SD lowell/BW legal - lloyd od ***Set a Side*** - Judge not happy they filed SD holding NO CCA!!

[remzz]

Hi All ,

I have just received a statutory demand from Lovell via BW legal stating that they have bought a debt from Lloyd bank .

 

I have always denied owing this amount to Lloyds(£3000)

and asked them to take me to court to argue it .

 

this so called debt incurred as they decided to cancel my overdraft .

 

I came to an agreement to reduce the overdraft by £50 per month initially and was managing fine ,

then they changed the rate of repayment to £100 per month which I could not manage

and assigned some ludicrous amounts in overdraft excess fees to my account

and debited these even if it meant I would be over the limit

but did not hesitate to reject direct debit for mortgage or utilities

(I was at the time receiving family and child tax credit.)

 

i have been reading the forum and need some help with the following points .

 

What is caa and who do I send it to ?

 

does anyone know if the Lloyds compliance department is still in Chatham

and is it the best address to send the SAR.?

 

finally , I will need general help on how to proceed as I am well out of my depth

 

Many thanks for your understanding

 

Remi

[ims21]

Thread moved to the legal forum where the guys will be along to help as soon as they are available.

[fkofilee]

HI Remzz and welcome.

 

You cant CCA a Overdraft, I cant fully remember why, but i think it has something to do with there being no formal contract... I think... But dont hold me to it...

 

Yet again Lowell... and BW... What a surprise.

There are some people here that know the SD process very well and they will give advice on this.

[dx100uk]

what documentation have you had from lowells & lloyds.

 

default notice.

Notice of assignment.

 

if you were hit with PENALTY fees then it could well be the DN is invalid

 

however lets see.

 

you have 18days from the date you got the SD through your door.

 

numerous threads here on Lowell/BWlegal SD's to read up on.

 

they issue then like confetti

 

dx

 

 

dx

[remzz]

I have never received a default notice or notice of assignement , the whole amount is made of overdraft excess fees .

i have downloaded form 6.4 and 6.5 and am ready to send SAR to lloyds, do i need to send a copy of the SAR to lovell or bw legal?

 

could anyone provide me with example of how to fill in setting aside form so i don't make a mess of it?

[AndyOrch]

Hi remzz and welcome to CAG

 

Take a read here first to familiarise yourself with the process -

 

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

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?407519-Statutory-Demands-and-Lowells.(1-Viewing)-nbsp

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?371191-Lowells-Statutory-Demand-(Capital-One)-***-WON-COSTS-***

 

Once you have digested the above we can take a look at drafting an affidavit to support your set a side.

 

Regards

 

Andy

[remzz]

Hi Andy ,

many thanks for this , i'll get cracking straight away.

[mikeymack2002]

Don't forget you only have 18 days to dealt with this ok also make sure you get proof of posting and keep this safe.

 

MM

[remzz]

Can anyone tell me what I can or cannot use in the text below (courtesy of downsouth) for my witness statement . knowing that I dispute the whole amount I am supposed to owe (I made it clear to Lloyds a few years ago and on several occasions that they should take it to court.as I stated to them that debt generated out of charges were unfair if not illegal.

I will send the sar recorded delivery tomorrow am to Lloyds , do I need to ask lovell for the original signed account agreement (established at the time of opening the account)?

in the letter I had from bw legal with the SD it said all correspondence should be with bw legal (is this right?)

1. I dispute the alleged account.

 

2. I believe that the claimants use of a statutory demand is trite law andmerely a tactic to frighten the defendant into paying and thereby frivolous,malicious and a gross abuse of the process. I believe the claimant will notturn up to court to defend this demand and it is the defendants contention thatuse of the insolvency laws as a debt collection toolis an abuse of the Insolvency Rules. The claimant’s letter accompanying thestatutory demand included invitation to offer part settlement by way ofinstalments. (within attachment “A”)

 

3. The claimant has failed to provide a copy of the agreement despite a legalrequest made under the Consumer Credit Act 1974 (attachment “B” and “C”). Theclaimant is in breach of Section 77 (6) of the act:

S77(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;and

(b) if the default continues for one month he commits an offence.

