Lowell's Legal statutory demand, application form credit agreement enforceability

[Paul01207]

Hello all, Help needed about a signed application form received under section 78, of the act, with regards to a credit agreement. It's signed and dated by me, contains the prescribed terms of a running account, but is not dated or signed by the original creditor, nor does a signature box exist for the creditor either.

 

(3) The signature of the said document shall be made in the following manner—

 

(a)by the debtor or hirer, or by or on behalf of the debtor or hirer in the case of a partnership or an unincorporated body of persons, in the space in the document indicated for the purpose, and, subject to sub-paragraph © below, the date of the signature shall be inserted in the space in the document indicated for the purpose;

(b)by the creditor or owner, or by a person on his behalf, outside any signature box in which the debtor or hirer may sign and, subject to sub-paragraph © below, the date of the signature shall be inserted outside any such signature box;

©in the case of a regulated agreement which is not a cancellable agreement, the date on which the unexecuted agreement becomes an executed agreement may be inserted in the document and in such a case any other date specified in paragraphs (a) and (b) above need not be inserted; and

(d)nothing in this Regulation shall prohibit the inclusion in the said document, near to any such signature, of the signature by any witness outside any signature box in which the debtor or hirer may sign.

This is in relation to an adjourned application hearing to set aside a statutory demand.

original creditor: ABBEY Credit card (MBNA), Default dated mid 2009, Notice of assignment sent, Default notice sent, Last 10 statements sent. Amount of default £2000, contains about £450 worth of £12 charges.

Can an application form be said to be a enforceable agreement, even if it contains the said prescribed terms?

This may be ok for waksman, cary v HSBC but is it ok for the Wilson house of lords case

[Guest]

i would think so, ie a signed document that contains all of the prescribed terms?

re sd, is it all in order? also, if the amount is disputed, then that could also be a poss ground for set aside.

[Paul01207]

Hello, thanks for the input. The statutory demand is in order, The application is not executed with regards to the terms of the 1983/2010 consumer credit act, it is missing the creditors signature. Am I clutching at straws here. I have every statement dating back to 2003 and I'm able to check for charges.

Even with the charges taken off, the balance would still not be below the insolvency £750. Or if the amount is disputed, is this grounds for a triable case, as in a section 7 county court claim. So a setsaide should be granted?

There is another credit card balance for £2900 on the statutory demand from another creditor, Notice of assignment sent but this was sent by Lowell's, on the original creditors letter head, and can be said to be an attempt to mislead the debter. On the whiteness statement, it states this was sent by the original creditor, but it was clearly sent by the asignee on the asignor's letter head.

No default notice sent and is still out standing.

Signed application form sent, together with a reconstructed credit agreement, Although the signed application does not contain the prescribed terms, or reference to them at all, neither on an other page or to be sent in the post, etc. The reconstructed agreement may satisfy CAREY v HSBC, with regards to what they may send in relation to a section 78 request, but does not satisfy the true original credit agreement as in thr house of Lords Wilson [2003]. Any input, on these points would be most appreciated. thanks

[Guest]

as said, if they can show that there was a debtor signed doc containing all of the prescribed terms then that would prob satisfy s127 3, 4 imo.

if the amount is disputed, then that should be a ground for set aside. ie a genuine dispute.

non compliance with any legal requirements such as compliant dn (if applicable), cca request, etc should also be mentioned. as well as assignment. but note that if agreed between them, notice of assignment can come from the new owner.

however, the amalgamation may be a different issue.

wait for further input. 42man etc will no doubt look in just now.

Edited May 19, 2013 by Ford

[Paul01207]

At the adjourned hearing, I was awarded Wasted costs, to be determined at the final hearing, regardless of the result. What costs could I claim for this hearing in particular.

Saying if one of the agreements is enforceable, the other not. What is the likely baring on any set aside in my favour.

[Guest]

ok, so what happened at that hearing? why adjourned, why no decision there, any subsequent directions, etc?

[Paul01207]

It was adjourned as BWLegal solicitor had not much paper work with regards to the agreements. I refused BWLegals request that I agree to the adjournment, never the less it was granted, It was ordered that the creditor do file and serve a whiteness statement of facts they intend to rely on, and all copies of all authorities, by (Time/Date). creditor to pay defendants costs thrown away by the adjournment, permission to serve statements in reply and gain authorities, by (Time/date). They were 7 days late in serving what they rely upon, Shortening the time I have to respond. I sent a letter to the court with regards to the non service, but they must of crossed in the post. They still have not served the authorities they intend to rely on. Although the solicitor did harp on about CAREY v HSBC, and that they owned the rights and benifits, but not the duties of a creditor, I pointed out the case of JONES v LINK FINANCIAL Aug 2012, but he was not aware of it, Should really keep my mouth shut when talking to them out side of the court room.

[Guest]

when do you have to reply by?

if they have not complied with court order/directions, then goes in your favour.

they do have to show the duties were complied with re proving their case.

yes, not always advisable to talk to them outside

[Paul01207]

In a very short time. (Dates withheld). Never know who's on.

