Lowell taking court action - debt is not ours

[Alipeeps]

Hope I can get a quick bit of advice/knowledge from you guys.

 

Lowell have been sending my husband the usual series of threatograms over a Talk Talk account debt and have now sent us a county court claim form.

 

What makes this especially fun is that this debt is absolutely not ours.

We have never had an account with TalkTalk.

Hubby has even phoned TalkTalk and verified that he has never had an account with them (and they actually confirmed to us that the debt is question is not and never has been registered at our address - but we can't really use that info because under data protection they shouldn't even have told us that much).

 

Hubby has a very common name and I can only assume that Lowell, being unable to find the actual debtor, have just sent out speculative threatograms to everyone they could find with that name in the hope of bullying someone into paying.

 

We haven't bothered replying to the threatograms because, quite frankly, why should we?

It's not our debt and we are under no obligation to send them personal and/or financial information (also, in my past experience of DCAs chasing a debt for a previous resident of our address, these companies are extremely reluctant to remove a name/address from their records unless you can provide them with an alternative address at which to chase

- they would rather continue to pursue payment at an address they know not to be that of the debtor than have nowhere to send threatograms to).

 

I am submitting our defence to the claim on the website and it's fairly straightforward because it amounts to, Sorry mate, not our debt, sod off.

But I would like to get Lowell in as much trouble with the courts as I possibly can for their unscrupulous shenanigans

 

I would like to know what the regulations are (I know there are regulations DCAs are supposed to follow, not that they often do) about chasing debts/issuing court action etc when they haven't even ascertained that the person they are chasing is the actual debtor.

 

Are they in breach of regulations here?

Or are they actually allowed to send out threatening letters to everyone with the same name as the debtor they are seeking and take people to court just because they have the same name as a debtor?

 

Any help/thoughts/guidance much appreciated.

Edited December 28, 2018 by dx100uk
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[dx100uk]

moved to legal

please complete this:

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do-**UPDATED-2018**

 

have you sent cpr?

[Alipeeps]

Thanks for the link etc but none of that is relevant because the debt absolutely is not ours so the particulars of the defence are easy.

It's not our debt. It never was.

We can't ask for copies of documentation etc because we are not party to any agreement/contract so under data protection we can't ask for it.

 

I just want to know what the regulations are about DCAs chasing people for payment of a debt when they haven't even bothered to even try and make sure the person they are chasing is the debtor. Are they in breach of any regulations by doing this?

If they're not, no big deal. But if they are, I would like to state that in my defence.

 

Thanks.

Edited December 28, 2018 by dx100uk
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[Surfer01]

Get some sort of written confirmation from Talk Talk that the debt is not yours.

If it ever goes to court and the magistrate finds that you did nothing to deny or confirm the debt, you may end up with court charges so be careful.

 

Have you written to Lowell advising them that the debt is not yours?

If not you cannot even claim harassment.

 

A simple letter stating that the debt is not yours is all that is needed.

If you email then they have your email address which may not be a good thing.

Edited December 28, 2018 by dx100uk
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[Alipeeps]

How can the court possibly rule against us or charge us anything when the debt is not ours,

has never been ours,

Lowell have done nothing to ascertain that we are the debtor they are seeking before taking us to court?

 

They literally have nothing other than a name to suggest that we may be the debtor they are looking for

- they can't have,

because we know we aren't.

 

We can't get any kind of written confirmation from Talk Talk that the debt is not ours because,

as the debt is not ours and we are not party to it,

they cannot/should not tell us anything about it because of data protection.

 

Hubby only got them to admit on the phone that the debt is not connected to us/our address by saying "Okay, if I tell you MY details,

can you tell me if they in any way match the details of the debt"

and he did and they said no,

they don't match the debtor details

- and they shouldn't really even have said that much.

Edited December 28, 2018 by dx100uk
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[Will Goodfellow]

You seem to have an odd idea about what data protection is.

Talk Talk telling you that your details do not match the debtor's is not a data protection breach nor is writing a letter stating the debt is not yours.

 

The court can rule against you if you do not defend the claim as it will grant a default judgement against the debtor in undefended claims.

[BankFodder]

you have been here since 2008 so clearly you have read our customer services guide and you recorded that call that you had with TalkTalk. Well done.

 

That is very useful evidence in case the matter does go to court.

 

as has already been indicated to you, you have to supply a defence and I would suggest that you probably have a basis for filing a counterclaim as well for breach of the data protection act and claim a modest amount in compensation such as £50.

Have you sent off your defence yet?

[Alipeeps]

As stated in my post, I am submitting our defence to the claim online atm.

I just wanted to include, if possible, some mention of what if any regulations Lowell are in breach of.

