Lowell/BW Legal - claimform - old CAP1 card 'debt' [they tried an SD 2013 and lost]

[Octian]

My wife was handed an SD for me from Lowell's yesterday by a process server who than asked my age and what I looked like.

Assume they needed to swear an oath they have served it personally.

It's for an old debt (probably less than 6 years but only just) from Capital One for £1600.

 

The odd thing is I started paying Capital One about 18 months ago - weekly on the internet.

I carried on about 6 weeks

got a letter saying I hadn't been paying etc - so I stopped.

 

 

After much delay Lowell's eventually agreed I had been paying and I said I would restart

- BUT they refused to accept payments via the internet

and would ONLY accept direct debit or continuous debit card authority.

 

Having read a lot about Lowells I really didn't want to give them the details

- beside

- I only paid them when I knew I had the money.

My bank would have charged me £35 in penalty charges if there wasn't the £20 in the account.

 

So where do I go from here ?

 

 

I am sending out a standard CCA request to Lowells which they should reply to within 14 days.

I am expecting them to write to me again

- so should I deny receipt of the DC as it wasn't correctly served ?

If so - will they petition ?

[42man]

The cca request was the right thing to do,

I also suggest a SAR to the original creditor,

what a pity you restarted paying recently,

they fact they won't accept your payments is completely unreasonable of them..

...you really should get this set aside,

 

 

to do this you will need forms 6.4 (set aside) and 6.5 (witness statement),

you have to set aside the demand within 18 days of receipt of the demand,

forms 6.4 and 6.5 need to be completed and taken in (or sent by recorded delivery) to the nearest court to you

(that handle bankruptcies and insolvencies) you can check here to see if yours does - http://www.justice.gov.uk/about/hmcts

 

However you should be prepared to stand up in court and argue your corner against an organisation

who continually flout the OFT guidelines and go against their own code of conduct.

 

 

You will find plenty of threads on these forums and a few defences too,

but you need to spend some time understanding what is being said.

 

 

Be careful about denying receipt of the stat demand as it has been known for the truth to be fabricated.....

 

If you need some help with the witness statement then please do ask....

Edited June 16, 2012 by 42man

[42man]

Apologies you can find forms 6.4 and 6.5 here - http://www.bis.gov.uk/insolvency/About-us/forms/england-and-wales

 

And info here for filling out 6.4 - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489#post1749288

[Octian]

Thanks for the help. CCA has gone off. On the application to set aside - what grounds should I state ?

[42man]

Do have a look at these

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?331758-Help-with-Statutory-Demand-from-Lowell-Investigations-Hampton-Legal-Please-Help!/page2

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?309388-capquest-statutory-demand

[Octian]

On the application to set aside - should I mention that Lowells have actually refused to accept payments or will that compromise the case to chellenge the debt ?

[42man]

If it was me I certainly wouldn't go there....

[Octian]

OK

- went to court office to submit application to set aside with all supporting documents.

 

 

Chap said it would be for a judge to decide if there will be a hearing or not ?

 

 

I would be notified accordingly.

 

 

Is this normal practice ?

 

 

I thought there would always be a hearing.

 

 

So what if the judge decided on no hearing

- would the set aside be granted or could they petition ?

 

 

Confused.com !

[42man]

I have heard on I think 1 occasion only where a judge has ruled in favour of the set aside. Other than that it is usual that it goes to a hearing

[Octian]

Cheers - you're a star.

[Octian]

OK - still no response on the CCA after nearly a month.

 

They have telephoned me about 4 times but I've refused to talk and asked them to write to me if they have anything to say.

 

Today - probably a standard letter -

 

'You haven't contacted us therefore we 'will' shortly be submitting a bankrupcy petition bla bla bla - offering a 20% discount for full settlement etc.

 

I've drafted a letter back saying they received a letter recorded delivery on 19th June but haven't bothered to reply

and that a set aside application had been submitted to my local court.

 

Also said to stop telephoning as I will only communicate in writing.

 

Is that the correct course of action for now ? I haven't sent the response yet so can modify if required.

[dx100uk]

hoho a discount letter

 

means they'll go nowhere near a court

 

ignore them.?

 

 

dx

[Guest]

OK - went to court office to submit application to set aside with all supporting documents. Chap said it would be for a judge to decide if there will be a hearing or not ? I would be notified accordingly. Is this normal practice ? I thought there would always be a hearing. So what if the judge decided on no hearing - would the set aside be granted or could they petition ? Confused.com !

 

and, 'If the application to set aside the statutory demand is not dismissed immediately, the court will fix a time for hearing the application and give 5 business days’ notice....'.... 'If the court dismisses the application to set aside the statutory demand, it must make an order authorising the creditor to present a petition immediately or at a specified date' - 'stat demands' guide doc here http://www.bis.gov.uk/insolvency/Publications

there are lots of sd threads atm with great info. also check out eg nationaldebtline site etc.

