Letter referring to a statutory demand from Hamptons/Lowell - confused

[dibdob59]

Hi CitizenB

 

Thanks, I will do that. Not sure about the line in the letter asking for another copy of an SD though. I know Hamptons need to be told I have not had an SD but do I really want to request one? Isn't just telling them I have not had it enough?

 

You suggested padding the letter out. What else shall I say. Do I tell them I have CCA'd Lowells?

 

As before any help would be appreciated as I have never had to do anything like this before and the threat of bankruptcy is extremely upsetting.

 

Many thanks

[42man]

(send recorded)

 

Dear Sir

 

I am in receipt of your letter dated (xxxxxx)

 

In the letter it is stated that a statutory demand had been 'served'. For the avoidance of doubt, Firstly I am not aware of ANY debts to my name, and I have not been served with any kind of demand and would kindly request that you send to me by return a copy of the demand (by recorded delivery) with the date that it was served upon me.

 

Please be aware that the demand will be vehemently defended and will be set aside in my local county court. I would also request that you send to me copies of the agreement, copies of statements for the duration of the account, the default notice, the termination notice, the notice of assignment, the deed of assignment, details of any insurance 'cover' that may have been aded to the account, and also a copy of your official complaints procedures, which as I understand is a requirement of your ability to gain an Office Of Fair Trading Licence.

 

If you subsequently send me the demand and not any of the required paperwork as requested above, and if for any reason there are triable issues then when the matter of costs arises, I will show this letter to the judge.

 

I trust this makes my position completely clear.

 

I am also forwarding this letter to the Office Of Fair Trading and my local MP

 

(Yours faithfully)

 

Don't hand sign

Edited April 27, 2012 by 42man

[citizenB]

42man has resolved your concerns, dibdob. Send the letter in post # 55 that has been drafted for you.

[dibdob59]

Thank you so much for your help 42man, I am feeling rather overwhelmed by this at present.As a matter of interest what is mean by' if there are triable issues' as I do not understand the term?Again, my thanks to both you and CitizenB

[citizenB]

It means if there are issues that can only be resolved by the court.

[42man]

Then they should not be heard at a statutory demand hearing/dismissal

[citizenB]

Hi, can anyone tell me if a payment has been made in the last 6 years but the creditor (Lowell) cannot provide any CCA of any kind despite 2 letters sent by recorded delivery and at 1st court hearing nothing produced, is a statutory demand likely to be set aside ? Court hearing was adjourned for us both to provide documents/witness statements.

 

Jezzard, itI am going to start a new thread for you so you can give us more details of your situation then you can be better advised.

 

Hold tight and I will send you a link in a few moments.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?348930-Stat-demand-Lowells-Advice-required

 

jezzard's thread can be found by following the link above.

[dibdob59]

Hi

Well I sent both letters over 3 weeks ago, the one 42man compiled in #55 to Hamptons and the CCA letter to Lowells. I have heard nothing from either of them.

 

Considering an SD is supposedly involved I am worried as to how I should now proceed. I believe the CCA request to Lowell has a 12 + 2 days time limit which has now expired - should I do something about this?

 

Also can anyone please advise me how long I have to give Hamptons to respond to 42man's letter requesting a number of key documents as I am not sure of the timescale allowed for their reply.

 

Once again, many thanks for any help.

[42man]

You have made more than a reasonable attempt to gain information and make your stance known to them.(Did you check the recorded delivery slips to see if they had been delivered to Lowells ?) I would suggest you MUST send copies of the letters you have written to the Office Of Fair Trading. or outline an email to them detailing what they have sent and how you have responded. The only other possible option is to send a SAR to Lowells. Unfortunately it costs £10, however bearing in mind their letter it could be £10 well spent and useful in court too IF it gets to that stage. Otherwise try your best to relax, and keep us posted.

[dibdob59]

Thank you for your reply.

 

I am just worried that Hamptons/Lowell will proceed with the statutory demand they claim to have served me with. Is it likely they would do this since I have now written to them?

