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SD lowell/BW - old Lloyds Credit Card

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Hi All

 

My wife has received a SD from a solicitor acting for a collections company (originally Lloyds credit card)

 

We did communicate with Lloyds and requested an original copy of the credit agreement but they never replied. We been away and have returned to find this SD with only a few days left to respond.

 

I'm looking for a way to stop any further action as we are struggling due to issues with property going back several years. Long story short we have 5 properties that we rent out and had some very bad luck with a few tenants that's left us in severe debt on top of buying our last flat at the end of the property bubble in 2008 (we had intended flipping it but had to keep it).

 

About ten years ago a friend was defending a court situation regarding a a credit card, a loan and some other minor debts. He was told by a debt management company that there was some kind of law preventing certain actions being taken against him if the action would prejudice other companies he owed money to.

 

Does any one know if this applies to SD's?

 

We can't deny owing the money because we obviously do but there's no way we can pay this at the moment. When I say our situation is serious we have had a debt advisor calculate that we are currently about minus £600 per month due to the property situation. And we can't sell as most are in negative equity or would just break even.

 

Any advice on how we can avoid further action would be most appreciated even if it's that we should offer £1 per month.

 

Thanks

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Hi Banking.

 

If the OC is in default of your section 78 request then you have a disputed debt and a reason to set a side the SD.I am assuming this debt as been assigned from LLoyds to Lowells?

 

If you could give a rounded figure of value.

 

What date was it served?

 

Documents you will require :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?406102-LEGAL-Form-6.4-amp-6.5-Application-to-set-a-side-a-Statutory-Demand

 

 

Further info for you to digest :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?162131-Statutory-Demands-and-Service-By-Post

 

Regards

 

Andy


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Hi Andy

 

Thanks for the reply. I think it's about £7,000 and it was served on October 5th (Saturday).

Yes it's Lowell via BW Legal which seems to be a theme on the forum at the moment!

 

As we do owe the money is it worth setting the SD aside rather than just contacting the solicitor and agreeing a small monthly payment?

I'm concerned about making the wrong move as well as getting on the wrong side of the judge if I make a defense that isn't valid.

 

Is there some kind of document required for making the transfer between Lloyds and Lowells legal too?

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Hi,

If you do not get the SD set aside, Lowell will go for full bankruptcy.

 

As this was for a credit card, there is likely to be charges and associated interest on those charges which are likely to have been included within the figures for the SD. The charges are unlawful and are also grounds for getting the SD set aside. The failure to provide the agreement is the first point for your SD.

 

I have to say that on the threads I have seen where a consumer has challenged Lowell, they have backed down quite quickly. This may (or even may not) happen in this case.

 

When a debt is sold, this falls under the Law of Property Act and as such either Lloyds or (usually) Lowell will send a Notice Of Assignment to you advising that they have bought the debt.


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Personally i would go for the set a side before any offer.....you have perfect grounds ...their none compliance to your section 78 request.

 

You can offer a repayment plan....would they accept...have you got time...the clock is ticking.

 

Regards

 

Andy


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okay so I spoke to the solicitor for Lowell .

 

They said they would hold any action while they arrange for the documents to be sent.

I'm still filling my set aside as their loyalty is obviously not to me.

 

The second question they asked was, once the documents are provided what would be my reason to dispute.

So it seems to me that the SD is a scare tactic to force you to put all your cards on the table so they can corner you and insist on a repayment plan.

 

Sound about right?

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Thats about right...so you wait now for a copy of your agreement...strange how they think they can provide it and Lloyds couldn't....we will see.


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Okay I've done the paper work to set it aside.

 

Still concerned though that just claiming they didn't provide a copy of the agreement is a weak defense as if they do provide the paperwork either before or at court, will that mean they win and we end up with a bankruptcy order going ahead?

 

So I'm trying to find other points of law if there are any??

 

For example what's the position (given that there is a time limit on them providing the info) in that they failed to respond when requested to do so last year while the debt was still with Lloyds?

