CCA non comp - gargoil vs lowell financial

[gargoil]

I haven't posted about this but getting to the stage I may need some advise or help so heres the story so far:-

 

1) 18th August 2006 CCA request sent to Lowell Financial

2) Lowell sent payment demand although in default

3) 5th October, sent following letter to Lowell also CC'd to West Yorkshire TS:-

 

Lowell Financial

PO Box 172

Leeds

LS11 9WS 05/10/2006

Your ref: XXXX

 

LETTER BEFORE ACTION

 

Dear Sir/Madam,

You have now failed to supply me with a copy of the original signed agreement for the alleged “debt” you are trying to enforce. This request was sent on 18/08/2006 together with the statutory fee of £1.00.

 

I have given you more than enough time to supply the original signed agreement and you have now exceeded the allowed time. By not supplying the documentation I believe you have now committed a criminal act under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974.

 

You are reminded that you were obliged to supply these documents, whether you are the original creditor or not, under section 189 of the CCA 1974.

 

I do not acknowledge any debt to Lowell Financial Ltd/Lowell Portfolio Ltd.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

I will therefore no longer be making payments against this "debt" as it is unenforceable. I now consider the matter closed and no further correspondence regarding payment will be entered into. On 2nd October you sent me a letter demanding payment of this alleged debt, even though you are in default. I now feel you have left me no choice but to report this matter to Trading Standards

 

Additionally I require the removal of any defaults entered against my name. You have 14 days to comply and confirm in writing or I will apply to my local Sheriff Court for an order to enforce compliance, together with damages at the discretion of the court.

 

Yours Faithfully,

 

gargoil

 

CCWest Yorkshire Trading Standards Service

 

Also sent this letter to West Yorkshire on the same date:-

 

West Yorkshire Trading Standards Service

Trading Standards Complex

PO Box 5

Nepshaw Lane South

Morley

Leeds

LS27 OQP

 

Dear Sir/Madam,

 

I am writing to complain about a company Lowell Financial, resident at PO Box 172, Leeds, LS11 9WS. This company have been contacting me in order to recover a debt which I do not acknowledge to them.

 

On 18th August 2006 I wrote to Lowell Financial requesting a copy of the original signed credit agreement in respect of an alleged debt this company had been contacting me about. This is my right under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit) I enclosed the statutory amount of £1 (by postal order) as payment fee, PO Serial Number 18500528.

 

Lowell Financial are obliged to supply these documents, whether they are the original creditor or not under S189 of the CCA 1974.

 

On 5th September 2006, Nigel Beaven a Lowell Financial collections advisor acknowledged this request by letter. The letter stated that the information would be sent out to me and they would be in contact shortly after.

 

Lowell Financial failed to provide the requested documentation within the prescribed time. On 2nd October 2006 Nigel Beaven, again acting on behalf of Lowell Financial sent me a letter stating I was in arrears in regards to payment of this “debt”. The letter also stated that Lowell would have no option but to take further action against me to recover “outstanding monies.” if payment was not received within 3 days.

 

On 4th September a representative of Lowell Financial telephoned me also requesting payment. I informed the gentleman that I would not be making payment nor did I acknowledge this debt.

 

I believe this company have now committed a criminal offence as they have failed to provide a copy of the original signed credit agreement and have been in default for more than one month since the initial 12 working days allowable under the above mentioned legislation expired.

 

A default has been recorded on my credit file in respect to this matter and I would like to have it removed as I believe it has been applied unlawfully. Also I believe that Lowell Financial will continue to pursue me both by telephone and letter to repay this alleged debt.

 

Today I have written to them asking them to remove this default and to confirm to me that I owe them no money. I would you to investigate this company regarding this matter and take action against them. I am of the opinion that they are unfit to hold a consumer credit license.

 

I have included a copy of the cca request sent to Lowell Financial on 18/8 and also a copy of the complaint/ non compliance letter I have sent them today (5th September.)

 

Yours Faithfully

 

Gargoil

 

 

CC Lowell Financial

 

[gargoil]

4) Sent Data Protection Act S.A.R - (Subject Access Request) away to them

5)16/10 sent the following letter to Lowell Financial as they continued to telephone me and claim not to receive the previous letter.

