Lloyds TSb and Lowells SD Served***Set a Side***

[gazbo34]

Hi Guys and Gals,

 

Just a quick one :-

 

Got an old Lloyds c/card debt from approx 2007/2008 ,

the card was initially taken out in 2002 and now the debt has been sold to Lowells,

 

over the past couple of months had the usual assortment of letters but have just ignored them as the debt is not far off being SB.

 

However on Friday got a new letter from them this time saying that they may now go down the route of a Statutory Demand and instructing solicitors etc.

 

Im going to send a CCA request to Lowells and send a SAR request to Lloyds.

 

Does anyone have an address to use for Lowells and for Lloyds TSB as the one on their letters is a PO box

and i didnt think you could send recorded deliveries to PO Boxes.

 

As usual any help, ideas or advice is greatly appreciated

 

Gazbo

Edited September 22, 2013 by gazbo34
Idiot doing the typing !!!!

[fkofilee]

Lowells are a pain in the arse... How much is the debt worth and are you a homeowner?

 

Reason i ask... Lowell may go down that route if its a large debt and you're a homeowner.

[gazbo34]

Hi fkofilee,

 

The debt is approx £6K and i am a homeowner, Ive got a mortgage with another 2 people ( both are listed on the mortgage and deeds)

 

Gazbo

[dx100uk]

don't waste money on recorded delivery

use free proof of posting at the PO counter

you DONT have to prove they got a letter

 

only that you POSTED it.

 

how have you calc'd the SB date?

 

dx

[BRIGADIER2JCS]

Hi Guys and Gals,

 

Just a quick one :-

 

Got an old Lloyds c/card debt from approx 2007/2008 ,

the card was initially taken out in 2002 and now the debt has been sold to Lowells,

 

over the past couple of months had the usual assortment of letters but have just ignored them as the debt is not far off being SB.

 

However on Friday got a new letter from them this time saying that they may now go down the route of a Statutory Demand and instructing solicitors etc.

 

Im going to send a CCA request to Lowells and send a SAR request to Lloyds.

 

Does anyone have an address to use for Lowells and for Lloyds TSB as the one on their letters is a PO box

and i didnt think you could send recorded deliveries to PO Boxes.

 

As usual any help, ideas or advice is greatly appreciated

 

Gazbo

 

Ms Sarah de Tute

Director of Legal & Compliance

Lowell Group

Enterprise House

1 Apex View

Leeds

LS11 9BH

[gazbo34]

Thx for the replies,

 

Posted Cca and Sar request, great shout on the proof of posting dx100uk

 

Over the SB I was looking back over previous bank statements and couldnt find a payment after late 2007, so hopefully I didnt make a cash payment after this date

 

Is it still 12 + 2 days for a CCA request ?

 

Will post back once i have any further info and once again thx for the help

 

gazbo

[dx100uk]

12+2 working days

 

dx

[gazbo34]

Quick update :-

 

Had no reply from my CCA request and the time limit was up on Friday which coincidentally enough was the day the process server put my SD through the letter box (although he did inform me by post he was coming) Will scan a copy up later.

 

As they are in breach of my CCA request am i best sending the account in dispute letter to them or phoning the person listed on the SD and advising him they are in breach of a CCA request and to cancel the SD or should i do both ????

 

As usual any help or advice greatly appreciated

 

Gazbo

[BRIGADIER2JCS]

I suspect the 'person to call' will be unavailable!

 

Who is named please?

 

You should write immediately to:

 

Private & Confidential

Ms Sarah de Tute

Director of Legal & Compliance

Lowell Group

Enterprise House

1 Apex View

Leeds

LS11 9BH

 

Date: ..............:

 

Ref: use theirs:

 

Re: Statutory Demand.

 

On date.................., I received a statutory demand in regard to a debt in the sum of £xxxx.xx I intend to have this set aside.

 

Further to receiving the SD I must point out that Lowell have failed to comply with my lawful request for documents made under sections 77/78 of the Consumer Credit Act 1974 (as amended) therefore this alleged debt is formally in dispute and no enforcement action should be taking place as you are no doubt well aware.

 

The SD should now be withdrawn immediately.

 

Get this sent today by recorded/signed for post, check receipt.

