Need help with Statutory Demand - Lowell

[KenHo]

I should start by saying that I have read various threads on this subject

and have a fair idea about what to do and I am not the least intimidated about going to court etc.

 

What I would like help with is specific language.

 

Here are the details.

 

There is an alleged debt to Lowells (originally Capital One) with a default date of 2006.

I have made no admission or payments, so it is clearly Statute barred,

and I have sent them two recorded letters to that effect (based on your templates)

since they started to threaten me with a Statutory Demand.

 

They also haven't sent me the CCA that I asked for ages ago, but they did confirm they would.

 

Yesterday I was served with the Statutory Demand despite these facts.

 

The SD contains a number of statements which, in my view, are enough to show that this is Statute Barred

and I want to know how to refer to these in my submission.

 

They make three points (I have only included the key statements):-

 

"Defaut Date : 20 July 2006"

 

"The Creditor made numerous written demands for repayment in respect of the Agreement,

despite which the above sums remain unpaid".

 

"The Debtor has breached its contractual payment obligations ...."

 

It seems to me that, when I ask for this to set aside, I should be able to say something like

"the creditor states in his SD that the debt is older than 6 years, it is a contract,

and that I have made no payment since that date so it is Statute Barred".

 

So:-

 

1. Can anyone help me with the language to say just that?

 

2. This seems to me to be so cut and dried that it might be simply set aside without a hearing. Is this right?

If so how do I get my expenses for the work I have already done defending it?

 

3. I am a bit confused about whether I am obliged to attempt to contact the named person on the SD before this goes any further?

If I do, is it worth making them an offer to drop it if they pay all my expenses to date?

 

4. I have read somewhere on this forum (but can't find it) that it may be possible to also ask for an injunction

to stop them doing this again. Even if it is a long shot I would like to try, so any help with that?

 

Obviously this is just them using the SD process to get people to pay,

the SD even came with an enclosed letter (from the named person on the SD)

telling me how terrible the bankruptcy process would be for me and asking me to pay them.

 

This letter actually starts by telling me how the bankruptcy process will involve filling in lots of forms,

from which I deduce that it is aimed at the more vulnerable person.

This seems to me to be a textbook case of them using the SD process for debt collection

and so what should I do about that?

 

Any help most appreciated.

[unclebulgaria67]

Your thread need to be moved to the legal section on CAG, so will alert the site team.

 

If you are absolutely sure of the statute barred status and have proof of this, then yes you would set aside on that basis. If no proof of statute barred, I would suggest that you get hold of this.

[KenHo]

My point is that their own SD appears to prove that it is Statute Barred and they haven't provided any other data.

[unclebulgaria67]

My point is that their own SD appears to prove that it is Statute Barred and they haven't provided any other data.

 

Why don't you ask BW Legal to confirm the last payment date and ask why they have issued an SD for a statute barred debt ?

 

You have 18 days from the date you received the SD to do the set aside. By then you need to establish the debt is statute barred. Perhaps BW Legal/Lowells have made a mistake ? The easiest way is to phone BW Legal or whoever the contact point is, to query why they have issued an SD for a statute barred debt.

 

You do realise that an SD is purely issued by the debt owner or their representative. It won't have been passed to any court yet. The SD is only seen by a court, if a bankrupty petition is presented at a later date.

[honeybee13]

Hello there.

 

As suggested by Uncle Bulgaria, I'm moving your thread to the financial legal forum. I'll leave a short term redirect from this forum for you to follow.

 

My best, HB

[KenHo]

I wrote them two letters, both recorded delivery, to tell them it was statute barred. If they have this in writing then what is the point in phoning them?

 

Why do I have to prove that something is statute barred? Isn't it obvious if they state in their SD that the debt is 7 years old and I haven't paid anything. Don't they have to prove it isn't, especially since I have asked for that information and it hasn't been provided? It is impossible to prove the absence of something.

[unclebulgaria67]

I wrote them two letters, both recorded delivery, to tell them it was statute barred. If they have this in writing then what is the point in phoning them?

 

Why do I have to prove that something is statute barred? Isn't it obvious if they state in their SD that the debt is 7 years old and I haven't paid anything. Don't they have to prove it isn't, especially since I have asked for that information and it hasn't been provided? It is impossible to prove the absence of something.

 

Have a read through on CAG about what has happened to other people. People being bankrupt because they did not feel that they had to take action.

 

If you know that you have not made any payments towards the debt during the last 6 years, then just submit the set aside form to your nearest county court that handles insolvency cases. Ideally, you would want to state when you last made a payment. When there is a set aside hearing at the court, you should really have evidence of the last date you made payment, so you can show to the Judge that it is statute barred.

