BW/Lowell claimform - old CapitalOne 'debt'***Claim Discontinued***

[bgizzle]

Thanks DD. I'd very much appreciate that.

 

Just for my knowledge also i'd be keen to understand what the correct CCA should look like.

[Desperate Daniella]

Hi bgizzle,

 

 

It's more difficult when they've issued the claim, but as you are going to defend they will have to pay more fees to the Court in order to go ahead, so if you let them know you are clued up they may just decide not to continue.

 

 

The points you need to raise in your letter to BW are:

 

 

1. They are well aware that Lowell have not provided a copy of a properly executed credit agreement which complies with the Regulations of the Consumer Credit Act 1974.

 

 

2. Then you say that you have been advised that the Capital One so-called agreements which were issued in the late 1990s and early 2000s were essentially application forms which did not contain the Prescribed Terms, and this is why Capital One and the debt collection agencies to whom they have subsequently sold the accounts have never been able to provide anyone with a copy of their agreement, preferring instead to provide newly typed so-called agreements on plain paper which are not signed by the account holder, or 'cut and paste' so-called agreements showing only parts of an application form.

 

 

3. You refer them to the Waksman judgment in Carey v HSBC, Paragraph 234 (4) which states that where an agreement has been varied by the creditor a copy of the original agreement must be supplied.

 

 

4. Lowell have an obligation under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008) to advise you if they hold, or have ever held, a properly executed regulated credit agreement pertaining to yourself. If they have such an agreement, why have they failed to provide it in its entirety?

 

 

5. A signature box photocopied on to a piece of paper cannot in any way be regarded as an enforceable credit agreement and you are sure they will advise their clients accordingly.

 

 

 

 

Try that to start with.

 

 

(You don't have to explain what the Prescribed Terms are for their benefit. They know what they are. My head was spinning for about four months with Prescribed Terms, Regulations, etc., when I first joined CAG so don't worry about all that at this stage. Better just to concentrate on defending the claim.)

 

 

DD

[Desperate Daniella]

Sorry, you asked what a proper agreement should look like. They all vary, but post 5 on this thread explains it very well:

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?163897-Consumer-Credit-Act-1974-(CCA-74)

[oleg]

No need to write begging letters pleading for your life.

 

BW know exactly what a CCA should include. Your defence alerts them to the fact that you're aware and armed. If they persist regardless, they can easily be exterminated via a very simple witness statement. Also pls note, they frequently say they'll go ahead but withdraw at last minute.

 

See what others with experience of BW think.

 

Capital One's old application forms are a doddle to throw out: you're in no danger whatsoever.

[oleg]

Meant to say, the above is back-up materiel in addition to the S B argument, which you should in all probability win. If I recall correctly BW have tried that on before and lost.

[Desperate Daniella]

bgizzle would rather avoid Court if possible. I can understand that.

 

 

Ignoring Lowell might work for you but it frequently doesn't work for other people. They have recently been issuing Statutory Demands like confetti, and they do issue Court claims when they know they have unenforceable agreements as is illustrated only too clearly here. They hope to get lucky and sometimes they are.

 

 

Equally there have been people on CAG who have gone to Court and despite the fact that agreements have been unenforceable the judge has not thrown them out but has decided to take a moral viewpoint: "You admit you had the money so you must repay it." Therefore they have given judgment to the Claimant. I've seen enough cases on CAG where people who had a sound defence have lost simply because the judge chose not to interpret the law correctly.

 

 

I can't see that it hurts to let them know that you are aware and armed. I've always found they have chosen not to take me on precisely because of that.

[Desperate Daniella]

Yes, it should be statute barred, of course, but I've never been able to find a case where a judge has ruled on exactly where the six years starts from. It's thought to be the date from when they have a cause of action against you and they are clearly working on the date of the default.

[bgizzle]

Thanks DD and Oleg. I will review all the information you have provided. My preference would be to avoid court as a whole BUT if it comes to it then I'd like to win.

[Desperate Daniella]

You should win.

 

 

My only concern is the judge lottery.

[bgizzle]

Meant to say, the above is back-up materiel in addition to the S B argument, which you should in all probability win. If I recall correctly BW have tried that on before and lost.

 

Oleg - Can you please expand on the point above. Is there a thread on the BW & SB scenario you refer to that you can share?

[oleg]

I did say "if I recall correctly" not that I'm 100% certain. My laptop is on the blink so I can't access my records. Try searching other BW cases in the legal section.

 

In any event I think what's more important is for you to decide whether you think it best to ward them by persuasive letters or just to respond on a matters arising basis to their attempts at brinkmanship via the courts.

 

If you haven't yet read other B W cases , it's in your strong interests that you do.

 

If Daniella is concerned about judge lotteries, I guarantee you so are B W. Especially if they've had to stump up a £410/550 hearing fee.

[Desperate Daniella]

That's why I think if people show they know their stuff and will be fighting back BW may choose not to pay the next lot of court fees. If you look like a tough cookie they may think twice. Personally I always try to make them think I'm going to be the b**ch from hell if they take me on and I truly believe that's why they have backed off.

[AndyOrch]

Now that both parties have filed DQs and mediation has failed...you need to look at your Notice of Allocation and follow the directions imposed by the court...this will be submitting a witness statement and exchanging disclosures...this must be done by the dates stated.

