lowell/Carter claimform - old cap1 'debt'***Claim Struck Out***

[shamrocker]

notdoneyet - do you have any correspondence relating to the dispute with Cap 1?

[notdoneyet]

notdoneyet - do you have any correspondence relating to the dispute with Cap 1?

 

do you mean in relation to my complaint with them surrounding the ppi and charges on my account?

 

Yes, I have a letter from May 2009 which was my request with figures included and there response which came finally in January 2010.

 

Should I scan and add them here?

[shamrocker]

No great need to post them.

 

It's entirely down to you how you play things going forward, but your best option from where I'm sitting is to dispute the PPI, charges and interest. You'll need to really do your homework if you're to challenge the enforceability of the agreement - even then, you may not have any success in front of a judge.

 

The PPI claim really ought to be taken up with Cap 1, as far as I understand it. However, at this stage, I'd probably be using it as ammunition for defending on the basis of a dispute existing and thereby also challenging the total being claimed.

 

With regards mediation, it's generally accepted that agreeing to mediation is seen as being reasonable. I don't see why it can be judged as an acceptance of debt - perhaps you just want to get across the point that you have no knowledge if the debt unless you receive further information in the form of certain documents.

 

If you're to enter into mediation, then the PPI, charges, interest will definitely be important factors to focus on. You'll need your calculations to be firm and well founded. Maybe you can bring enough to the table what will give them a bit of a headache.

 

Of course, there's nothing stopping you from challenging the eneforceability of the agreement (can it be challenged?) and then going after Cap 1 for the PPI, etc.

 

Your call.

 

Sham

[The Mould]

Thanks Shamrocker, I have understood that to be the case with T&Cs myself, but I havent looked into that for a while so will do so.

 

The PPi and mediation is another issue for sure. I have just this morning phoned about mediation and they made it very clear to me that by entering into mediation I am admitting to the court that I owe lowell some kind of debt. I believe this not to be the case and situation in point is the PPI. I made the claim to Cap 1 at least 6 years ago for the ppi paid and charges and they offered to return £16 of late charges only. I disputed this and then they sold the account to lowell, whilst the account was still in dispute - over many issues - but especially on the basis of the PPi owed.

 

So what do I do now? Do I send lowell a PPi claim in the hope that they will return the account to Cap One? Is that likely or how will they proceed?

 

Do I send the claim again to Cap 1 citing that they should never have sold the account to Lowell whilst it was in dispute?

 

Do I do both?

 

Do I accept mediation or decline it on the basis that the debt should never have been sold to Lowells?

 

I really dont want to end up in front of a judge, having sat through mediation, and in his eyes showing from the outset that I owe lowells this money. I am on the back foot here from the outset in that instance.

 

Help! Thanks.

 

Hi

 

Please don’t be frightened by your opponent and mediation as regards the dispute you are involved in, and by that I mean, really don’t worry as to what your represented opponent has to say, whether he (your opponent) is represented by his ‘in-house’ legal reps or by high street practice or by corporate law firm.

 

Anything said or done in mediation is prohibited from disclosure to the Court and therefore your opponent’s assertion that by agreeing to mediation amounts to your admittance of his claim is wholly factually incorrect.

 

Agree to mediation, whether at a ‘round the table meeting’ or in separate rooms, because this will protect you on the question of costs and no matter what you say at mediation, this cannot be disclosed in the proceedings and therefore cannot be held against you and your opponent cannot rely on the same in the proceedings to the dispute.

 

Kind regards

 

The Mould

[notdoneyet]

Sham & The Mould - Thank you.

 

I will go for mediation - infact, it was the mediation service themselves who advised me that this was an admitance of owing some debt to the other side, which quite shocked me as I would have expected them to be impartial.

 

I have also worked out the PPI with todays dates brought into things, and it all but cover the fee they are claiming for. So I will submit the claim to Cap 1 tomorrow.

 

I am of the thought not to mention PPi to the other side at this stage. The reason being is that if they get wind of a potential PPI claim being available, they could perhaps decide to be more demanding in how they deal with me and what they expect from me given my current circumstances. Or am I wrong in assuming that?

 

Or, if I were to mention PPI to them and the amounts being claimed during the mediation process, would they at this stage return the account to CAP 1? Or is court inevitable if we dont reach agreement during mediation?

 

Thanks.

[shamrocker]

Sending a PPI claim to Cap 1 probably won't stop any claim by Lowell. It just means you can't bring the PPI into your defence, as you're disputing that via other channels. At the very best, it get's complicated.