 

Phone the number given and IF you get through give them the same information but still send the letter.

[Guest]

gazbo

remember 18 days from service of SD to apply to set aside, in case they don't withdraw!

did you do the sar to loyds?

[gazbo34]

Hi BRIGADIER2JCS,

 

Thx for the prompt reply but unfortunately have only just got in from work so will have to send it first thing in the morning,

 

Got a quick query for you though !!!! is it worth adding some sort of time scale to the letter, ie i expect you to confirm this within x days or do i just carry on and get my set aside ready to go ?

 

Cheers

 

Gazbo

[gazbo34]

Hi Ford,

 

Yead did the SAR request the same time as the CCA request, had some bits and bobs back from Lloyds but they relate to settled loans, not had anything yet in realtion to my c/card.

 

 

 

BRIGADIER2JCS :- sorry forgot to give you the name, it is Mr B Singh Sur

[Guest]

loyds seem to do that, sometimes in bits, sometimes as a whole just before the 40 days.

as is lowells, it would be a result if they decide to withdraw. so be ready to prepare a set aside in time, if thats what you decide on.

Edited October 15, 2013 by Ford

[gazbo34]

[ATTACH=CONFIG]47058[/ATTACH]

 

Quick update,

Sent the letter the Brigadier advised to Lowells (signed guaranteed delivery sent on the 15/10/13 and signed for on the 16/10/13) and even emailed a copy of it to BW Legal.

 

Got up today and found the attached letter from BW legal, they have requested my CCA and hope to have it within the 12 day time limit, Idiots !!! your already 10 days late from my request that was sent on the 23rd September !!! and will place my account on hold but no mention of withdrawing the SD

 

Not sure how to proceed now, fire off a snotty letter to BW Legal and Lowells once again reminding them of CCA Act S77(6) or just go ahead and file my set aside ( got it about 70% done ) or do both

 

As usual any help greatly appreciated

 

Gazbo

[Guest]

attachment too small

keep preparing the set aside in time, they're unlikely to withdraw atm. them putting the a/c on hold (sounds like a template letter) doesn't extend the official time limit for submitting a set aside application. from what you say, they are already in default of the statutory request?

Edited October 22, 2013 by Ford

[dx100uk]

you need to convert the image to PDF

then attach it via the go advanced button

manage attachments

 

dx

[gazbo34]

Second time lucky ( hopefully !!)

 

Will get my set aside finished and posted up for comments tomorrow

 

Gazbo

[gazbo34]

Just got in from work and found this little beauty from Lowell's in todays post.

 

Will carry on with my set aside and hopefully get a copy posted later this evening for your perusal and comments

 

As usual any thoughts or comments appreciated

 

Gazbo

[dx100uk]

ok their wriggling

 

using an sd solely for debt collection purposes

hold no relevant paperwork at all

 

just hoping you'd not contest it.

 

well you've lots of time

 

I wonder if you could write to Lloyds regarding the SAr and ask why no Credit card paperwork was received

and where is it?

if they write back and say its over 6yrs

don't have to hold any info passed that time

I wonder where this leaves a poss statute barred reply to lowlife?

 

dx

[gazbo34]

Hi 100dxuk,

 

Lloyds 40 days for my SAR request isnt up until the 2nd November so ill have to hang on a bit longer just in case anything else turns up

 

Not quite sure how to play this now, they're saying that :- " the account should be held for 60 days ,whilst we obtain this for you.BW Legal have placed the requested hold from 1 October on the stat demand. This hold is in addition to the statutory period already outlined to you on the demand."

 

Have i now got 78 days from the 1 October to apply for a set aside ?

 

And if so am i best getting it in as soon as possible or leaving it as long as possible and seeing what turns up ?

 

If I apply for a set aside now and am succesful, if the missing paperwork turns up in the future can they apply for a new stat demand ?

 

Any advice appreciated

 

Gazbo

[Guest]

Have i now got 78 days from the 1 October to apply for a set aside

imo, no. what they prob mean is that they won't take any petition action (if at all) after the sd in that time. they have issued the demand, time starts to run. but, should you submit late, then that could be used to request an extension of time re the stat'y time limit/to be considered out of time.

if docs turn up and settlement by the time of the actual hearing, you could always vacate the hearing as required?