Stupid maybe, but One thing I did do was to offer Lowell's a full and final offer after receiving the Demand, to settle this, 50% of the balance, on the terms it was to be satisfied in full and not sold on. At the time I did not want to fight this, I had no response to this letter, Again I sent the offer for the avoidance of dought, again No reply. At the hearing the BW's solicitor said, "Lowell's were ready to settle at your terms, for full and final settlement". I asked Him before and after the hearing with the same reply. I fired an other letter to BWlegal mentioning the solicitors comments and again confirming my commitment to this offer, Still no reply or acknowledgment.

Over the months leading up to the statutory demand I received several offers from Lowell's, Red, Hampton's, regarding a 50% discount for full and final settlement for both accounts, with no date as to comply with their offers.

Note: in my letter of full and final offer, payment was to come from a third party, in the form of two cheques, one for each account.

A header stating this offer is made with the understanding i do not acknowledge the debt's at all, was also included.

Have they failed to compound this debt, as can be proved, I've tried to settle.

[Guest]

an sd is a prerequisite re bankruptcy as a last resort. anything other is a play on debt collection (contrary to the oft guides etc for eg), particularly if compounding offered. seems they are playing? have a read around re lowell sd's threads.

that amalgamation could be an issue?

42man and others should look in tomorrow on if you can wait?

Edited May 20, 2013 by Ford

[Paul01207]

Thanks for your advice tonight Ford.

[Guest]

no worries. 42man etc have more experience than me, and he/they usually look in on sd threads. if not, i'll give him etc a nudge.

[Paul01207]

That would be gratefull.

[citizenB]

Yes, probably best to wait on 42man for his input..

 

However, .. It doesn't really matter that the creditor has not signed it - because they will be allowed to sign it at any time and it will then make things right.

 

If you had made them offers which they implied they would be agreeable to and still they issued the stat demand, that wont look good for them. It shows that you were not refusing to pay.

 

You have a genuine dispute in that the sum they are claiming is incorrect - those penalty/default fees are reclaimable. You should at the very least prepare a spread sheet which shows what the value of those charges are. There is a spread sheet on the forum, I will pop it on your thread for you.

 

What other issues might you have with the accounts? Did the original creditor issue a Default Notice - was it valid (did it give you the correct amount of time to remedy, etc.).

[Paul01207]

Thanks CitizenB, The offers were made directly after the statutory demand was received, The offer gave BWLegal tine to withdraw the statutory demand as part of the deal, and was before I applied for a set aside.

Every thing else regarding the Abbey account seems to be in order,(notice of assignment and default notice, giving me at least 14 days to remedy the breach), The application credit agreement contains my signature and date, the prescribed terms, but not the full terms and conditions at the time of signing, i.e default charges etc, but does reference to them being enclosed.

The other Account is missing a default notice, has a reconstructed notice of assignment on very poor quality inkjet letter head. BWlegal say this was from the original creditor in their whitness statment, but it has Lowell's address box and referance numbers on it. How stupid do they think we are?

This account has a reconstructed credit agreament, and a signed application page, but the signed section does not contain any terms, or any referance to them at all.

This account has charges on it as well.

This reconstructed agreement can not be said to be a true copy, the terms regarding default charges is different to the time of signing, as is the interest rate on this recon agreement, There is how ever an other leaflet style terms and conditions page, which does have the correct, default charges and interest rate, how ever this page clearly does not have my name and address on it.

[Paul01207]

Do you think I should include the letters offering full and final settlement as part of my whitness statement in response?

[Guest]

[42man]

Do the statements match up to the interest rates ? I would be cautious about fighting this on a shaky enforceability case....however you seem to be on to something if they claim that the agreement IS a true copy and the charges are different.

[Paul01207]

Hello, I thought they had to produce a true copy of the agreement, if they wanted to enforce the agreement, as in Wilson, prescribed terms on same sheet, or reference to them etc, I may be wrong, I've read that many threads on here and I'm starting to wonder whats what.

The second account on the Demand is a reconstructed agreement, both the interest rate and the charges section have different values, for example £12 charges, where as i'm sure they were £30 when the agreement was taken out, However they have included a seperate sheet of terms and conditions with the right charges and interest values on, This was the type that was folded up into equal thirds and was like a leaflet, No name and address on this.

Charges on both accounts. £500 on one £354 on the other.

what would be the best way to approach this now, Not one for giving in.

[citizenB]

Do you think I should include the letters offering full and final settlement as part of my whitness statement in response?

 

You should certainly refer to the fact that you had attempted to make a settlement offer, yes .

[Paul01207]

To late on that on, My response to their witness statement has been served on the court and alleged creditor, Lowell's/Legal. I did not mention anything about my attempts to settle, I have three letters in total offering to settle at the amount they were prepared to settle before the issue of the statutory demand. Would I be able to include these in the hearing? They are NOT without prejudice. thanks again for any advice.

[Guest]

perhaps should've mentioned it as bankruptcy is re an inability to pay, and any compounding should negate that as suggested. but, can only try if required on the day, up to the judges discretion i suppose? you seem to have genuine dispute, so may not be needed?

Edited May 24, 2013 by Ford