 

Lowell Financial

PO Box 172

Leeds

LS11 9WS 16/10/2006

Your ref: xxxxx

LETTER BEFORE ACTION

 

Dear Sir/Madam,

Despite my previous letter of 5th October 2006 you have still failed to supply me with a copy of the original signed agreement for the alleged “debt” you are trying to enforce. This request was sent on 18/08/2006 together with the statutory fee of £1.00.

 

I have given you more than enough time to supply the original signed agreement and you have now exceeded the allowed time. By not supplying the documentation I believe you have now committed a criminal act under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974.

 

You are reminded that you were obliged to supply these documents, whether you are the original creditor or not, under section 189 of the CCA 1974.

 

I do not acknowledge any debt to Lowell Financial Ltd/Lowell Portfolio Ltd.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

I will therefore no longer be making payments against this "debt" as it is unenforceable. I now consider the matter closed and no further correspondence regarding payment will be entered into. On 2nd October you sent me a letter demanding payment of this alleged debt, even though you are in default. I now feel you have left me no choice but to report this matter to Trading Standards

 

Additionally I require the removal of any defaults entered against my name. You have now have 7 days to comply and confirm in writing or I will apply to my local Sheriff Court for an order to enforce compliance, together with damages at the discretion of the court.

 

Yours Faithfully,

 

Gargoil

[gargoil]

6) 23/10 Due to continued computer generated letters from Lowell I sent away the following letter to Lowell.

 

Lowell Financial

PO Box 172

Leeds

LS11 9WS 23/10/2006

Your ref: xxxxx

 

Dear Sir/Madam,

Despite my previous letters you have still failed to supply me with a copy of the original signed agreement for the alleged “debt” you are trying to enforce. This request was sent on 18/08/2006 together with the statutory fee of £1.00.

 

I have given you more than enough time to supply the original signed agreement and you have now exceeded the allowed time. By not supplying the documentation I believe you have now committed a criminal act under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974.

 

You are reminded that you were obliged to supply these documents, whether you are the original creditor or not, under section 189 of the CCA 1974.

 

I do not acknowledge any debt to Lowell Financial Ltd/Lowell Portfolio Ltd.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

I will therefore no longer be making payments against this "debt" as it is unenforceable. I now consider the matter closed and no further correspondence regarding payment will be entered into. On 2nd, 13th and 20th October you sent me computer generated letters demanding payment of this alleged debt, even though you are in default. I will now no longer communicate with you on this matter and will ignore all further computer generated letters.

 

I have now reported this matter to Trading Standards.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested. I will counterclaim for an order to enforce compliance of default removal, together with damages at the discretion of the court.

 

I now reserve the right to start my own legal action to recover monies paid to you, unlawful charges that were applied to this account, default removal and damages at the courts discretion.

 

Yours Faithfully,

 

gargoil

 

As I a had heard nothing from TS I sent them a re-edit of the letter sent to them previously.

TS phone dme on friday (27th Oct) but I was out unfortunately. they left a message to call them back on 01132898217 which I will call on Monday. Lowell have continued to try and phone me. Will speak to TS and then decide what course of action to take!!

[Matheos95]

Wow fascinating thread and great letters - keep us posted as Im about to start something similar.

 

GOOD LUCK

[Guest willowb]

73 days since you requested a copy of the origional agreement? file a claim me dear;) what'ya waiting for? let them know you are not bluffing (as they hope) and take them to Court. It's my understanding (someone please correct me if I'm wrong) that even if they do supply you with the agreement now or at Court it's too late, they have failed to uphold the law and you win.

 

Wxx

[gargoil]

Received a letter from TS today!

 

Dear gargoil

 

Please be advised that I have spoken to Lowell Group regarding your concerns and have been advised the following:

 

The copy of the agreement to which you refer was requested from the original creditor on 5th September, the date on which your request was received.

 

On 19th October, as a response had not been received, a chase letter was sent, to which, as of today's date, Lowell has not received a reply.