 

And I'm reading lots online about the OFT taking a dim view to companies using SD's but the only guidance I can find is that they shouldn't use this method if they don't intend going through with the bankruptcy petition. With that what's to stop them going through with making us bankrupt? It seems a bit over the top for 7k.

 

As long as they can provide the paper work (which I find incredible that some can't) then they have nothing to lose by taking this course of action do they?

 

There are even solicitors giving advice on their website about how to use this method.

 

Any further advice on what to prepare for once we get to court would be very helpful.

 

 

Thanks all

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Yep.....get a Subject Access Request off to the original creditor (LTSB).

This may draw out further documents to use to your advantage if this gets to Court.

 

BTW...do you have any documents relating to the account such as a Default Notice, Notice of Assignment etc.. ?


 

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Hi Supasnooper

 

Thanks for that you just prompted me to look at the letter I sent back in 2012 which I'd forgotten was in fact a SAR.

 

 

I can't remember what they sent in reply, I think it might have been a single page from the agreement (yellow sheet) but not too sure.

 

What I do know for sure though is it certainly wasn't what you get in a proper SAR bundle.

 

So lets see what they send next.

 

Can any one tell me what bearing it has on the current situation that they failed to respond correctly to the SAR?

 

Thanks

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" Can any one tell me what bearing it has on the current situation that they failed to respond correctly to the SAR? "

 

None unlike a section 77/78 request.


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Thanks Andy

So three further questions.

 

1. Does it make any difference that in the SAR I specifically requested a copy of the credit agreement (bullet point list)?

2. Should I ask for one now and do I need specific wording?

3. Does the above mean my SD set aside will fail and is there anything I can do to fix the problem?

 

Cheers

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Thanks Andy

So three further questions.

 

1. Does it make any difference that in the SAR I specifically requested a copy of the credit agreement (bullet point list)? No because they are not legally required to provide one in a DSAR .....only a section 77/78/79

2. Should I ask for one now and do I need specific wording? I thought you already had done a section 77/78 post #5/6 above

3. Does the above mean my SD set aside will fail and is there anything I can do to fix the problem? Not if they are in default of a section 77/78 request they have stated they have put it on hold until they can/if comply

 

Cheers

 

Regards

 

Andy


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Hi Andy,

 

Your earlier post prompted me to check what I originally sent them and it was a SAR. The agreement to hold while they provide the original credit agreement was made in a phone call last week. Does this still count legally?

 

Just asking because I had a verbal agreement made on the phone with another firm of solicitors to hold action while I was out of the country (different situation) a while ago and they broke the agreement and went ahead without informing me.

 

Thank you so much for your advice.

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Also forgot to mention that the solicitor sent the SD via a processor and it was not in an envelope. The paperwork was stapled to and empty envelope.

As such the delivery guy had full access to the information. Is this not a failure to apply data protection to my wife's information?

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Hi Andy,

 

Your earlier post prompted me to check what I originally sent them and it was a SAR. The agreement to hold while they provide the original credit agreement was made in a phone call last week. Does this still count legally?

 

Just asking because I had a verbal agreement made on the phone with another firm of solicitors to hold action while I was out of the country (different situation) a while ago and they broke the agreement and went ahead without informing me.

 

Thank you so much for your advice.

 

Phone calls and promises count for nothing have you sent this :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?387435-CCA-Request-Consumer-Credit-Act-1974

 

Also forgot to mention that the solicitor sent the SD via a processor and it was not in an envelope. The paperwork was stapled to and empty envelope.

As such the delivery guy had full access to the information. Is this not a failure to apply data protection to my wife's information?

 

I have covered that in post #2..... 2nd link

 

Regards

 

Andy


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Okay we are due in court next week so I called the solicitor to ask if they had any intention of supplying the cca as required and agreed.

They said they don't have it yet but they had requested it from the original creditor 5 weeks ago and that sometimes these things take time.

 

So they asked if we would agree to adjourn.