 

In hindsight,

we probably should have sent them a Prove It letter to make them go away but tbh both hubby and I are very busy and we just didn't get around to it

- I was intending to draft one during the Christmas holidays but the court claim form has obviously pre-empted that.

 

And tbh it's annoying that the onus is put on us to prove we are not the debtor when Lowell have made 0 effort to actually identify the debtor and have more than likely just sent out letters to everyone with that name.

 

I've had a google around and found that Lowell (allegedly) adhere to the Code of Conduct of the CSA which states that members should "take reasonable steps to ensure that the person being

contacted is in fact the customer" so I am including that in my defence, noting that they clearly haven't done so.

They are taking us to court over this debt based on nothing more than my husband having the same name as the debtor.

 

(Sadly, hubby made the call to TalkTalk and he didn't record it.

But we are confident that the debt is not ours and that if Lowell or the court check with TalkTalk they will be able to verify that.)

Edited December 28, 2018 by dx100uk
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[AndyOrch]

Did you not receive any advanced warning of the impending claim vis a Pre Action Protocol ?

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?481827-The-Pre-Action-Protocol-for-Debt-Claims-is-made-by-the-Master-of-the-Rolls-as-Head-of-Civil-Justice-1st-Oct-2017

 

Andy

[Alipeeps]

Tbh we may have done...

there have been that many letters and I haven't read them all in detail (and I've previous experience of DCAs threatening court action

- including sending a blank pro forma claim form saying "this is what it will look like when we file a court claim against you"

- just to try and scare you into paying).

 

I know it's partially our own fault for not dealing with this before it came to court action but tbh I kinda felt like if Lowell want to waste their money and the court's time filing a court claim when literally the only information they have that connects us to the debt is my husband having the same (very common) name as the debtor then on their own head be it.

 

I'm not particularly concerned about the court claim as we know the debt is not ours so the court cannot enforce a debt that is provably not ours.

I just want to state clearly in the defence we submit how flimsy Lowell's premise for chasing us for this debt is

- that they have proceeded to court action based on nothing more than a name and having made no attempt to identify that hubby is actually the debtor.

[Will Goodfellow]

As you state yourself,

Lowell made numerous attempts to establish that the debtor is your husband.

 

You received that many letters you have not read them all in detail,

Lowell didn't make no attempt,

you did not respond to its attempts.

Edited December 28, 2018 by dx100uk
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[AndyOrch]

Well the Pre Action Protocol as linked above is the legislation that should be fulfilled and exhausted before litigation is commenced.

 

Therefore your defence must be CPR compliant otherwise the court could reject it and allow the claimant a default judgment...so before just submitting your proposed defence......post it here for comments first and look at other examples of holding defence and contents and style and in particular when a claimant has failed to follow Pre Action Protocol what your response should be.

 

Once a defence has been submitted you cannot amend it.

 

 

Andy

[Alipeeps]

Lowell are allowed to send out god knows how many letters to anyone with the same name as the debtor and the onus is on all of those people to respond and say

"I'm not the person you're looking for",

rather than on them to conduct any proper due diligence or investigation to find the person,

and if you don't respond they're allowed to take you to court based on nothing more than you having the same name as the debtor?

For all I know they may be taking multiple people with this same name to court for this one debt?

 

I know it's our fault for not sending them a Prove It letter etc to stop this before it got to court action but tbh my past experience of DCAs have been that they will continue to pursue no matter what you do.

 

And we knew the debt was not ours so the letters felt like empty threats if you will.

But given that the debt is not ours,

and that can be proved,

the court cannot rule in Lowell's favour and make us pay it, can they?

 

Maybe I am being naive but I cannot see how the court can effectively rule

"Well, yeah, the debt is provably not yours but you didn't respond to the DCA's letters demanding you pay this debt and "let" them take you to court based on nothing more than your name, so we're gonna make you pay the debt anyway."?

Edited December 28, 2018 by dx100uk
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[Surfer01]

I think you are confusing two things here.

The court will not enforce the debt on you however the court may more than likely make you liable for court charges for wasting their time if it went to court as you had ample opportunity to send off the "prove it" letter.

 

Sadly by ignoring their demands you have made it worse for yourselves.

Get that letter off to Lowels SAP and get proof of posting which costs nothing.

[Alipeeps]

Thank you everyone for your advice.

I am sending Lowell a Prove It letter stating that the debt is not ours,

as well as submitting our defence to the court stating that the debt is not ours.

Edited December 28, 2018 by dx100uk
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[Will Goodfellow]

My point was that you can't argue Lowell made no effort to establish your husband is the debtor when you received numerous letters which you ignored.

And, yes, as you completely ignored all of the pre-action letters,

the creditor can then make a claim against you in court which you can defend.

The creditor can still make a claim even if you had responded denying the debt.

 

The fact that you ignored all of the letters will have no bearing in court on whether your husband wins or loses the case.