 

4. The claimant has failed to provide any copies of any valid default noticesas required under the Consumer Credit Act 1974 (attachment “D”)

 

5. The Claimant has failed to serve a Notice of Assignment in accordance withsection 136(1), of the Law of Property Act 1925, in respect of the allegeddebt.

 

6. The claimant has failed to provide any statements for the duration of thedisputed agreement. The amount detailed in the Claimant’s claim, which islikely to include substantial penalty charges, which are unlawful at CommonLaw, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd[1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms inConsumer Contracts Regulations 1999. Accordingly, the inclusion of penaltycharges in a Notice of Assignment renders it entirely legally unenforceable.The Claimant has failed to comply with section 136(1) of the Law of PropertyAct 1925, by furnishing a Notice of Assignment in respect of that which isdenied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

7. The defendant refers to the code of conduct stated by the Credit ServiceAssociation of which the claimant is a member. The code of conduct clearly statesits members must comply with debt collection Guidance as Published by theOffice of Fair Trading,

 

a) Conduct its business lawfully, comply with all relevant UK legislation,regulation

and judicial decisions and trade fairly and responsibly.

 

b) Adhere to all relevant requirements under the Consumer Credit Act 2006 andany other

relevant legislation.

 

c) Comply with this Code of Practice and follow any guidance notes issued bythe Board of the Association

 

q) Where a debt or the sum owed is disputed, as soon as is practicable, supplyinformation to the debtor in support of the claim. Where no information hasbeen supplied by the creditor obtain the required support, or failing thatcease collection action.

 

8. In failing to comply with the CSA’s own code of conduct above I believe thatthe claimant is in breach of the consumer protection from unfair tradingRegulations 2008. A trader is guilty of an offence if he engages in acommercial practice which is a misleading action under regulation 5 otherwisethan by reason of the commercial practice satisfying the condition in regulation5(3)(b).

 

In light of the above evidence, the defendant gracefully requests the Judgeorders the claimant to pay my full costs and compensation (either in thestandard or in the indemnity) in light of the distress andupset this has caused myself and my family. In support of this I quote:

 

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

So far as disputed debts are concerned, the practice of the court is not toallow the insolvency regime to be used as a method of debt collectionwherethere is a bona fide and substantial dispute as to the debt. Save inexceptional cases, the court will dismiss a petition based on such a debt(usually with an indemnity costs order against the petitioner). Save inexceptional cases, the court will dismiss a petition based on such a debt(usually with an indemnity costs order against the petitioner).

 

 

Attachment A is a copy of the served SD and accompanying letterincluding offer to part settle.

 

Attachment B is a copy of my CCA request to Lowells

 

Attachment C:

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, withinthe prescribed period after receiving a request in writing to that effect fromthe debtor and payment of a fee of £1, shall give the debtor a copy of theexecuted agreement (if any) and of any other document referred to in it,together with a statement signed by or on behalf of the creditor showing,according to the information to which it is practicable for him to refer,-

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor tothe creditor, and

 

© the amounts and due dates of any payments which, if the debtor does notdraw further on the account, will later become payable under the agreement bythe debtor to the creditor.

 

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;

 

For the avoidance of doubt the 2006 Consumer Credit Act does not change theabove legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisionsand Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come intoforce on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come intoforce on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for thepurposes of the 1974 Act, in relation to agreements made before 6th April 2007.

 

5. Section 1 of the 2006 Act shall have effect for the purposes of thedefinitions of “debtor” and “hirer” in section 189(1) of the 1974 Act whereverthose expressions are used in—

(a) sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130Aand 187A of the 1974 Act;

(b) section 143(b) of the 1974 Act in respect of an application under section129(1)(ba) of that Act; and

© section 185(2) to (2C) of the 1974 Act insofar as it relates to adispensing notice from a debtor authorising a creditor not to comply in thedebtor's case with section 77A of that Act, in relation to agreements madebefore 6 April 2007.

