SD from BW-Disputed-SB Debt-SET A SIDE-Now Claimform

[unclebulgaria67]

Hi This is my first post so thank you in advance for any advice

 

Briefly, last week I received a Statuary Demand from BWlegal and I have a genuine dispute with the creditor (errors on the credit agreement) and I also believe the debt is now stature barred. The loan was taken out in 2006 and the dispute I had with the creditor was upheld by the Financial Ombudsman.

 

I want to apply for set aside and understand I have to fill in forms 6.4 and 6.5 but I have no legal knowledge and cannot afford a solicitor, could anyone help me with the wording for the Witness Statement? The demand was handed to me on Thursday 11th June.

 

Thank you in advance for any help!

 

You can of course look to get it set aside. E.g debt subject to limitations act 1980 and no longer enforceable. Also debt was subject to dispute upheld by the FOS and is not due.

 

My instinct is to test whether this is a mistake by BW Legal. There is a requirement by the FCA that they use the CCJ route first and not go straight for bankruptcy.

 

I would suggest that you phone BWLegal and follow up in writing. Tell them that the matter is stature barred and was subject to an upheld decision by the FOS. Ask them why they have issued the SD and suggest they withdraw it , confirming in writing that they gave done so.

 

If contacting them does not work, then do the set aside, but you will need to provide more details of the debt and what the SD says. Why is it statute barred ? What was the dispute upheld by the FOS ?

[unclebulgaria67]

If you ask for the set aside there may be a hearing and it it was a mistake it would be wasting your time. Hence seeing if you can resolve first.

[unclebulgaria67]

Make a formal complaint to BW Legal and threaten to take the complaint to the SRA. Also the debt owner would in breach of FCA rules that require them to exhaust all other debt collection methods e.g CCJ , before threatening bankruptcy.

 

Tell them it is not acceptable to threaten bankruptcy when the debt is subject to the limitations act 1980. If they don't withdraw the SD you will apply to set it aside and apply for costs.

 

Phone them and follow up with a recorded delivery letter or email.

 

Nb. Did the amount the FOS awarded get paid to the loan account ? If this happened , this may be why they think it is not stature barred. If it was not paid on until say July 2009, this may be why they are threatening the bankruptcy. If this is the case, you will need to CCA and SAR the original creditors. There will be a more complicated argument.

[unclebulgaria67]

Thank you for your responses that is really helpful, I will phone and email BW Legal tomorrow. I only have till next Friday to submit the set aside so hopefully they will get back to me before then to withdraw. Not sure what the SRA is but will look that up.

 

They did not carry out any of the FOS recommendations, I didn't get a refund of the service maintenance charges, nor did the goodwill payment get paid into the loan account, and they still continued charging for the maintenance service I didn't sign for.

 

Appreciate the time everyone took to answer will let you know how it goes

 

Solicitors Regulatory Authority ! I believe BWLegal have 2 registered Solicitors the last time I checked. They are responsible for ensuring that BWLegal operate within the standards expected. Threatening bankruptcy on a stature barred debt and not adhering to FCA rules on debt collection is not operating within the standards expected. The FCA require that creditors explore other debt collection methods, before using bankruptcy. BWLegal are responsible with the creditors for ensuring that FCA rules are adhered to.

 

You should also point out to them that the creditors did not respect the decision of the FOS and did not implement the decision that was upheld against them.

 

Suggest to them that the set aside will be successful given the facts and that you will apply for costs. If they want to avoid this, then they should withdraw the SD in writing.

[unclebulgaria67]

This is the FCA rule link

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?420687-New-FCA-rules-1-4-14

[unclebulgaria67]

Another thing you could do is send a complaint to whoever BWLegal are acting for pointing out the upheld FOS judgement against the original creditor has yet to be honoured and they should not be instructing BWLegal to threaten bankruptcy against FCA rules, when the debt is statute barred anyway. Advise that you will ask the FOS to review a complaint, unless they offer apologies and appropriate compensation.

[unclebulgaria67]

Ah yes, thank you that's an interesting point, I did wonder how the original creditor could sell the debt under the circumstances.

 

Appreciate your ongoing help!

 

You should expect them to come back claiming payments showing making it not stature barred. If this is the case you should ask for proof of the payments e.g amount, method of payment, bank details or debit/credit card used.

 

If it gets anywhere near the deadline for the set aside without response, you will have stick the set aside in to your nearest court that handles insolvency. Firstly matter subject to limitations act and secondly the original creditor not honouring the upheld judgement against them by the FOS.

