Lowells claimform - old old Vanquis card *** Claim Dismissed***

[Gilbert Osullivan]

Hello

 

Couple of questions regarding Lowell's legal action against me re a Vanquis CC debt.

 

1 Once an account is terminated can the creditor add on another month's interest and late payment charge a month later?

 

Eg the DN states £3500 balance on say 5th March 2021, terminates on the 28th March but then increases the balance owing to £3700 on the 28th April due to Aprils interest plus a further late payment charge on the same date?

 

2 It appears Vanquis say they follow the FCA guidelines before issuing a DN, ie at least 3 months missed payments as arrears. Mine has about 1 months missed payment but the second missed payment was 7 days late, rather than completely missed, yet included on the DN as part of the total arrears amount.

 

Eg I missed Oct, Nov, Dec, payments due at beginning of each month, but paid one large sum later in December to cover those three months, missed Jan, Feb but paid a sum that ALMOST cleared it all save for about £50. Was late for 1st March repayment, received a DN indicating by the arrears amount on the DN that I was about 3 months worth in arrears on the 8th March.

 

Should March have been included as it was so recent? Is it not just late, rather than actually missed? As in the next months repayment, April, wasn't yet due? 

 

Thanks for any help.

[dx100uk]

vanquis & DN are never straight FWD, however i would doubt arguing about such is a worthy defence.

 

can you complete our sticky please 

 

You have received a Court Claim ISSUED IN ENGLAND & WALES What you need to do - Financial Legal Issues - Consumer Action Group

 

and let us know how far you are in to the court process. AOS/defence filed.what did you file. WS stage?

are these docs from Lowell's via a CCA/CPR or parts of the WS disclosures?

 

dx

 

[Gilbert Osullivan]

What is the claim for –

 

1) The Defendant entered into a Consumer Credit Act 1974 regulated agreement with Vanquis under account reference xxxxxxxxxxxx

 

2) The Defendant failed to maintain the required payments and arrears began to accrue.

 

3) The agreement was later assigned to the claimant on 27/09/2019 and notice given to the Defendant.

 

4) Despite repeated requests the sum of £3, 413.10 remains due and outstanding.

 

And the Claimant claims 

a) The said sum of £3,413.10

b) Interest ... being £270.06

c) Costs

 

What is the total value of the claim? £3,948.16
 

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ? Yes

 

Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? No
 

Did you inform the claimant of your change of address? na

Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? Yes
 

When did you enter into the original agreement before or after April 2007 ? After

 

Do you recall how you entered into the agreement...On line /In branch/By post ? online
 

Is the debt showing on your credit reference files (Experian/Equifax /Etc...) ? yes
 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. debt purchaser
 

Were you aware the account had been assigned – did you receive a Notice of Assignment? yes
 

Did you receive a Default Notice from the original creditor? yes

 

Have you been receiving statutory notices headed “Notice of Sums in Arrears”  or " Notice of Arrears "– at least once a year ? No
 

Why did you cease payments? self employed and reduced hours to care for father thus reduced income
 

What was the date of your last payment? 03/02/2017
 

Was there a dispute with the original creditor that remains unresolved? Yes
 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? Phoned them to say any payments would be sporadic for a few months due to reasons above and would be late with payments. I made no attempt at a DMP.

[dx100uk]

date of claim please 

and what stage in the claim are you at?

 

where this DN come from please ans my other q's above.

 

dx

 

 

 

[dx100uk]

hows this going?

 

dx

 

[Gilbert Osullivan]

Hello

 

Can't find anything regarding this which happened at a remote County Court hearing on Monday.

 

Briefly, Lowells (old Vanquis card) v Myself. I've defended on the basis of inaccurate arrears amount on DN. Plus Vanquis' general administration of my account with ROP scandal, essentially inflating debt etc.

 

Anyway, I raised the fact Vanquis terminated my account for not paying alleged arrears on DN. Judge asked Lowells solicitors what entitled them to terminate account.

 

Lowells said s87(1) of CCA. Judge said no, s 87(1) simply entitles a creditor to issue a DN, not to terminate. A DN is the step that needs to be taken in order to terminate an account if that was their aim.

 

The Judge then said to Lowells where in the t&c's is the clause to terminate written as he could not find it.