 

REFERENCE TO CASE LAW

 

As the creditor has not provided the credit agreement Wilson v First CountyTrust Ltd [2003] UKHL 40 states that:

‘….the effect of the failure to comply with the requirements of the ConsumerCredit (Agreements) Regulations 1983 was that the entire agreement ………….. wasunenforceable. The statutory bar on its enforcement extended to First CountyTrusts' right to recover the total sum payable on redemption, which includedthe principal as well as interest.’

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMERCREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARYCONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT –THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING INTHIS COURT

 

 

Attachment D:

DEFAULT NOTICE

 

 

The Need for a Default notice

 

 

It is drawn to the courts attention that no default notice required by s87 (1)Consumer Credit act 1974 has been provided.

 

 

It is denied that any Default Notice in the prescribed format was ever receivedand the Defendant puts the Claimant to strict proof that said document in theprescribed format was delivered to the defendant

 

 

Notwithstanding the above points, I put the claimant to strict proof that anydefault notice sent to me was valid. I note that to be valid, a default noticeneeds to be accurate in terms of both the scope and nature of breach andinclude an accurate figure required to remedy any such breach. The prescribedformat for such document is laid down in Consumer Credit (Enforcement, Defaultand Termination Notices) Regulations 1983 (SI 1983/1561) and amendmentregulations the Consumer Credit (Enforcement, Default and Termination Notices)(Amendment) Regulations 2004 (SI 2004/3237)

 

 

Service of a default notice is a statutory requirement as laid out in sections87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a defaultnotice must be served before a creditor can seek to terminate the agreement ordemand repayment of sums due to a breach of the agreement. therefore without avalid default notice, I suggest the claimants case falls flat and cannotproceed and to do so is clearly contrary to the Consumer Credit Act 1974

 

 

Failure of a default notice to be accurate not only invalidates the defaultnotice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR2255) but is a unlawful rescission of contract which would not only prevent thecourt enforcing any alleged debt, but give me a counter claim for damagesKpohraror v Woolwich Building Society [1996] 4 All ER 119

I can email the complete scanned SD if this helps

[remzz]

also , I received the SD on the 25th sept , so I don't think I have much time left , is it 18 working days ?

[remzz]

i meant to write , bw legal's letter and SD was dated 25th september 2013 but it was served on monday

28th of october , does this mean i have until the 13th november to apply for the setting aside ?

[remzz]

I was served in person on 28th oct with a statutory demand for an alleged debt with lloyds bank .

i have always denied to owing this money when lloyds were calling me twice a day asking for payment .

 

my argument at the time (at least 3 years ago) was that it was all made up of overdraft excess fees and they should take me to court where i would happily defend myself . then it all went quiet until the day i was served .

 

below is the draft of my affidavit to go with my set aside application which i intend to take to court tomorrow am .

 

please let me know what you think of it and add your suggestions (they re more than welcome )

 

should i hand write the affidavit or would it be better printed?

 

many thanks for your time

1/ i do not admit the debt because the debt is in dispute.

 

2/ I believe that the claimant's use of statutory demand is trite law andmerely a tactic to frighten the defendant into paying, and thereby frivolous,malicious and a gross abuse of the process. i believe the claimant will notturn up to court to defend this demand. It is the defendant's contention thatuse of insolvency laws as a debt collection tool for disputable debts is anabuse of insolvency rules. The claimant's letter accompanying the statutorydemand included invitation for the defendant to make a realistic offer, be it amonthly repayment plan or an offer for a full and final settlement (withinattachment "A")

 

3/ i believe that the amount of £3018.57 referred to in the statutory demandincludes a substantial sum of unlawful penalty charges . Lloyds bank plc havenot provided further information regarding the charges they have added to theaccount and are yet to provide a statement of account. (As requested under s78CCA 1974 on 6th November 2013 , attachment "B" "subjectaccess request)."

 

4/Theclaimant has failed to provide any copies of any valid default notices asrequired under the consumer credit act 1974 (attachment "C")

 

5/ The claimant has failed to serve a notice of assignment in accordance withsection 136(1) of the law of property act 1925, in respect of alleged debt.