 

Perhaps DX or Andyorch can comment on this? Should notdoneyet issue the claim to Cap 1 or not? Should they just leave the PPI claim with Cap 1 and use it to fight the claim with Lowell? Any advice?

 

Using today's date won't give you the correct total where accumulated interest is concerned - you need to use the default date, as this is when, strictly speaking, any interest should cease being applied to the account. Out of interest (pardon the pun!), can you explain how you reached your total figure in terms of adding compound interest. You may as well give us a breakdown, then we can give a second opinion on whether it's correct.

 

Sham

[The Mould]

Hello there NDY

 

In Patricia Jones v Link Financial Limited [2012] EWHC 2402, Mr Justice Hamblen (sitting in the High Court and on appeal), handed down the Court’s decision on the issue as to whether an assignee of a regulated agreement was in fact a creditor within the meaning of s.189(1) of the CCA 1974, the Court pronounced its decree declaring that such assignee was indeed a creditor under the 1974 Act.

 

The definition of ‘creditor’, contained in Section 189(1) of the CCA 1974, is “the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor”.

 

The Decision

After hearing submissions, Mr Justice Hamblen decided that:

Section 189(1) of the CCA 1974 “clearly contemplates that an assignee may become a creditor”;

the approach set out in Encyclopaedia of Consumer Credit Law, now edited by Professor Lomnicka, was correct and that “the “duties” referred to in section 189 are…those statutory duties under the [CCA 1974] which the assignee has to perform in order to enforce his assigned rights. These duties have “passed by assignment” in the sense that it is by reason of the assignment that the assignee becomes obliged to fulfil them”;

there is a distinction between a legal assignment (where, subject to notice of the assignment being given to the debtor, the assignee is the ‘creditor’) and an equitable assignment (where the original creditor remains the ‘creditor’ under the agreement); and

it was not necessary to add to or change the language of Section 189(1) of the CCA 1974 to reach this conclusion.

 

It therefore followed that a legal assignee of a debt due under a regulated consumer credit agreement was the ‘creditor’ for the purposes of the Agreement. Because Link was the creditor, it was therefore unnecessary to decide the first issue raised in the appeal.

 

Therefore, in your case NDY, Lowell is the creditor and the statutory duties imposed upon him under the 1974 Act passed upon him by the assignment, in this respect Lowell is legally responsible for the PPI on the agreement and jointly liable with Cap1 as regards repayment of the PPI + interest thereon to you. Cap1 are recognised in law as the party with primary liability for the fraud (PPI) and Lowell are recognised in law as the party with accessory liability for the same as a consequence of the assignment of the agreement to them.

 

Further, as regards the PPI element, the document - Certificate of the Insurance product setting out the so-called ‘benefit’ thereunder which relates exclusively to the agreement, is in fact a prohibited article within the meaning of ss.1.7(b)(i) & 1.8(d) of the Police and Criminal Evidence Act 1984 since it has been made and used in connection with fraud (the PPI added on to the loan) in contravention of s.1 of the Fraud Act 2006 and therefore seeing that the two (2) articles – the insurance and the agreement, are intimately related and inseparable in relation to the loan/credit facility provided, in almost all PPI cases the consumer was told that in the absence of the insurance there would be no loan or credit facility provided by the creditor, meaning the PPI was non-optional, therefore the agreement also constitutes the act of making and using of a prohibited article for use in connection with the fraud on you (on all consumers).

 

What this means is that the Courts cannot pronounce a decree for the force and validity of any prohibited article, therefore, Lowell will find that they are unable to enforce the agreement against you on the grounds stated above.

 

I hope the foregoing will be of some help for you on your case.

 

Kind regards

 

The Mould

[citizenB]

Sham & The Mould - Thank you.

 

I will go for mediation - infact, it was the mediation service themselves who advised me that this was an admitance of owing some debt to the other side, which quite shocked me as I would have expected them to be impartial.

 

I have also worked out the PPI with todays dates brought into things, and it all but cover the fee they are claiming for. So I will submit the claim to Cap 1 tomorrow.

 

I am of the thought not to mention PPi to the other side at this stage. The reason being is that if they get wind of a potential PPI claim being available, they could perhaps decide to be more demanding in how they deal with me and what they expect from me given my current circumstances. Or am I wrong in assuming that?

 

Or, if I were to mention PPI to them and the amounts being claimed during the mediation process, would they at this stage return the account to CAP 1? Or is court inevitable if we dont reach agreement during mediation?

 

Thanks.