Edited October 25, 2013 by Ford

[gazbo34]

Finally finished my set aside so would be grateful if any one fancies having a look at it and pointing out any where I may have cocked up!!! Got a bit messed up on my dates so I need to get it into court tomorrow

As usual any help is appreciated

Gazbo

 

1) The defendant totally disputes the debt

The claimant alleges that I am indebted to it in the sum of £***** being the amount outstanding under a financial agreement. It is further alleged that the debt was assigned to the respondent from a Lloyds TSB agreement to Lowell Portfolio. I submit that the statutory demand should be set-aside upon the following grounds: -

2) I believe that the claimants use of a statutory demand is trite law and merely a scare tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of process. I believe the claimant will not turn up to court to defend this demand and it is the defendants contention that use of the insolvency laws as a debt collection tool is an abuse of the insolvency Rules. The claimant's letter accompanying the statutory demand included an invitation to offer part settlement or reduced settlement by means of installments. (Part of attachment "A")

3) The alleged creditor has failed to provide a copy of the consumer credit agreement that contains the prescribed terms. Under section 78 (1) of the Consumer Credit Act a formal written request for a true copy of a signed consumer credit agreement was sent to Lowell Portfolio via first class post on the 23/09/13 and was received by them on 24/09/13 (attachment "B") - After waiting the required 14 day period, Lowell Portfolio were sent via recorded delivery a leter (attachment "C") advising them they were in breach of Section78 (6) of the Consumer Credit Act. On 22 October 2013, Lowell Portfolio replied (attachment "D") stating that they had received my formal section 77/78 request on the 24th September 2013 and had requested the documentation required and as such would place the account on hold for 60 days. To date they have still not sent any copies of the agreement.

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;

It must also be noted that the agreement must contain the prescribed terms.

Consumer Credit Act

8.2 What if prescribed terms are missing or incorrect?

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor. If therefore any of the prescribed terms are missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation.)

REFERENCE TO CASE LAW: -

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 Trust's right to recover the total sum payable on redemption, which included the principal as well as interest`

SUMMARY OF WILSON v FIRST COUNTY LTD (2003) UKHL40

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 weather they could prove the debt existed or not (This was the decision of The House Of Lords)

4) (a) The alleged creditor has failed to provide any Default notice in the prescribed form. 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. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 of the 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 the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974.

(b) Notwithstanding the above, 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.

5) The alleged creditor has provided no statements as to how the sum of £***** was reached it not being uncommon for debts to be made up entirely of excessive penalty charges.

6) The alleged creditor has failed to serve a Notice of Assignment in accordance with section 136(1) of the Law of Property Act 1925 which requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor. Section 196(4) of the Law of Property Act 1925 prescribes the requirements for giving sufficient notice by post:-

s196. Regulations respecting notices.

(4) 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 [by 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.

It is noted that by Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded or special delivery).

7) For the assignment of a debt to be effective and so giving the Respondant a right of action, a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to S196(4) before court action is commenced. It is denied that any Notice of Assignment was served on me and so the Respondant has no right of action. It is noted that the claimant has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served.

8) In view of the matters pleaded above and that not all reasonable steps were taken by the Claimant before taking this action, the applicant avers that the service of the Statutory Demand is demonstrably intimidatory and an abuse of process.

Judge Boggis QC – RE AWAN – [2000] BPIR 241

`In my judgement, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly`

 

Accordingly, I respectfully request that the Statutory Demand be set aside and I kindly ask that the court award my costs in this matter as a Litigant In Person. I also request that the court consider making an indemnity award in light of the upset and inconvenience that this has caused my family and me.

In support of this request I would refer the court’s attention to the authority of the High Court in the case of: -

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

In this case Mr Justice Warren confirmed that it was usual for an indemnity award to be made: -

27 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 collection where 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).

[citizenB]

Responding to S.O.S, just having a read

[citizenB]

gazbo.

 

Here is my version. I really would request that you wait until I have asked others to confirm that everything is as it should be before you submit this.