Edited July 14, 2012 by Ford

[dx100uk]

the set aside is already in ?

 

dx

[BazzaS]

Well they have not only issued a SD but also served it properly rather than sending it by post so they could be serious.

.

 

Have they served it properly?.

What if Octoan's wife accidentally misunderstood, and described someone 20 years older/younger, and 4 inches different in height when asked to describe him?

 

My wife was handed an SD for me from Lowell's yesterday by a process server who than asked my age and what I looked like.

[\QUOTE]

 

How (/ did) she describe you?

[fifthdimension]

'Served properly' means making reasonable attempts at personal service rather than just sending it by post. The main point is the recipient getting it as opposed to receiving a BR petition out of the blue without ever seeing a SD. Once you admit having received the SD then there's probably not much point debating the exact manner in which it was served. Fortunately it looks like it was set aside in this case.

[Guest]

'.......... Fortunately it looks like it was set aside in this case.

 

has the sd been setaside?

 

 

had thought OP had just recently submitted the application to setaside,

 

 

and there was no decision either way yet?

 

 

or does dx's post #16 mean that the set aside was granted?

Edited July 15, 2012 by Ford

[dx100uk]

went to court office to submit application to set aside......

 

my post says the set aside is already in...with ref to above.

 

not granted

 

this could get interesting me thinks

 

why are they offering a discount ?

 

knowing cap1 well

i bet lowlife know there are heeps of unlaful PENALTY charges [&p'haps PPI]

to reclaim

 

and are scared of a counter claim?

 

dx

[Octian]

Notice received from court

- hearing date set for 17th September.

 

 

No further response from Lowell, and still no sign of CCA details being sent

- that's about six weeks since they received the request so well outside the two weeks required by the CCA.

 

 

No refund of my £1 fee or even any letter saying they can't respond.

 

 

What happens if they send the CCA details between now and hearing date ?

 

Do I make a complaint elsewhere regards failure to provide CCA details or do I need to follow up with Lowells ?

 

 

Or would it be better to leave it as I'm in a strong position if they haven't got it.

 

Really appreciate your help guys.

 

 

Feel like I have an army behind me rather being alone on a battlefield !

[Guest]

good that the app'n wasn't dismissed. some poss cause?

could leave them to deal with the cca request. trust you have proof of postage/delivery? if they don't comply, then use that at the hearing. if they send something then post back on that. could send them a 'reminder' if you want basically saying that they are now in breach of the cc act etc, up to you. SD's should not be used as general debt collection empty threat, and so could complain to oft etc in due course particularly if they then go on to withdraw/discontinue prior to hearing. see the other related sd threads.

did you do a sar as suggested? any missold ppi?

Edited July 30, 2012 by Ford

[Octian]

Just over a week to go to the court hearing and

 

 

received a copy of agreement

- totally unreadable

- no notice of assignment,

no statements or

details of debt,

no default notices etc.

 

 

I assume this will actually be good evidence in court.

 

 

I am more confident now and intend to ask for costs against Lowell

 

 

What is a reasonable amount to ask for ?

 

 

I assume I can ask for half a day of wages oh ..

 

 

.. and my £1 back possibly as the CCA hasn't been complied with

[Amber Leaf]

You can claim £80 per day for attending court.

 

Litigation in person costs are £18 per hour. Personally I would claim 10-12 hours for time researching relevent legislation and case law and time taken for preparation of documents.

 

Also claim for mileage to and from court (40p/mile), parking costs and whatever you've spent on postage.

 

You need to submit your costs claim to the court 24 hours before the hearing.

[Octian]

Thanks Amber Leaf. I thought it was £18p/h - so I'll get a costs claim typed up and forwarded to the court. - will let CAG know the results.

[42man]

Some good help from Amberleaf, you will find this thread useful too - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

[Octian]

OK - update - judge wouldn't accept application to set aside as CCA request was sent in after stat demand was issued.

 

 

But Lowell/Hamptons/BW Legal are still offering discounts in 'a genuine attempt to settle the dispute'

- ahh .... so kind of them.

 

 

Still no legible agreement sent and

 

 

the only statement produced had a £0 balance.

 

 

I've drafted a reply saying

- no agreement

- therefore unenforceable,

so don't contact me again until they comply

(the agreement sent was about 95% un-readable)

 

 

Also quoted SRA rules saying solicitors can't threaten to do something that is not legally possible.

 

 

CCA request was submitted 5 months ago.

 

Any other ideas that need to be added to the reply ?