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

[AndyOrch]

Just the one amendment bgizz.... dont forget to insert/ mark your exhibits and attach.

 

Well done

 

 

Regards

 

Andy

[bgizzle]

Thanks Andy. Forgive me for being dim but when you say mark/include exhibits. Do you mean I need to print/attach/provide the rulings for BMW FINANCIAL SERVICE (GB) LIMITED vs. HART, Carey vs HSBC and section 127 (3) of the CCA alongside the docs/evidences already provided by BW?

[AndyOrch]

Yes anything you refer to in a witness statement...mark it as (see Exhib a1/a2 etc) and attach the information relied upon.Then hi light the relevant section in the exhibit that you rely on

[bgizzle]

Understood. Do I need to expand on the fact that the supposed agreement is nothing more than an application form? or on any other areas?

[AndyOrch]

At 10 you could add that the agreement is deficient of the prescribed terms and therefore the agreement does not comply with s61(1)(a) Consumer Credit Act 1974.

[panther12]

The issue of a default is a procedural requirement under cca and is issued before the creditor can demand full payment. It is a seperate issue to the cause of action for the purpose of the Limitation Act otherwise a creditor would simply not issue any DN to prevent SB under the Limitation Act which is complete nonesense and not what the writters of the Act intended. I've not read the full thread but do you have a copy of the agreement and its wording regarding what happens if you miss payment.

[bgizzle]

Hi Panther. The supposed CCA is on Page 3 of this thread and is post 71. Sorry I don't know how to link to an attachment on the same thread.

[bgizzle]

Hi All. Anyone know where I can find a pdf of Reeves v Butcher and some of the other documents?

[AndyOrch]

Hi All. Anyone know where I can find a pdf of Reeves v Butcher and some of the other documents?

 

 

[ATTACH=CONFIG]57639[/ATTACH]

[bgizzle]

Thank you Andy

[knet2020]

Hi,

I don't want to hijack this thread however as I feel my situation is rather similar (albeit earlier in the process)

 

I have a question regarding Default NOTICES having read the above I note that the date being used as the cause of action = default date (claimant seems to choose this) my question is simply this:

 

If a default NOTICE (under a standard CCA) was issued on 01/01/xx which states remedies must be taken to bring the account back to good standing by 14/01/xx and states what action MAY be taken eg full repayment etc.... If the creditor then updated their account to say you have defaulted on 28/01/xx in the absence of the specific agreement would it not be a lawful defence to argue the clock starts on the 14/01/xx rather than 28/01/xx (as this seems to be a DCA current tactic)?

 

“Who ever heard, with reference to any Statute of Limitations, that a creditor could enlarge the time for suing indefinitely by omitting to do that which it is his duty by statute or common law to do? It appears to me that we ought not to adopt a construction of the statute that leads to such a result, unless we are driven to it.”

I am not a lawyer but it seems to me that the NOTICE of default DATE (as in the date account must be put right eg 14/01 in example above) would/should be a lawful defence, as this is the date a defendant is NOTIFIED of (SHOULD get as a letter) whereas the ACTUAL default DATE appears only to be used on internal systems and/or a credit reference file.

 

I suppose the similar issue is a letter before action, the courts accept that if you state a date when action will start, that is the date YOU can take ACTION if you use anything later is YOUR prerogative.

 

Are we not in the realms of 'last in the post'? Or am I miles out?

 

I will be keeping an eye on this thread for the outcome however it seems this issue will need to be decided at a higher level if the DCA's are using the BMW case in CCA recoveries.

 

fao bgizzle I wish you the very best and will be rooting for you.

[dx100uk]

its always best to almost disregard anything to do with any default notices or dates as such

toward statute barring etc.

 

 

the usual rule that works is to findout your last payment/use of the 'account' and add a month or two to that date.

 

 

panthers post 131 explain it so much better than me...

 

 

dx

[bgizzle]

Thanks knet2020 - I'll keep all updated.

 

With regards to your post I second what dx has said considering that the default notice/date is procedural and often these guys wait many months before taking action.

[AndyOrch]

DCAs wont argue the cause of action...they simply dont have the paperwork/paper trail to verify....and most of the OCs will have dumped the data after off loading the delinquent accounts.Be wary if the claim is from the OC though.

 

Andy

[knet2020]

Lowell Portfolio V Bgizzle

Reply to Defence

 

The exhibit in particular evidences that the defendant defaulted on his contractual payments to the creditor on 10th Nov 2008 after taking into account the defendants last payment of £29 in July 2008 which is shown on the statement of account.

 

The Claimant believes that the facts stated in this reply to defence are true. I am duly authorised by the claimant to sign this statement

XXX

 

After reading the full defence they provided to you at http://www.consumeractiongroup.co.uk/forum/showthread.php?433973-BW-Lowell-claimform-old-CapitalOne-debt&p=4708766&viewfull=1#post4708766

 

It seems there own defence (as submitted) counters the 'cause of action' with refence to Limitations Act. A good Judge should no doubt spot this but it may be worth noting this is any witness statement.

 

On a separate note is this not in the realms of contempt of court as the statement they make about being true is plainly hokum (for a solicitor) or at least costs (Litigant in Person rates)?

 

I understand the moral v legal issues here but as Lowell et al seem to be making a habit of this approach (including renaming the original creditor details on Credit Account files eg Experian etc) would this not be grounds to the above. I know most will be happy the claim of SB applies and that is the end of the matter but if a pattern is showing it certainly must be grounds for further action via professional associations / FCA etc

[bgizzle]

Good spot re: their defence. I referred to their statement in my WS.

 

Re: Claiming Costs for - Litigant in Person. How does it normally work? Do I ask for claimant to pay during the hearing assuming Judge agrees with me?

[knet2020]

I would kindly suggest that is something above my pay grade so to speak, indeed if this is settled as SB then you wouldn't be able to claim as technically (I may be wrong) but the court would strike out the claim which is not a 'win' others on here may be more familiar with the LIP procedures etc

[bgizzle]

fair enough

[bgizzle]

Update: Received today in the post a Notice of Discontinuance from BW Legal. I will need to verify same with the court.

[dx100uk]

and another fleecing speculative claim bites the dust!

 

 

dx

[bgizzle]

They caused me a lot of sleepless nights. I'll be glad to see the back of them when court confirmation is received. Thanks to all who have helped me along the way. Andy & site team are up for sainthood I tell you

[dx100uk]

now go get that PPI back

 

 

dx

[AndyOrch]

Excellent news Bgiz...delighted for you....

 

Thread title amended to reflect the outcome.

 

Rest assured the court will receive it.

 

Regards

 

Andy

[bgizzle]

Thanks Andy.

 

@dx - your comment re: PPI - is that a possibility?

[dx100uk]

well £384 seems mighty low for a PPI refund.