 

Lowells fumbled about. At first they said it's under 'Missing Payments,' but it isn't, that simply says missing payments could have severe consequences, nothing else detailed.

 

They then picked out another clause which simply says failing to pay the Minimum Repayment may result in arrears and default information being recorded.

 

At their third attempt Lowells stated another clause 'Closing your account' and that says for any reason but must give at least 30 days written notice. The DN was issued, account terminated within 15 days.

 

Judge had enough and said to Lowells he is giving them 7 days to provide written submissions as to where in the t&c's termination is detailed and under what circumstances ie do the terms allow for termination on missing payments at all or, if so, is it for 1, 2, 10 etc missing payments.

 

I've checked other card t&c's and I can find no clauses specifically re termination.

 

Any thoughts on this?

[AndyOrch]

Topics merged.

[dx100uk]

well unless you are going to post up the defence you filed in full

and both WS's i cant see we can help that much.

 

Vanquis agreements are crap and never can be enforced as there is never a record of the IP address the PC that you signed up on recorded.

and ofcourse regardless to termination if they've not got a copy of the DN they are stuffed too.

 

 

[Gilbert Osullivan]

Hello, thanks for replying.

 

I'm not too tech minded and don't understand photobuckets and the like.

 

Could you not comment on just a general point raised by the Judge?

 

ie He said a DN doesn't entitle termination, as issued under 87(1), a DN is just issued if a creditor wants to terminate, it isn't the DN itself that allows termination as Lowellls said it did.

 

The judge said the basis for a termination reason must be detailed in the agreement t&cs. He just cannot find it in the Vanquis terms.

Edited November 11, 2021 by Gilbert Osullivan
s 87

[dx100uk]

read our upload guide

you dont need to use external hosting sites.

 

termination is covered by the consumer credit act following the issuance of a DN which the debtor fails to comply by

 

section 87/88?

 

its not part of the T&C but the CCA.

 

see the text of the vanquis default notice you mentioned in post 1

[AndyOrch]

https://www.legislation.gov.uk/ukpga/1974/39/part/VII/crossheading/termination-of-agreements

[Gilbert Osullivan]

Thanks all.

 

I was none too convinced by the Judge anyway.

 

My main point was the alleged arrears are vastly overstated on the DN.

 

The Judge focussed on the overall balance and we could all see how that accumulated but my point was not about the overall balance, it was the alleged arrears amount.

 

Briefly, (monthly repayments on last day of month) missed 28th Oct payment of £120

 

                                                                                           missed 28th Nov payment of £130

 

                                                                                           Paid £200 to account 07/12

 

                                                                                           missed 29th Dec payment of £120

 

                                                                                           missed 27th Jan payment of £130

 

                                                                                           Paid £250 to account 03/02

 

                                                                                           missed 27th Feb payment of £120

 

DN issued 09/03 alleging £480 arrears.

 

Missed £620 of repayments but paid £450 to offset them.

 

Leaves £170 arrears (£60 of which late payment fees)

 

Vanquis internally bill accounts at the beginning of the month, send out the bill to pay at the end of the month.

 

Vanquis included as arrears on the DN of the 09/03, £130 March repayment that wasn't even due until the 29th March. Plus another £12 fee.

 

Even in this scenario, including a payment as arrears not even due until 29th March, the total arrears would have been about £312.

 

There was no way I was £480 in arrears.

 

My balance was £3570, £70 over limit.

 

I argue the correct course of action should have been an over limit of £70, an arrears of £170 on the DN date of 09/03.

 

Even including March's payment not yet due the DN arrears still remains inaccurate.

 

 

 

Edited November 11, 2021 by Gilbert Osullivan
wrong amount

[dx100uk]

so faulty thus invalid/void  dn and thats fatal to any court claim under the CCA.

 

you have a new hearing date or awaiting judges orders following IF lowell comply with hid 7 day time limit?

its also worthy to note a debt buyer themselves cant terminate an A/C though i believe your are saying the OC did it?

 

might be better to not limit/focus on one issue moving fwd if you are invited to submit a supplementary Ws or statement .

 

 

 

 

[Gilbert Osullivan]

It was a 2 hour hearing cut short to just 30 mins as he said he wanted written submissions from Lowell within 7 days on what basis they (Vanquis) terminated the account.