 

The company has put your account on hold until they have received a copy of the original agreement. As soon as this is received they will notify me.

 

I am unable to discuss the account in greater detail as I do not have written authorisation from yourself. Should this matter remain unresolved by the end of November please get back to me.

 

Yours sincerely

 

West Yorkshire TS

[gargoil]

They sent me a letter today, despite telling TS the account is suspended saying someone will be visiting my home. Oooh scary!!!!

 

I'm annoyed now so will be submitting court papers this week. Going to spend this afternoon drafting.

[gargoil]

Still not submited court papers. Since my last post they have sunk to new lows. They have given up phoning me however still receiving letters. Receive d2 last week saying they were sending out people to my house. Today I received a post card (from the postman!) saying that someone had visited my home but I was out. However it was delivevered with the rest of my mail and said they would call back between 930 and 530. The give away is that it has Lowells PO box number and phone number which I've to call funnily enough if "inconvenient!". Will be recontacting TS in due course!!!

[gargoil]

Letter to TS today, cc'd to Lowell...

 

West Yorkshire Trading Standards Service

Trading Standards Complex

PO Box 5

Nepshaw Lane South

Morley

Leeds

LS27 OQP

 

1/12/2006

 

Dear Pat,

Thank you for your previous letter in regards to my complaint against Lowell Financial. In this letter you advise that you spoke to Lowell and they agreed to suspend the account until they produced an original signed agreement relating to this account. You advised that I should contact you again if this matter was not resolved by the end of November.

 

I now need to advise that Lowell did not “suspend” or put a hold on this account as they have continued to try and phone and write to me. I believe it is getting to the stage where they are harassing me and I am considering making a complaint to the police.

 

I believe the tactics they are now using contravene parts of the OFT guidelines on debt collection. With this letter I am including 2 letters they sent me on consecutive days, 20th and 21st November advising they would send someone to my home. As you can imagine this is a very alarming letter to receive. This morning I received a postcard delivered by the Royal Mail. I have included this postcard for your reference. It is clearly from Lowell Financial (PO Box and phone number both registered to Lowell!) and is an attempt to distress me by appearing to be delivered by a home visit agent. I think this clearly contravenes the OFT guidelines of debt collection in that it is meant to “trick” me into phoning them and to distress me.

 

I am now considering making a complaint directly to the OFT and would appreciate your assistance in this and if need be I will take personal legal action against Lowell as they still have a default registered in my name for a debt I do not acknowledge.

 

I have included my telephone number above but as I am rarely in the house it may be easier to contact me by email. My email address is [email protected]. Thank you in advance for any further assistance.

 

Best Regards

 

gargoil

[gargoil]

Hastily drafted letter to Lowell....

 

 

Dear dickheads,

Despite the fact you have still failed to supply me with the original signed agreement and I believe to have now committed a criminal offence you continue to harass me. I am now making a complaint to get a crime number at my local police station in regards to this matter and am also providing a record of all calls and correspondence to both trading standards (who I believe have already contacted you.) and the office of fair trading.

Please refer to the attached letter which was sent to trading standards on 2nd December 2006.

I do not acknowledge any debt to your company so will be making no payments or entering into no dialogue with you regarding payment no matter how many computer generated letters you send to me. Please feel free to commence legal action if you feel you can recover this amount through the courts. However I will be making a counterclaim in the event of this asking for damages incurred due to the unlawful default you have registered in my name. A pre estimate of this amount is over £5000.

[natheyabdn]

Wow!

 

Gargoil, this is such a helpful thread - i really hope you get everything sorted!

 

Im soon to be pressing ahead with a legal claim to BoS for the same kind of thing!!

 

Nathe

[gargoil]

Received reply from TS, I am now unsure on how to proceed but doubt that Lowell have the documentation and are just saying this to put me off legal action.

 

Dear gargoil

Thank you for your letter dated 1 December.

I have today received a confirmation from the company that a true copy

of the original agreement has now been secured and a copy of this will

be duly forwarded.