That will be based on evidence presented,

arguing that your husband's details are different to the debtor's is not an ultimate defence either as your husband's details may have changed since the debt accrued,

a change of address for example.

 

The court will consider whether your husband ever lived at the debtor's address and if any payments were made, what bank account the payments were made from etc.

 

It's very unlikely that any other claims are being made for the same debt,

it is more likely that Lowell have some information linking your husband to the address of the Talk Talk account.

Edited December 28, 2018 by dx100uk
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[Alipeeps]

Okay well that's fine because they don't.

They can't possibly have,

because we have never had an account with TalkTalk at ANY address and therefore have never made any payments because we never had any such account.

Edited December 28, 2018 by dx100uk
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[Surfer01]

The creditor is not making the claim,

a DCA is making the claim as they have bought the debt.

 

If requested the DCA needs to show that there was a contract between the OP & Talk Talk.

This could have been obtained in the Prove It letter if it had been sent right in the beginning.

 

Once a debt is being disputed it has to go back to the original creditor in this case Talk Talk.

The DCA cannot make a claim if the debt is disputed.

 

No need for OP to demonstrate that they have never moved etc etc if they have requested a copy of the contract and the DCA is unable to produce it or if the DCA do produce it and it shows a different address and signature then it will go no further.

The application should also have a DoB on it.

Lowells were fishing and when the OP never denied the debt,

Lowells assumed that they had found the correct person.

 

BTW if the OP sends off the Prove it letter and asks for a copy of the contract but it still goes to court,

they may be able to claim compensation from Lowells.

Edited December 28, 2018 by dx100uk
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[Alipeeps]

Interesting addition, thank you.

 

One thing though - although I am sending off a Prove It letter disputing that the debt is ours,

I can't ask them for a copy of the contract...

if I'm stating the debt is not ours,

then under data protection laws they cannot send me a copy of a contract that we are not party to

 

I mean... if the case is not dismissed based on our defence or when Lowell receive the Prove It letter then presumably Lowell would have to submit any contract as part of their evidence in the case and we would get to see it then.

 

But unless that happens we can't request a copy of a contract we are not party to.

Edited December 28, 2018 by dx100uk
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[Will Goodfellow]

In that case, your husband can provide proof that he didn't live at the debtor's address when the account was opened, council tax bills, rent/mortgage statement, utility bills etc.

 

Has your husband changed addresses since the debt accrued?

[dx100uk]

prove it letter is worthless

stop faffing around

 

get the link done in post 2 please

 

then those that can help you properly have all the correct info to advise you

 

magistrates court and stupid prove it letters are not going to help you

[Will Goodfellow]

The creditor is not making the claim, a DCA is making the claim as they have bought the debt.

 

If Lowell has purchased the debt, it is now the creditor.

 

If requested the DCA needs to show that there was a contract between the OP & Talk Talk. This could have been obtained in the Prove It letter if it had been sent right in the beginning. Once a debt is being disputed it has to go back to the original creditor in this case Talk Talk. The DCA cannot make a claim if the debt is disputed.

 

If Lowell bought the debt, if it is disputed it will not go back to the original creditor as Talk Talk sold the debt to Lowell, Talk Talk no longer 'own' the debt, Lowell do.

 

No need for OP to demonstrate that they have never moved etc etc if they have requested a copy of the contract and the DCA is unable to produce it or if the DCA do produce it and it shows a different address and signature then it will go no further. The application should also have a DoB on it. Lowells were fishing and when the OP never denied the debt, Lowells assumed that they had found the correct person.

BTW if the OP sends off the Prove it letter and asks for a copy of the contract but it still goes to court, they may be able to claim compensation from Lowells.

 

That was an option before the response pack was received, it's a bit late now.

[Will Goodfellow]

If it ever goes to court and the magistrate finds that you did nothing to deny or confirm the debt, you may end up with court charges so be careful.

 

 

A magistrate does not hear a county court claim.

[Alipeeps]

In that case, your husband can provide proof that he didn't live at the debtor's address when the account was opened, council tax bills, rent/mortgage statement, utility bills etc.

 

Has your husband changed addresses since the debt accrued?

 

According to Lowell's letters, the account in question was opened in 2015. We've lived at our current address since 2010 (and TalkTalk confirmed on the phone that our address does not match that registered for the account). His DOB and signature also won't match.

[dx100uk]

please get that link done then we can help you....

 

pontificating its not mine etc etc

is getting you know where...

 

its for the claimant to prove the debt is yours, NOT for you to prove its not.

filing a cpr compliant defence to that is the key..as pointed out in post 12..

 

but its now some 4hrs later and 22 posts later but we still don't know the info we NEED to help you.

thinking 'its not relevant' to your position … is continuing to stick your head in the sand since your poor approach to this debt at the 1st letter...

 

dx