 

What's our next move?

If we don't agree to adjourn and they ask the judge at court, do they have any chance of winning or will the judge more likely take the

stance that they've had enough time to supply the cca (given they should have had it in their possession before taking this action)?

 

Any help much appreciated.

 

Thanks

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Okay we are due in court next week so I called the solicitor to ask if they had any intention of supplying the cca as required and agreed.

They said they don't have it yet but they had requested it from the original creditor 5 weeks ago and that sometimes these things take time.

 

So they asked if we would agree to adjourn.

 

What's our next move?

If we don't agree to adjourn and they ask the judge at court, do they have any chance of winning or will the judge more likely take the

stance that they've had enough time to supply the cca (given they should have had it in their possession before taking this action)?

 

Any help much appreciated.

 

Thanks

 

I suspect that if you don't agree to the adjournment they will just turn up to the hearing, explain that they are having difficulty obtaining documents from the OC and ask the Judge for an adjournment. I can see the Judge agreeing to this. They seem to bend over backwards to help claimants. But perhaps give it a go. Turn up to the hearing and see how it goes. They may not turn up, you explain your case and get the set aside.


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I suspect that if you don't agree to the adjournment they will just turn up to the hearing, explain that they are having difficulty obtaining documents from the OC and ask the Judge for an adjournment. I can see the Judge agreeing to this. They seem to bend over backwards to help claimants. But perhaps give it a go. Turn up to the hearing and see how it goes. They may not turn up, you explain your case and get the set aside.

 

Thanks unclebulgaria67

 

They are turning up anyway (sending their advocate), they confirmed that on the phone. They said if we send an email agreement to adjourn, that's what they will ask for and we need not attend. But I don't see what other option they have as they don't possess the CCA. Also are they just trying to avoid paying costs as we requested costs in our set aside (using the calculation as advised on this forum) so shouldn't we attend for this reason, so we can request the costs?

 

Why would they ask us to agree the adjournment if they don't have a concern that the judge might grant the set-aside?

 

I thought they were supposed to already have the document before taking recovery action otherwise they can't have checked the legal standing of an account they have purchased? I also thought they had to produce the required CCA within 12 days.

 

At the end of the day they have not communicated with us about the need to adjourn until I phoned them so it's a bit late in the day to expect us to co-operate. That said I don't want to annoy the judge. Will he or she expect us to have agreed to adjourn?

 

Oh I forgot to mention earlier, they claimed to have the notice of assignment and sent a copy. But it's just a letter from them to us saying they have become the debt owner. Isn't there a more official document required beyond a simple letter?

 

Many thanks

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Hi

I would certainly not agree to the adjournment as that does you no favours. With any court case it is down to the judge lottery but I would still press for the set aside.

 

As for the NoA, this can be sent by the creditor or the debt purchaser with the original creditors permission and it can be just a simple letter.


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Thanks silverfox1961

 

Okay we will certainly press on as you suggest.

 

With regards to adding as much weight as we can to our reason to set aside, what should we focus on in court?

 

1. No CCA produced

2. No Default notice produced

3. We have just found a solicitor's letter (pre Lowell purchase) which shows an amount different to the SD claim. It's very slightly higher though. Should we use this even though it's higher to argue that the amount is not established?

4. The claimant solicitor did not bother to contact us once they knew they couldn't produce the CCA yet now we've had two emails after my call to them, pressing us to agree to an adjournment.

5. Any other suggestions?

 

Thanks

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Update And It's Not Good

 

Okay we had our hearing today and we were totally ambushed. The solicitor for the other side was already in the room talking to the judge and the judge was hostile from the outset. I thought they were supposed to be impartial but his mind was obviously made up before we arrived.

 

He refused our request for me to address the court as my wife's lay representative. He instructed her to sit nearest him and he asked her questions obviously designed with one aim in mind. My wife was not prepared so struggled to answer anything well.

 

He paid no attention to the OFT guidance about debt comapanies duty to establish facts before taking any action, that Lowell had failed to supply the CCA or any other paperwork.