 

Maybe he wants to be certain it was via issuing the DN, not a clause in the t&c's, so that I can then argue that the DN arrears amount are completely inaccurate.

 

Can't see why we didn't just focus on the arrears amount first though.

 

First hearing was adjourned as Lowell didn't have all their paperwork and then this.

 

 

[Gilbert Osullivan]

Hello

 

Victory but could only be short lived although it could get very complicated going forward.

 

I'm useless with tech so will copy part of the Judgment below-

 

Conclusions

 

7 The action premised on the Default Notice fails. A Default Notice is an opportunity to pay, it is essential the correct figure is quoted. However, this is a short term win for the Defendant. It concerns me that the Claimants can issue a new Default Notice based upon current default and add further interest. Accordingly, this Judgment is issued in Draft. There has been too little argument about this. Equally, the Defendant should have an opportunity to agree a repayment structure with the Claimants to resolve this matter. The parties may be able to file a consent order. The Claimants would lose costs but could use this claim as a vehicle to resolve the matter.

 

8 If no consent/tomlin order is received within 3 weeks of the date of this order (10/01/2022) or the Claimants show cause why (Lowells failed several times to come to the DN alleged arrears total during this action) the calculations (in the bad DN?) are wrong this action will be dismissed.

 

9 I have never heard an argument like this so I am open to further argument. (The Judge stated during a hearing it was most interesting consumer credit claim).

 

Raises many questions now-

 

1 Can Lowells now issue a new DN DURING THIS CLAIM? Or will they have to start another claim from scratch?

 

2 A new DN will have to account for 5 YEARS of missed payments and interest, I am only in this position due to Vanquis issuing a bad DN, terminating and selling the account to Lowells.

Surely I could then raise unfairness s140? My account was never in arrears. I breached no agreement.

 

3 The Vanquis ROP scandal has now come to the fore. I knew nothing of the ROP scandal until I discovered it researching for my defence. Vanquis credited my account after terminating it but didn't inform me.

 

The Court has stated the interest charged for ROP was hidden. Is this now deliberate concealment? As in Canada Square v Potter.

 

Lowells may have inadvertently opened the floodgates now for action against Vanquis for customers. Even though they have refunded the interest of ROP, they haven't refunded the sums paid for ROP principle sums.

 

From what I gather, any customer who threatened Vanquis with proceedings re ROP refunds were refunded to avoid court action.

 

The FOS decision re ROP was in March 2018, well within Limitation and, in any case, deliberate concealment effectively does away with claims out of time.

 

I await Lowells next move.

 

Any thoughts?

[dx100uk]

only the original creditor can (re) issue a default notice.

 

 

[Gilbert Osullivan]

Hello

 

Thanks for that.

 

Wasn't there a court case in the past few years though that said an assignee has the same rights a the original creditor and can issue a DN? I'll see if I can dig up the case.

Edited January 11, 2022 by dx100uk
unnecessary previous post quote removed

[AndyOrch]

The claimant will not be able to comply with the judges order....as an assignee they have very little history or information re the debt so would be impossible for them to correct the default notice information...get ready for a Notice of Discontinuance.

 

Quote

 It concerns me that the Claimants can issue a new Default Notice based upon current default and add further interest. Accordingly, this Judgment is issued in Draft. 

 

As an assignee the new owner of the debt does inherit all the rights of the agreement going forward......but the problem when it comes to litigating is that the debt has already or normally been terminated upon the sale of the debt...and therefore cannot issue a default notice in its own name...Notice of Sums in Arrears yes (but only if the agreement is still live) which in this case it isn't.

 

Watch this space.

 

Andy.

 

 

.

[Gilbert Osullivan]

Quick update.

 

Claim dismissed on the 27th January, informed by letter today.

 

To recap, I defended on the basis that the arrears claimed on the DN were vastly overstated thus inaccurate.

 

Thanks to all for help.

[dx100uk]

well done CAG.

 

please dont forget to donate if you can to keep this site up here for you and others to come.

 

dx

[AndyOrch]

Well done...so do we gather that the claimant couldn't provide anything further and failed to submit anything and therefore the claim was struck out by the court by its own volition ?

 

Andy