with proof they are genuinely owed.

 

It is my understanding also, that the information should be provided in one package and not sent in dribs and drabs.

[postggj]

Paragraph 22 is a bit strong,

 

You are directly inferring the claimant and there solicitors of unlawful conduct

 

You need to remove the word fabricated and replace with something like

 

It is my own opinion that the claimant is mistaken in that that the credit agreement supplied is a true copy of the original, and put the claimant to strict proof

 

You start saying an organization or a solicitor of impropriety, that will guarantee to anger the judge with no justifiable evidence to back up your subjective reasoning. You need to keep it factual, not personal opinions

[sequenci]

That's a really good point.

[nunkychunky]

Folks,

 

Thanks for the feedback.

 

I appreciate paragraph 22 might read a bit strong, but I tried to choose my words carefully. I have not directly accused them of improprietry hence the wording "it is open to speculation".

 

However I have already sent it to B W so possibly too late to track back now, unless I prepare and serve a redacted version, with an amendment to Paragraph 22. The hearing date is, however, on Tuesday next week so time is short.

 

If it is too late to do anything, I suppose it will boil down to how the Judge will interpret it, if the point is raised I will have to explain myself. The point is it cannot be certain that it is a true copy and it surely is up to B W to argue that it is.

 

NC

Edited May 30, 2013 by nunkychunky
Forgot to add something

[BRIGADIER2JCS]

Personally I think para 22 i9s accurate from what I see on this thread.

[nunkychunky]

Afternoon folks,

 

Absolutely no response from B W or Lowells, either to my second WS or to the letter I sent rejecting their agreement (both were sent by Recorded Delivery by the way). Does this sound about right?

 

I will, obviously, be attending the hearing tomorrow (I think B W are sending a junior barrister from LPC Law - a firm of agents) - will it be just a matter of turning up and seeing what happens? Is it likely their agent will wish to enter into any discussions before the hearing?

 

Fingers crossed I get the SD set aside and I hope that I have set out my case in such a way to plant a seed of doubt in the mind of the Judge.

 

NC

[BRIGADIER2JCS]

Bit too soon for a response yet imo.