 

 

 

1) Do not admit the debt is recoverable because the enforceability of the alleged debt is in dispute, the creditor’s right to demand immediate payment is also disputed at this juncture:

 

The Respondent alleges that I am indebted to it in the sum of £***** being the amount outstanding under a financial agreement. It is further alleged that the debt was assigned to the respondent from a Lloyds TSB agreement to Lowell Portfolio. I submit that the statutory demand should be set-aside upon the following grounds: -

 

2) It is believe that the Respondent’s use of a statutory demand is trite law and merely a scare tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of process. I believe the Respondent will not turn up to court to defend this demand and it is the defendants contention that use of the insolvency laws as a debt collection tool is an abuse of the insolvency Rules. The Respondent's letter accompanying the statutory demand included an invitation to offer part settlement or reduced settlement by means of instalments. (Part of attachment "A")

 

3) The Respondent has failed to provide a copy of the consumer credit agreement that contains the prescribed terms. Under section 78 (1) of the Consumer Credit Act. On DATE, the Applicant made a request pursuant s78 (1) Consumer Credit Act 1974. The request was in writing and accompanied by the statutory one pound fee. The Applicant had to follow up this request with a reminder, some 14 days later. (See attachment "B) At which point the Respondent advised it would put the account on hold until it can provide this, giving a 60 day timeline and is currently in breach of the s78 request. (See attachment "D")

 

4) The Applicant refers the Court to s78 (6) Consumer Credit Act 1974 which precludes the Respondent from proceeding with bankruptcy while it remains in breach. In the event that the Respondent seeks to avoid its obligations by suggesting that as an assignee it has no duty to comply with s78, then the Respondent is referred to Jones v Link Financial Ltd [2012] EWHC 2402 (QB) (22 August 2012) which affirmed that the duty to comply with s78 transfers to the Respondent on assignment.

 

5) The Applicant refers the court to the judgment of Mr Justice Warren in the High Court in the case of Hammonds (a firm) v Pro-fit USA Ltd [2007] EWHC 1998 (Ch) at Para 27.

 

27. "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 collection where 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)."

 

In respect of judgment of Mr Justice Warren as set out above the applicant avers that there is a clear dispute in relation to this debt and furthermore the Respondent is aware of this.

 

6) There has been a failure to provide any Default notice in the prescribed form. It is denied that any Default notice in the prescribed format was ever received and the Applicant puts the Respondent to strict proof that said document in the prescribed format was delivered to the Applicant. Service of a default notice is a statutory requirement as laid out in sections 87, 88 and 89 of the 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 the Respondents case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974.

 

7) Notwithstanding the above, the Respondent has failed to serve a Notice of Assignment in accordance with section 136(1) of the Law of Property Act 1925 which requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor. Section 196(4) of the Law of Property Act 1925 prescribes the requirements for giving sufficient notice by post:-

 

s196. Regulations respecting notices.

 

(4) 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 [by 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.

 

It is noted that by Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded or special delivery).

 

8) For the assignment of a debt to be effective and so giving the Respondent a right of action, a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to S196(4) before court action is commenced. It is denied that any Notice of Assignment was served on me and so the Respondent has no right of action. It is noted that the Respondent has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served.

 

9) In view of the matters pleaded above and that not all reasonable steps were taken by the Respondent before taking this action, the Applicant avers that the service of the Statutory Demand is demonstrably intimidatory and an abuse of process.

 

Judge Boggis QC – RE AWAN – [2000] BPIR 241

 

`In my judgement, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly`

 

10) 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, notwithstanding the points set out above, 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.

 

11) It is clear that there are several triable issues and that these matters should be properly dealt with as a part 7 claim rather than the matter progressing via the Insolvency courts. The Applicant respectfully requests that the demand be set aside and the Respondent be ordered to pay the Applicants reasonable cost of preparing this application and of attending any hearings in respect thereof.

 

Accordingly, the Applicant respectfully requests that the Statutory Demand be set aside and that the court award costs in this matter to the Applicant who is acting as a Litigant in Person. It is also requested that the court consider making an indemnity award in light of the upset and inconvenience that this has caused the Applicant.

 

 

 

 

 

You should also check the numbering and quotes, plus any the mention of attachments might need to be reslotted

Edited October 29, 2013 by citizenB
removed section not relevant.

[gazbo34]

Hi citizenB,

 

Thanks for the prompt reply, am hanging fire as requested

 

Gazbo