 

They are supposed to be impartial, so their statement was quite wrong.

 

The Courts do like the parties to have made some attempt to deal with the issue outside of the court. But it doesn't mean that you are admitting anything.

[notdoneyet]

Hi All,

 

Well my house has been full of lurgy but just an update. We had our 1 hour mediation last week, with the case remaining unresolved and heading to court at the end of the year.

 

On the £2200 (figures not exact) debt they offered a F&F settlement figure of £1450. They believe that what they have is a fully enforceable agreement and the chap speaking on behalf of Lowells apparently stated that he had used such agreements in the past to win cases.

What we are faced with is arguing in court on the day that what they have provided is not an enforceable agreement under the CCA.

 

 

Can I ask, in your experience, what is the likelihood of such an argument being successful?

Is it 60/40 in their favour, or more like 80/20...

.I'm just concerned that allowing it to go to court is essentially guaranteeing me a CCJ

whereas if I set up a repayment for £5/month now I may be paying a debt into my 70s

but I'll be able to move on with my life and rebuild my credit at some stage in the future.

 

Also, which option is best for me given that I know Lowell 'own' other debts belonging to me totally approx £30k

none of which will be statute barred until early nxt year given that the CCA request £1 payments were credited to various accounts up until April 2010?

 

I know this is all a bit jumbled so please ask if you need clarification - my snotty baby keeps sneezing over my screen!

[dx100uk]

£1 CCA being used as payment can be argued that it is wrong to good effect.

 

makes no bearing on your case they have other debts either.

 

as for winning with other like cca returns...simply bravado on their part.

 

as if all else fails

you can always go for a tomlin order and bring in the PPI/charges into play to avoid the CCJ

 

even at the last stages.

[dx100uk]

we need to see the CCA return and ALL the T&C's they have sent you since the claimform too

 

 

dx

[notdoneyet]

Hi All,

 

Just a quick update. CAP1 have filed there defence and will not be attending court tomorrow, is there anything glaringly obvious I need to know?

 

Thanks

[AndyOrch]

What have they stated in their witness statement?

[notdoneyet]

the witness statement is 3 pages long - what exactly is it I should be looking at?

[notdoneyet]

they argue that I entered the agreement with card number etc referencing the agreement exhibited,

yet what they exhibit is the signed application form.

 

hey state that I last made payment to the account 2/2010,

yet as far as I'm aware any payments made to them after 4/2009 were £1 cheques sent with CCA request letters

as that is all I can find in my paperwork, which is very sketchy from mid 2009 onwards.

 

They laterally state that I do not deny I entered into an agreement with CAP1 (which I do) and that I have no valid defence.

They submit that I do not have a valid defence and that they are therefore awarded full claim plus costs of 50p per day, plus court costs of £350.

[AndyOrch]

Stick to your contention that it is statute barred...no payments/acknowledgment made after April 2009...tell the court the £1 payments were for various section CCA 78 requests to Cap 1 and other DCAs...If you can prove its statute barred and can show the court your requests...the rest is irrelevant...application form included.

[notdoneyet]

Thanks Andy,

 

I'm just going through all my paperwork and making copies of anything relevant that I may have sent them.

 

Fingers Crossed!

[dx100uk]

Hi All,

 

Just a quick update. CAP1 have filed there defence and will not be attending court tomorrow, is there anything glaringly obvious I need to know?

 

Thanks

 

 

CAP1?

 

 

dx

[notdoneyet]

lowell/bryan carter - sorry DX i have CAP1 in my head as the name of the debt and it doesn't matter who owns it now, all I can think of is what the debt means to me in my head.

 

took me a minute to realise why you were questioning it

[AndyOrch]

Thanks Andy,

 

I'm just going through all my paperwork and making copies of anything relevant that I may have sent them.

 

Fingers Crossed!

 

I assume you filed a witness statement in response to the claimants?

[notdoneyet]

I have made a statement to the court reference my belief that the debt is statute barred - is that what you mean?

 

I have done so and the court/judge has filed my statement awaiting the hearing.

[AndyOrch]

I have made a statement to the court reference my belief that the debt is statute barred - is that what you mean?

 

I have done so and the court/judge has filed my statement awaiting the hearing.

 

so your disclosure will support your claim that they were CCA requests...not credits to the account.

[notdoneyet]

disclosure?

 

I fear I'm too dim to be doing this job

[AndyOrch]

Following the courts directions....to submit a witness statement and disclose all documents that you wish to rely upon..........as per your Notice of Allocation?

[notdoneyet]

Yes, the court have everything