 

6/ The claimant has failed to provide any statements for the duration of thedisputed agreement. The amount detailed in the Claimant’s claim, which islikely to include substantial penalty charges, which are unlawful at CommonLaw, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor CompanyLtd[1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms inConsumer Contracts Regulations 1999. Accordingly, the inclusion of penaltycharges in a Notice of Assignment renders it entirely legally unenforceable.The Claimant has failed to comply with section 136(1) of the Law of PropertyAct 1925, by furnishing a Notice of Assignment in respect of that which isdenied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

7. The defendant refers to the code of conduct stated by the Credit ServiceAssociation of which the claimant is a member. The code of conduct clearly statesits members must comply with debt collection Guidance as Published by theOffice of Fair Trading,

 

a) Conduct its business lawfully, comply with all relevant UK legislation,regulation

and judicial decisions and trade fairly and responsibly.

 

b) Adhere to all relevant requirements under the Consumer Credit Act 2006 andany other

relevant legislation.

 

c) Comply with this Code of Practice and follow any guidance notes issued bythe Board of the Association

 

q) Where a debt or the sum owed is disputed, as soon as is practicable, supplyinformation to the debtor in support of the claim. Where no information hasbeen supplied by the creditor obtain the required support, or failing thatcease collection action.

 

8. In failing to comply with the CSA’s own code of conduct above I believe thatthe claimant is in breach of the Consumer Protection FromUnfair Trading Regulations 2008. A trader is guilty of an offence if heengages in a commercial practice which is a misleading action under regulation5 otherwise than by reason of the commercial practice satisfying the conditionin regulation5(3)(b).

 

In light of the above evidence, the defendant gracefully requests the Judgeorders the claimant to pay my full costs and compensation (either in thestandard or in the indemnity) in light of the distress and upset this hascaused myself and my family. In support of this I quote:

 

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

So far as disputed debts are concerned, the practice of the court is not toallow the insolvency regime to be used as a method of debt collection wherethere is a bona fide and substantial dispute as to the debt. Save inexceptional cases, the court will dismiss a petition based on such adebt(usually with an indemnity costs order against the petitioner). Save inexceptional cases, the court will dismiss a petition based on such adebt(usually with an indemnity costs order against the petitioner).

 

 

Attachment A is a copy of the served SD and accompanying letterincluding offer to part settle.

 

Attachment B is a copy of my subject access request to Lloydsbank plc

Attachment C:

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, withinthe prescribed period after receiving a request in writing to that effect fromthe debtor and payment of a fee of £1, shall give the debtor a copy of theexecuted agreement (if any) and of any other document referred to in it,together with a statement signed by or on behalf of the creditor showing,according to the information to which it is practicable for him to refer,-

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor tothe creditor, and

 

© the amounts and due dates of any payments which, if the debtor does notdraw further on the account, will later become payable under the agreement bythe debtor to the creditor.

 

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;

 

For the avoidance of doubt the 2006 Consumer Credit Act does not change theabove legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisionsand Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (CommencementNo.2and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come intoforce on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come intoforce on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for thepurposes of the 1974 Act, in relation to agreements made before 6th April 2007.

 

5. Section 1 of the 2006 Act shall have effect for the purposes of thedefinitions of “debtor” and “hirer” in section 189(1) of the 1974 Act whereverthose expressions are used in—

(a) sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A,130Aand 187A of the 1974 Act;

(b) section 143(b) of the 1974 Act in respect of an application undersection129(1)(ba) of that Act; and

© section 185(2) to (2C) of the 1974 Act insofar as it relates to adispensing notice from a debtor authorising a creditor not to comply in the debtor'scase with section 77A of that Act, in relation to agreements made before 6April 2007.

 

REFERENCE TO CASE LAW

 

As the creditor has not provided the credit agreement Wilson v FirstCountyTrust Ltd [2003] UKHL 40 states that:

‘….the effect of the failure to comply with the requirements of the ConsumerCredit (Agreements) Regulations 1983 was that the entire agreement ………….. wasunenforceable. The statutory bar on its enforcement extended to First CountyTrusts' right to recover the total sum payable on redemption, which includedthe principal as well as interest.’