 

As Lowell have not responded to the CCA request within the timescale do I have to send a letter stating the account is in dispute:? Would this stop them proceeding with the statutory demand in court?

 

I am worried that silence from both Hamptons and Lowell may suddenly result in a letter form the court stating they are petitioining for bankruptcy - is this likely now I have sent the letters?

 

I am sorry but I am very concerned that their failure to respond could result in a nasty shock.

 

Many thanks for any advice.

[42man]

If that happens then you can show that there is a significant dispute.....especially so as you have never seen the stat demand...

[dibdob59]

Many thanks

[jezzzard]

Hi,

I have already posted about my own 'experience' with Lowells but it may put your mind at rest to know I was served a SD by them,

we went to court and hearing was adjourned till June with court order that Lowells must exhibit original CCA,

details of all correspondence between them and myself and details of payments they claim I made within last 6 years to the court and copies to me by 14th May.

 

I have not received anything.

 

I checked with court and nothing has been filed.

 

I have of course notified the court and am presently waiting for their response, which of course I hope to be in my favour 'setting aside' the SD.

 

It is outrageous they get away with this kind of intimidation without any back-up.

 

My advice would be to stand up to them, face them out in court.

 

I wil let you know outcome of my own case and in the meantime wish you luck with yours.

[dibdob59]

Hi Jezzzard

 

Thank you for your reply to my post. I too cannot believe that they are allowed to operate in this way, threatening people with bankruptcy and generally using bullying tactics.

 

I would be interested to hear how you get on with your case and wish you every good luck

[42man]

OK.....you need to get this set aside.

[42man]

Would you like some guidance on what to write ? Are you prepared to find your resolve and show the judge just how angry and upset you are at having to deal with this frivolous, vexatious and unlawul claim ?

 

I'd be happy to help....

[dibdob59]

Hi 42man

 

I would be very grateful for some guidance please as I am unsure what I should do now.

[42man]

You will need forms 6.4 (set aside) and 6.5 (witness statement) which you must try and complete as soon as possible. Then you should take them personally in to the court once completed (you can send them in by recorded delivery) You should make at least 4 copies of everything including the recent correspondence. Once the court have received your forms you should hear from them for a date to get this set aside.

 

Did you send off the CCA request ?

 

Any chance (following on from what you said earler) that the debt may be statute barred ?

 

The defendant avers that the alleged debt is barred by the statute of limitations Act 1980

 

The defendant believes that the claimants use of a statutory demand is trite law and merely a tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of the process.

 

The defendant wrote to the claimant (on date XXXX) (Exhibit A) requesting full disclosure of all documentation after receiving a letter (Exhibit B) in which it stated (copy the letter Lowells/Hamptons sent you which stated that the demand had been served) including a request for a copy of the statutory demand which the claimant claims to have served. The defendant contends that the statement made by the server is fatally flawed (explain why the statement made by the process server is false)

 

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act. (Exhibit C - provide a copy of the letter requesting the argreement)

 

Despite the requests made in my correspondence of (date you disputed the debt and requested all relevant paperwork) The claimant has failed to provide any copies of any statements for the duration of the account, an original copy of the agreement*, valid default notices*, termination notices*, deeds of assignment, notices of assignment, details of any payment protection insurance, *as required under the Consumer Credit Act.

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

The Consumer Credit Act in section 78(6) States that

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement;

 

 

For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007.

 

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

(a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007.

 

REFERENCE TO CASE LAW

 

1. As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:
   ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’
   

 

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Debt/Claim (Edit), at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

In light of the above evidence the defendant gracefully requests that

1 - The Judge dismisses the demand on the above evidence as this claim is flawed, unlawful, vexatious and frivolous and has been substantially disputed.