 

Unfortunately due to a "fault" in the computer system although the

account was indeed "put on hold" as discussed, the computer continued to

send out correspondence because there was an agreed payment plan in

place. The company apologises for this.This would suggest that the

original debt has been acknowledged within the 6 year time limit and as

such the debt is no longer statute barred.

 

I am unable to discuss the account in greater detail until I receive

authorisation from yourself. If you wish me to explore in greater depth

please email me stating that you are happy for Lowell to disclose your

account details in full.

 

Kind Regards

 

TS

[noomill060]

It will be interesting how long it takes Lowells to produce their copy, wont it?

 

They've had since August to do so and are still in criminal default.

 

Why is no action taken against them?

[lookinforinfo]

In view of the latitude often given to these companies to produce even

legally requested data, I tend to think it is often better not to instigate

matters yourself.

They were in the position that should they want to enforce the debt, they

would have to take you to court to prove there is a debt, and to explain

why they committed an offence by not complying within the stipulated time.

So the longer they take to get you to court, the more difficult it is for

them to justify, and the greater the offence, and the greater the fine imposed for the offence. The maximum fine is £5000, so if your debt is

around that figure or less, they are unlikely to ever take you to court.

 

By alerting TS so quickly, you have given the DCA some sort of tenuous

reason for the delay. I accept that to reinstate the debt they will still have

to take you to court, and they will have committed an offence-several

offences in fact, since they have been harassing you whilst the account is in dispute.

If they do take you to court one of the things you must ask them to produce

is the computer program that allows them to put the account on hold, while

still churning out demand letters at the same time. If it is a fault in the program, then there should be proof that other

accounts similar to yours [ie in dispute with payment plan in place but demands still being sent] have been treated in the same way. Then you will

require them to produce when the program was installed and when it first came to light that there was a problem, and why it was not rectified straight away.

In fact, if the next time they write to you threatening legal action or for you

to reinstate your payments, send an S.A.R - (Subject Access Request) asking for that info so that "you can

continue your dialogue with TS, and it will be necessary as part of your defence in court."

[runtothehills]

Thank you, thank you, thank you, for helping to put a smile on my face.

 

I have just had the privilege of receiving a demand for an apparent outstanding balance for Barclaycard (of which I paid in 2004) from the Lowell group and have had three demands in less than three weeks, I wrote to dispute their claim but was flummoxed to what else I should do. Reading your threads have helped me so much and given me a sense of relief that you can fight these bullies and that's what I'm going to do

[gargoil]

Well received requested document several months late. Am unsure on what I should do now? Should I invit ethem to tak ecourt action and make them a token offer as settlement?

[lookinforinfo]

Don't pay anything or contact them. At the moment the debt is unenforceable

without a court order. They will have to explain the delay; prove the debt;

admit committing a criminal offence and be liable for a hefty fine, with no

guarantee the judge will grant them permission to reinstate the debt.

Especially if you can show that they have been harassing you, and also

have breached other Acts and OFT guidelines.

[noomill060]

As above.

 

Do nothing. THEY are the ones facing criminal charges, not you.

 

If they're stupid enough, let them put their neck in the hangman's noose in their own good time.

[gargoil]

Haven't heard from this lot since November last year!!

[Guest willowb]

Hi hun:) .....are you going to leave it like that or do you want to pursue something in writing from them?

 

Let sleeping dogs lie???

 

Wxxx

[Guest willowb]

Actually, there's a default on this account isn't there? have you thought about sending them a statutory notice? At the moment the debt is unenforceable until they can prove it exists and therefore a stat notice re the default would be ok.

 

Wxxx

[gargoil]

Hi willow, I know its probably best to let sleeping dogs lie, just wondering how I can get rid of the default from this one!?!?

[gargoil]

Guess who crawled out the wood work and started contacting me again. They have sent me a copy of the original agreement - 2 years late and no deed of assignment. Any advice on what I should do?

 

Cheers

 

Will

[noomill060]

Can you scan this and post it up using photobucket.

 

Two years on, the knowledge of what makes an agreement enforceable is quite outstanding.

[noomill060]

Remove or cover up all your personal details- name- address- account number etc.