 

The solicitor for BW legal actually made the comment that the previous creditor "Lloyds had washed their hands of the matter and didn't want to know" with regard to providing a copy of the CCA. Could this be because it doesn't exist????

 

I thought we had the right to these documents. The judge showed no compassion or respect towards my wife and placed the onus on her to prove how much we had paid towards the loan. What is it about our legal system where we are expected to treat a judge with respect but they (knowing nothing about you) can treat you like you are **** on their shoe) Why does having debt which can easily result from life circumstances mean you are treated so badly in court and by creditors?

 

We definitely did not get a "fair" hearing by a long way. If I was cynical I'd wonder about complex arrangements for financial compensation of judges. There are many internet references to illuminate and the like. Mmmm could they really exist ; )

 

Anyway, does anyone have advice for our next move given the judge has granted a petition?

Is there any point in pursuing Lloyds for the original documentation? If it doesn't exist can they still sell the account to Lowell legally?

 

Any help much appreciated.

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Thought that this was for the set aside and not a bankruptcy petition. If this is so, the Judge has purely said that BW Legal can petition for your bankruptcy and that your set aside was not accepted.

 

You need to see a Solicitor who deals with bankruptcy cases. Don't think you can post to forums and through self help manage to get out of this situation. Unfortunately as you have found out, some Judges appear to lean more to creditors and therefore you need proper legal help to ensure that they can't get away with this. You may have the same Judge at any hearing to decide on a bankruptcy petition.


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Update And It's Not Good

 

Okay we had our hearing today and we were totally ambushed. The solicitor for the other side was already in the room talking to the judge and the judge was hostile from the outset. I thought they were supposed to be impartial but his mind was obviously made up before we arrived.

 

He refused our request for me to address the court as my wife's lay representative. He instructed her to sit nearest him and he asked her questions obviously designed with one aim in mind. My wife was not prepared so struggled to answer anything well.

 

He paid no attention to the OFT guidance about debt comapanies duty to establish facts before taking any action, that Lowell had failed to supply the CCA or any other paperwork.

 

The solicitor for BW legal actually made the comment that the previous creditor "Lloyds had washed their hands of the matter and didn't want to know" with regard to providing a copy of the CCA. Could this be because it doesn't exist????

 

I thought we had the right to these documents. The judge showed no compassion or respect towards my wife and placed the onus on her to prove how much we had paid towards the loan. What is it about our legal system where we are expected to treat a judge with respect but they (knowing nothing about you) can treat you like you are **** on their shoe) Why does having debt which can easily result from life circumstances mean you are treated so badly in court and by creditors?

 

We definitely did not get a "fair" hearing by a long way. If I was cynical I'd wonder about complex arrangements for financial compensation of judges. There are many internet references to illuminate and the like. Mmmm could they really exist ; )

 

Anyway, does anyone have advice for our next move given the judge has granted a petition?

Is there any point in pursuing Lloyds for the original documentation? If it doesn't exist can they still sell the account to Lowell legally?

 

Any help much appreciated.

I have plenty of advice to give to youbased upon the matters of the case that you have posted here.

However, I am not very well at present, soit may be on the morrow or the day thereafter that I post myadvice/opinion/support and help to you and your family as regards the processof appealing this clear error of law and the injustice that you and your familyare now drowning in because of the same.

Hold on, I will get to you and I will helpyou.

Godzilla

Kind regards

The Mould

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Was any costs order made against you?

 

The judge was perfectly entitled to refuse to hear you on behalf of your wife so there's no argument there. What exactly was your wife asked by the judge and what responses did she give?

 

I note you said in an early post that there was no real dispute that you owed the money. Frankly I think a lot of judges are getting fed up with dealing with these sorts of applications where ultimately the debt is due and owing. I'm not saying that's the right judicial approach necessarily but if you were to consider an appeal you would need to have grounds and if you lost an appeal then there would be a further load of costs added to the debt.

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