[unclebulgaria67]

Thank you for the heads up, I think I will go pick up the 6.4 and 6.5 from my local court just in case as I need to go over them and hopefully someone can help me to fill them in :S

Would you know if I need to enclose original / photocopies of documents with the forms (such as the credit agreement) or just take those with me on the day of the hearing? The 18 days are up on the 25th June.

Thanks again!

 

You can download those forms online, complete them and print them off.

 

You just need to state reasons for set aside. You would only need copies of documents, if there is a hearing.

[unclebulgaria67]

As mentioned above I emailed the contact provided on the Statutory Demand letter today and have received a reply…

 

‘I am currently out of the office returning on 25.06.15

 

I will not have access to my e-mails.

 

Should your query be urgent, I would ask that you contact my colleague (name) (Email address) or (phone number)

 

BW Legal will not be put on notice of any documents received to this e-mail address in my absence.

 

This message has been sent automatically.’

 

I’ve re-sent the email to the address he provided but does anyone know of a specific email address I should use?

 

Thanks in advance

 

You could phone them for their email address for anything that is more urgent.

[unclebulgaria67]

If the loan was not being actively serviced before this defaulted balloon payment in 2010, I would think it goes back to whenever you stopped paying before that.

 

Think you will have to do the set aside based on when you stopped paying the loan back and when you originally defaulted on making due payments. Then mention that the original creditors failed to honour an upheld Judgement from the FOS.

 

As I thought the set aside was due last Friday, you may wish to get this in ASAP and mention that you have tried to get the claimants solicitor to withdraw and there is a disagreement on the debt being subject to limitation which you wish to have heard.

[unclebulgaria67]

I have a hearing date on the 21st July. I have my copy of the default notice (2007) can anyone tell me if I need to submit this to the court before the hearing, or do I bring it with me on the day to prove the debt is stature barred?

Thank you

 

In your defence did you mention the account to be in default earlier and therefore the claimants Solicitors could have looked into it ?

 

Wait for a more authoritative response, but I think as the defendant you can just take to the hearing any documents to support your defence and provide the claimants Solicitor and Judge a copy before the hearing starts. The onus should be on the claimant to dispute your defence, with documentary evidence. My only slight concern about turning up with documents on the day, is that the Judge may allow an adjournment, on the basis that you could have supplied the information to the Claimants Solicitors so they could look into it.

 

I think what happened is that the original creditor kept the account open while it was at the FOS. They have then not bothered to do the admin on the account when the FOS complaint was upheld. Eventually it appears on some account spreadsheet and it is sold on as a debt asset. It would not surprise me if the original creditor has just told the debt buyer about the defaulted balloon payment and nothing about what happened prior to that.

[unclebulgaria67]

Just send them a copy of the 07 default advising no payments made by you since then. Also remind them the original creditor failed to apply the upheld decision of the FOS against them. Request withdrawal in writing and your costs up to date. ( costs £19 an hour, plus other admin cost incurred)

[unclebulgaria67]

Well done.

 

It might be worth researching about balloon payments affecting stature barring, just in case they look to issue a court claim. They might issue a court claim and try to argue the toss.

[unclebulgaria67]

I did say last August that Lowell would look to test this again. You need to find out about the balloon payment in contracts affecting statute baring.

 

If the hearing is at the end of the month, you have just submitted a statute barred defence pointing to the 2007 issued default notice which you never paid ?

 

What would affect your defence ?

[unclebulgaria67]

What happened with the car and loan after the default in 2007 ?

 

Something does not make sense to me.

[unclebulgaria67]

Nothing, I still have the car and they never contacted me after the FOS wrote to them with the outcome of my complaint. (which was to amend the agreement, set up ppi if i wanted it plus they should pay the next 12 mths installments, refund me the £50 they had taken, and remove any default from my credit file ) I'm presuming I must have contacted them at the time, but to be honest its been so many years I really cant remember.

 

Not that it matters, but have you ended up with a car you have not fully paid for due to the Banks incompetency ?

 

What happened to the loan account betwen the 2007 default date and the 2010 defaulted ballon payment ? Did you ever get all of the Banks records by sending a subject access request ?

 

I just wonder whether the 2007 default notice was cancelled. The Bank applied the FOS awarded money to the loan account and no payments were collected before the 2010 ballon payment was due. When the balloon payment was not paid, it was chased up to the address on record and then defaulted.

 

Had you moved address sometime before 2010, so the Bank did not have your address to send the 2010 default notice ?

 

I have a feeling that Lowells will argue that the 2007 default notice was not relevant, as it was withdrawn or cancelled. The only default that is therefore relevant is the balloon payment default in May 2010.