[KenHo]

Thank you for your interest, but I have asked some specific questions in my first post. It seems to me that their own SD states that the debt is Statute Barred and I want to know how to refer to this.

[unclebulgaria67]

Thank you for your interest, but I have asked some specific questions in my first post. It seems to me that their own SD states that the debt is Statute Barred and I want to know how to refer to this.

 

I don't think the SD does confirm statute barred status. All it says is that you defaulted with the original creditor in July 2006. Perhaps you made payments after this date ?

[KenHo]

It also says

 

"The Creditor made numerous written demands for repayment in respect of the Agreement, despite which the above sums remain unpaid".

 

I haven't paid anything, but neither have they supplied any statements or other documentation.

[dx100uk]

phone cap1 directly and ask them when was your last payment.

 

dx

[unclebulgaria67]

phone cap1 directly and ask them when was your last payment.

 

dx

 

Ken I know you are probably feeling a little frustrated having to make these enquires, but you really must read some of the many threads on this site. BW Legal/Lowell sometimes just plough on and there have been people made bankrupt when they should not have been.

 

If the SD is worded as you say it is clearly wrong, but you should establish when you actually made the last payment and see if you can obtain this in writing. If it gets to a set aside hearing, you can of course claim your costs, which I think as a LIP are £18 an hour. But you would have to detail these.

 

Demolish their case with evidence and don't just submit a set aside based purely on the POC in their SD.

[batty69]

Ken I know you are probably feeling a little frustrated having to make these enquires, but you really must read some of the many threads on this site. BW Legal/Lowell sometimes just plough on and there have been people made bankrupt when they should not have been.

 

If the SD is worded as you say it is clearly wrong, but you should establish when you actually made the last payment and see if you can obtain this in writing. If it gets to a set aside hearing, you can of course claim your costs, which I think as a LIP are £18 an hour. But you would have to detail these.

 

Demolish their case with evidence and don't just submit a set aside based purely on the POC in their SD.

 

Uncle I agree with you that the defendant needs to be getting as much evidence as possible because these cases can have so many twists and turns due the DCA dodgyness and not rely purely on POC.

 

However if a claimant in their POC's declares a statue barred date along with a statement that implies no payments have been made since that date then the claimant has created a material fact by declaration, therefore the onus should be on the claimant to prove/disprove if they want to change this fact later.

 

I'm not to familiar will SD's, but have seen on a few threads and they can turn quite nasty if not handled correctly so I implore the OP to follow the advice of those knowledgeable in these matters. But I do agree with the OP, that he does indeed have a point and argument and have used successfully the same myself. However they should not base their entire case around this, and seek other evidence and verification of payments themselves.

[mikeymack2002]

Can you post up the SD letter in PDF format editing it out to take out your personal info including any bar codes, this is of the essence and asap before a default get issued, if you have any other documents regarding this and feel you can post them regarding this I would, so we can see the full picture and advise accordingly

 

MM

[KenHo]

This is the current situation, so what next?

 

I could not get an answer as to why they claim it isn't statute barred before I had to submit my application to set aside the SD. They simply said that they needed to get that information from the original creditor and they hadn't yet heard back.

 

I submitted my application saying it was statute barred as the main reason, but also adding other paragraphs about them not sending a CCA, or in fact anything else at all other than an SD.

 

I sent a SAR to the original creditor, but don't expect to hear anything back for ages.

 

After all this had been done they then sent me a letter claiming I made a payment in 2009, this being during the time they claim they owned the debt. They sent no details of the amount of the payment or the format, nor any document/proof of any kind.

 

I wrote back and denied this payment, stating again that it was statute barred, and telling them that they should be able to provide details of this alleged payment if it was made since they claim they owed the debt, and should have been able to provide such information from the very start. So send it now. Obviously they haven't.

 

I have received a letter from the court saying that they hadn't yet done anything and explaining what they would do next, effectively just acknowledging that something was happening. It would go before a judge then a hearing etc etc.

 

I am certain no payment was made and can prove this with documentary evidence.

 

What I am seeking advice on is:-

 

1. Should I contact Lowell/BW yet again (this will probably then be 4th/5th letter saying it is statute barred since this sorry tale started) and give them yet another opportunity to withdraw?

 

2. Should I (am I even allowed to) take their letter where they claim I made a payment and my documents to refute this, to the court and "add" them to my application.

 

3. Should I just wait for a hearing, tell the judge how unreasonable they have been, and then present these documents?

 

I am somewhat hesitant to show Lowell anything just in case they then come up with some other dubious reason why it isn't statute barred. However, at the moment I think that the mysterious payment is simply an arithmetical mistake on their part rather than malice, and the documents I have seem to demonstrate that, but may need explaining in person.

 

Any advice?