 

This claim is already going to court and trial so forget writing to the claimant informing them of their errors and your intended defence points as a method to put them off...its pointless...you have already submitted your defence.

 

Regards

 

Andy

[oleg]

This is what I've been trying - not very successfully it seems - to convey. Once it's "gone legal" it stays legal, pointless to argue along other dimensions.

 

You would do well b g to focus your mind on your witness statement. Study other ones to gain an idea of how they work then attempt a dummy run at your own.

[Desperate Daniella]

I am only saying what has worked for me.

 

 

Even when a court case I was involved in was proceeding through the various stages I continued to bombard the other side's solicitor non-stop with questions and in the end they gave up before it ever reached court. If they wouldn't answer a question, and there were a lot of questions they didn't want to answer, I went on and on and on until they did. I did the same with regard to any documents I wanted to see and in the end they had to provide them. The solicitor kept saying he wouldn't litigate through correspondence, but I still kept on at him. (I don't think he minded actually as he charged his client about £30,000 in fees for all the time he had to spend on me!)

 

 

They could have afforded a barrister for the day's Hearing and I couldn't, and therefore I didn't want it to go to Court.

 

 

Different approaches work for different people. This is just what has worked for me.

 

 

DD

[birchave0]

Yes, it should be statute barred, of course, but I've never been able to find a case where a judge has ruled on exactly where the six years starts from. It's thought to be the date from when they have a cause of action against you and they are clearly working on the date of the default.

 

I had a court case last year with First Credit who are Lowells under another name.

 

The account was time statute barred.

 

 

This was the main line of our defence.

 

 

I ended up in court on three different occasions with 2 different judges.

 

Both of them agreed the time statute barred came into play from the LAST payment I had made.

 

 

Although the bank continued to help themselves with funds from my current account to pay the credit card each month

, both judges said they did NOT count!

 

Eventually I moved my current account to stop this happening,

however they managed to help themselves to nearly 6 months of payments.

The judges wouldn't accept these as evidence of acknowledging the debt!

 

This was a case were the account became time statute barred only two months BEFORE they filed a claim against me.

They thought they would win because of the payments taken by the bank, they were wrong.

 

We wiped the floor with them and won!

 

So hopefully this is generally how it's worked out.

 

Good luck!!!

[Desperate Daniella]

That is amazing! Fantastic! Wonderful!

 

 

There is a mega-long thread on this argument and so much disagreement. If I post the link to that thread here, please could you re-post what you have said above?

 

 

DD

[birchave0]

sadly the thread reached over 70 pages and was on another, much smaller forum, the thread was also protected from public view to stop the enemy seeing what we were up to.

 

However anything I can help with, just ask! I'm no expert but we did win

[birchave0]

That is amazing! Fantastic! Wonderful!

 

 

There is a mega-long thread on this argument and so much disagreement. If I post the link to that thread here, please could you re-post what you have said above?

 

 

DD

 

yes can do, send the link lol

[Desperate Daniella]

http://www.consumeractiongroup.co.uk/forum/showthread.php?413904-Statute-Barred-discussion-thread

 

I was particularly interested in the off-setting argument you had.

 

 

As in your situation, one of the banks kept off-setting, but every time they did it I reported them to the FOS

and they had to refund it.

 

 

They only defaulted me when they finally gave up trying that little tactic so the default was put on about seven months after the final payment.

 

 

They sold the account on, and I imagine that the DCA involved will be thinking about the default date given by the bank.

 

 

I've always intended to use the SB argument if I had to so it's great to know that you won your case on the basis of the final payment date.

 

 

Thank you.

 

 

DD

[birchave0]

http://www.consumeractiongroup.co.uk/forum/showthread.php?413904-Statute-Barred-discussion-thread

 

 

I was particularly interested in the off-setting argument you had. As in your situation, one of the banks kept off-setting, but every time they did it I reported them to the FOS and they had to refund it. They only defaulted me when they finally gave up trying that little tactic so the default was put on about seven months after the final payment. They sold the account on, and I imagine that the DCA involved will be thinking about the default date given by the bank. I've always intended to use the SB argument if I had to so it's great to know that you won your case on the basis of the final payment date.

 

 

Thank you.

 

 

DD

 

I'll have a read of the above when I get 5

[Desperate Daniella]

Please do. It was a right old squabble! It started on another thread and then the mods started a new thread on the issue to save the original poster from everyone banging on. Their problem had got lost!

[bgizzle]

Thanks all for your inputs. I now understand clearer the point Oleg was trying to make. I will put my effort into the witness statement. @birchdave0 - Did you have a barrister for the court date?

[bgizzle]

Now that both parties have filed DQs and mediation has failed...you need to look at your Notice of Allocation and follow the directions imposed by the court...this will be submitting a witness statement and exchanging disclosures...this must be done by the dates stated.

 

This claim is already going to court and trial so forget writing to the claimant informing them of their errors and your intended defence points as a method to put them off...its pointless...you have already submitted your defence.

 

Regards

 

Andy

 

@Andy - the notice allocation I received in Dec doesn't have any dates for WS to be submitted just dates for DQ form. Is it fair to assume that I'll receive another notice allocation?

[birchave0]

Thanks all for your inputs. I now understand clearer the point Oleg was trying to make. I will put my effort into the witness statement. @birchdave0 - Did you have a barrister for the court date?

 

no, I was litigant in person