 

Might be wise to get hold of all of the Banks loan account records, if you have not done so. An urgent SAR.

[unclebulgaria67]

Yes, it would appear so but I was willing to pay for it if they had carried out the instructions from the FOS, especially with regard to the amended agreement.

I have no idea what happened to the account during 2007 default date and the 2010 defaulted balloon payment, I thought perhaps they had closed it because they couldn't amend the agreement but I am not sure about that.

So just to confirm I didn't receive any default notice in 2010, if I had this would still be on my credit file?(I have no defaults on my file, just checked today) BTW the balloon payment is SB in May 2016.

I have lived at the same address since 2003. Yes I will definitely send off for an SAR, wish I had done this sooner as you advised but with one thing and another

 

Have you sent a CPR letter to Lowells Solicitors asking for copies of all documents stated in their claim ?

 

If they are referring to a default notice issued in 2010, they need to provide evidence of this.

 

Hopefully the SAR to the Bank will reveal what happened.

 

I wonder whether you have a history feature on the credit records to see if the Bank did delete the original default, as the FOS requested. I would have thought that the Bank would have had to write to you following the FOS decision to confirm the status of the loan, so you could maintain good financial conduct. If the Bank never cancelled the original default and never confirmed this, you would have had reasonable belief that the original default still existed, as you had nothing from the Bank to say otherwise. The balloon payment is part of the loan agreement and is affected by the previous conduct of the loan. If the loan was not being paid and payment was not requested by the Bank, as you believed the loan was already in default, then you would not expect further default in relation to a balloon payment.

[unclebulgaria67]

That does make sense, ah great idea re the credit file history! I will search around for more info about this.

I totally agree about the contact bit, as the professional they should have maintained some kind of contact. Now I think back the FOS did mention on more than one occasion that he also had problems hearing back from them.

 

I checked the court bundle that the DCA submitted for the Bankrupt hearing last year (its like war and peace, even the judge commented on its ridiculous volume) and yes they enclosed a default notice (I never received this, first time I saw it was in the court bundle) On closer inspection it looks odd compared to the one I received from the bank, its not dated for a start, nor signed and doesn't contain the same amount of information as the original. I'm thinking its fake, especially as it is not recorded on my credit file. They also included a Repossession notice, (again I never received this and the first time I'd seen it was in the court bundle) Needless to say no one came for the car so presuming this is a fake letter as well.

 

Yes that also makes sense re the Default Notice, I did ask the judge if the (2007) notice covered the balloon payment but he said no it did not. I'm confused about that because I thought only 1 default could be given per agreement.

 

The default notice in the bundle was from when ?

 

The default notice must be a true copy of what the Bank issued.

 

What does it include ? Does it include a sum in relation to previous default that was never paid ?

 

Get the SAR off to the Bank urgently by recorded delivery, marked urgent.

[unclebulgaria67]

The bundle was from the first hearing last July 2015 (SD for Bankruptsy) The 'Default' in their bundle is from 'Lex Autolease' and demands £7.88292. It gives me 14th July 2010 to pay or they will take action. Not sure if relevant but the figure doesn't include the balloon payment which is an additional £1,713.00. Sorry trying to upload a copy of it but I am having problems, will keep trying. Doing the SAR this afternoon and will post recorded tomorrow.

 

I think it might help if you uploaded the default notices from 2007 and 2010.

 

The SAR needs go to the Head of Compliance and Data Protection officer at Lex Autolease who are part of Lloyds Banking group. It would be interesting to see a complete set of their computer data, as to when your loan record was accessed and what they did. Plus what documents they have copies of.

[unclebulgaria67]

Thank you, I will try to get those uploaded. Just to add, the first Default Notice (2007) is from Bank of Scotland, I thinking I should send an SAR to them as well.

 

Bank of Scotland is now Lex Autolease ? Basically from what i understand, Bank of Scotland were part of HBOS and they are now part of Lloyds Banking group. Lex Autolease appear to deal with the old BOS finance, so should have all the records.

 

Does this sound right ?

 

You could phone Lex to check that they have taken over all record keeping for BOS loans taken out in 2006.

[unclebulgaria67]

Hi Andy, That's correct

 

I think the question is asking what has happened since then, with you only coming to CAG a month before a court hearing ?

[unclebulgaria67]

I think you need to read the finance contract carefully. The balloon payment could be separate, as after paying monthly for a relevant period, there could have been an option to hand back the car or make the balloon payment.

 

You really need all of the paperwork to see what went on. The finance company should have written to you ahead of the balloon payment to ask what you wanted to do.