2 -The judge grant me a Tomlin Order or Bankruptcy Restraining Order in the likely event that this so called ‘Debt Collection Agency’ can NOT attempt to engage in frivolous and unlawful litigation

 

The defendant also requests the Judge orders the claimant to pay my full costs + compensation (either in the standard or the indemnity) in light of the distress and damage to my family and reputation in support of this I quote –

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collectionwhere there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner). Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

 

The defendant also wishes to make the point that this company are in breach of CPUTR2008

 

Offences relating to unfair commercial practices9. A trader is guilty of an offence if he engages in a commercial practice which is a misleading action under regulation 5 otherwise than by reason of the commercial practice satisfying the condition in regulation 5(3)(b).

 

Which clearly state...

 

Misleading actions

 

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(3) A commercial practice satisfies the conditions of this paragraph if—

(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

(i)the trader indicates in a commercial practice that he is bound by that code of conduct,

 

Interpretation2.—(1) In these Regulations—“average consumer” shall be construed in accordance with paragraphs (2) to (6);“business” includes a trade, craft or profession;“code of conduct” means an agreement or set of rules (which is not imposed by legal or administrative requirements), which defines the behaviour of traders who undertake to be bound by it in relation to one or more commercial practices or business sectors;“code owner” means a trader or a body responsible for—(a)the formulation and revision of a code of conduct; or(b)monitoring compliance with the code by those who have undertaken to be bound by it;

 

“trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trade

 

The defendant refers to the code of conduct stated by the Credit Service Association to which Lowells are a member -

 

The code of conduct clearly states

 

q) Where a debt or the sum owed is disputed, as

soon as is practicable, supply information to the

debtor in support of the claim. Where no

information has been supplied by the creditor,

obtain the required support, or failing that cease

collection action.

 

d) Comply with Debt Collection Guidance as

Published by the Office of Fair Trading

 

b) Adhere to all relevant requirements under the

Consumer Credit Act 2006 and any other

relevant legislation

 

c) Comply with this Code of Practice and

follow any guidance notes issued by the

Board of the Association.

 

To which the Office Of Fair Trading clearly state

 

(ii) misleading debtors as to their rights and obligations

 

If a creditor has been in regular contact with a debtor before the debt is statute barred, then we do not consider it unfair to continue to attempt to recover the debt

For example, stating or implying that debtors may be the subject of court action for the sum of the statute barred debt when it is known, or reasonably ought to be known, that the relevant limitation period has expired.

The person seeking to recover the debt would effectively be relying on the debtor not knowing the relevant legal provisions.

 

© where businesses seek to recover debt that they know, or reasonably ought to know, is extinguished, we would be very likely to consider this an unfair or improper practice which calls fitness to hold a consumer credit licence into question.

 

Physical/psychological harassment

3.6 Putting undue pressure on debtors or relevant third parties

 

3.7 Examples of unfair or improper practices are as follows: (for example, appointed representatives) is considered to be oppressive and an unfair or improper practice.

 

n. making undue, excessive or otherwise inappropriate use of statutory demands when pursuing arrears or debts

[42man]

Just bear in mind that if you setting aside a statutory demand and it is past the 18 days (and despite your story above) you may have to pay an 'out of time' fee to set aside, I really don't think that you will but just be mindful of this....you can claim this back on your costs, but coasts don't have to be in until closer to the date of the hearing...

[dibdob59]

42 man

 

Thank you for everything you have sent.

 

With regard to the CCA, as I outlined in #62 above I CCA'd Lowell nearly 4 weeks ago and they have not responded. Do I need to send anything more to Lowells as a result of their failure to respond.

 

Many thanks

[dx100uk]

failure to comply letter library tab top left dca section

 

dx

[42man]

Make sure as part of your defence/witness statement you attach the copies of the CCA request and the recorded delivery slip

[dibdob59]

Hi 42manYou asked in your post if the debt is statute barred and all I can say is that it does not appear on my credit reference.Does that help?Thanks

[42man]

Is there any chance your ex may have paid anything towards it in the last 6 years ? If there is nothing on your credit reference then it is likely to be statute barred....