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMERCREDITAGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDERORDINARYCONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED ORNOT –THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BEBINDING INTHIS COURT

 

 

Attachment D:

DEFAULT NOTICE

 

 

The Need for a Default notice

 

 

It is drawn to the courts attention that no default notice required by s87(1)Consumer Credit act 1974 has been provided.

 

 

It is denied that any Default Notice in the prescribed format was ever receivedand the Defendant puts the Claimant to strict proof that said document in theprescribed format was delivered to the defendant

Notwithstanding the above points, I put the claimant to strictproof that any default notice sent to me was valid. I note that to be valid, adefault notice needs to be accurate in terms of both the scope and nature ofbreach and include an accurate figure required to remedy any such breach. Theprescribed format for such document is laid down in Consumer Credit(Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)and amendment regulations the Consumer Credit (Enforcement, Default andTermination Notices)(Amendment) Regulations 2004 (SI 2004/3237)

 

 

Service of a default notice is a statutory requirement as laid out insections87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that adefault notice must be served before a creditor can seek to terminate theagreement or demand repayment of sums due to a breach of the agreement.therefore without a valid default notice, I suggest the claimants case fallsflat and cannot proceed and to do so is clearly contrary to the Consumer CreditAct 1974

 

 

Failure of a default notice to be accurate not only invalidates the defaultnotice (Woodchester Lease Management Services Ltd v Swain and Co - [2001]GCCR2255) but is a unlawful rescission of contract which would not only preventthe court enforcing any alleged debt, but give me a counter claim for damagesKpohraror v Woolwich Building Society [1996] 4 All ER 119

thanks for your time

[remzz]

is a current account with agreed overdraft covered under CCA?

[dx100uk]

you have 18 days from the day YOU get it

 

dx

[AndyOrch]

Threads merged ...please do not start new threads on the same matter.

 

Regards

 

Andy

[remzz]

i have a setting aside hearing on the 9th december ., i have not yet received any information requested to lloyds by way of SAR (they acknowledge it 2 weeks ago )

how should i prepare for the hearing?

 

background info > held current account with lloyds for 15 years , had agreed overdraft of £2000 for many years , when times got tough , i started getting close to the limit and lloyds decided to withdraw the overdraft facility, i was then unable to keep within the ever reducing overdraft and collect ludicrous amounts of overdraft excess fees. was at the time receiving child tax credit and family tax credit .

 

they would not hesitate to bounce my mortgage or utilities bills direct debits but would allow their charges through and charge more overdraft excess fees . until one day i stopped paying when the amount my account was overdrawn by was less than what i had paid in excess fees .

whenever lloyds called me about it , my reply has always been consistent ," i do not owe this as it is made up of unfair charges" , take me to court.

the alleged debt is for £3000.

 

thanks for your advice

[ims21]

Two threads merged again.

 

As before, please don't keep starting new threads for this same issue, it makes it very difficult to keep track of what is going on.

[remzz]

desperate help needed , i am running out of time

[AndyOrch]

There is no further advice to be given remzz...you rely on your affidavit as above and any CCA/CPR requests you have made( take copies to the hearing)

 

Regards

 

Andy

[remzz]

Lowell SD set aside in 3 mn flat .

 

had the hearing at 11.30 this morning .

bw legal's representative asked for an adjournment on the grounds that they needed to get the details of the debt from the original creditor (Lloyds).

because apparently the debt had been reassigned in the last few days (after the sd had been issued) .

 

except that the judge saw right through this , asked bw legal why a SD had been issued if they knew nothing about the debt .!!!!

 

He then went on to qualify their actions as gross misuse of insolvency laws and set the stat demand aside .

 

a big weight of my mind just before xmas but will have to see if bw legal tries something else .

 

should I report this to the oft and how do I go about it?

 

Many thanks to all for your ideas and help .

 

best regards

and merry xmas

[AndyOrch]

Well done remzz...Thread title amended to reflect the outcome.

 

Regards

 

Andy

[dx100uk]

GREAT RESULT!!

 

dx

[fkofilee]

Amazing result! Congrats and I'm glad you stuck it to Lowell and BW Legal!

[mikeymack2002]

They are not fit to hold a license report them now you have it from a Judge you may get a much better resolve on this...

[remzz]

How do I make a donation to CAG?