SD BWLegal/Lowells - 2003 Lloyds credit Card debt - **SET ASIDE**

[citizenB]

 

Does anyone have a reference for the need to actually include the requirement

to mention the OFT sheet in the text of the actual DN? For example, it’s not

mentioned in this OFT notice:

 

Post 43 above, DB - I have included a link to 10A and the statement that should be on the DN.

[DonkeyB]

Thanks, CB – if only I’d read your post...

 

I’ll get my coat.

 

These things are buried so deep they are hard to find!

[DonkeyB]

I edited my post, CB, to stop myself looking totally stupid

[gforce2k]

Thanks for your help CB/DB/everyone,

I'll use the DN quote in Post 43.

 

I was hoping that there might be some mileage in the partial terms argument so any advice on that would be great to either say yes an option or no forget it.

Some of the conditions referred to in the signed CCA supplied by Ltsb are not present anywhere on the accompanying page of terms,so surely i didn;t have enough information when i signed?

 

BTW I've received the letter from BWlegal stating that they aim to get back to me in 12 days with the requested docs dependent upon how quickly the OC responds to their request.

Until that time the account is on hold etc.

 

regards

gf2k

[gforce2k]

Hi everyone,

Just to make sure I'm covered here as today is the 18th day after the SD:

 

Have i covered myself completely by responding verbally to them within the 18 days and they confirming the a/c is on hold?

Or do I still have to put the application to set aside in to the court today to completely cover myself against them presenting this same SD at the court at a much later date?

I'm sure you will say don't worry just present their letter but I'm still concerned that it may be possible for them to present this same SD to the court at a later date (when they have received the docs from the OC) - it will be well after the 18 day deadline and too late for any application to set-aside.

 

If you advise to be safe put in an application to set aside the SD is it usually free within 18 days?

Thanks,

 

gf2k

[gforce2k]

Hi, I've spoken with the court and they are a little confused.

They are happy for me to set aside but i need a case number which was not supplied in the SD.

The guy i spoke to admitted he couldn't advise me properly so can anyone tell me is this usual with SDs?

He said I couldn;t come in to set aside today anyway as there is no case number???

 

Hopefully I'm covered having already been in touch with BWLegal but i don't want to find out later that there was some way for me to apply and that they can jump straight into bankrupcy proceedings later on if i don;t do so today.

 

thanks,

gf2k

[gforce2k]

Big problem - just found out that I have to put the application to set aside in today to cover myself!!

After speaking with the court I spoke with bwlegal re the lack of case number etc.

 

The rep I spoke with admitted SDs usually have no case number, that is issued by the court when insolvency/bankrupcy proceedings are initiated by them but I CAN still apply today if i file a copy of the SD with the N244.

 

He said that if when they get the docs from LTSB they view that i have no valid dispute they will petition for bankrupcy.

At this point the 18 days deadline to apply to set aside would have expired!

 

If I apply today I would have to apply WITHOUT their agreement (£80) (with agreement is £45).

If successful that would be the end of any insolvency proceedings and they would have to take direction from their client.

 

So I'm back to square one it seems, to be safe I'm going to have to put in a set-aside application at the court before 3/3:30pm TODAY!

 

I have the time to do this I just need some pointers as to how to best make the application.

 

How detailed do i have to be?

A full defence or just rudimentary bullet points? such as:

- the account has been in dispute since Apr 2009

- the Default Notices are bad, none of those issued have the requisite OFT sheet or wording.

- the the CCA was accompanied by partial terms

- bwlegal letter recognising a/c in dispute and putting the account on hold

 

- would the above be sufficient for the judge to see their is cause to argue in court or should I change anything/provide more detail or would you advise anything?

 

I just need the bare minimum, enough for the judge to see this needs to be argued further and cannot just go straight to insolvency.

 

Are there any posts that will outline what to put in to strengthen the application , case law quotes etc.?

thanks.

gf2k

[unclebulgaria67]

In the DCA success folder there are examples.

 

See this thread http://www.consumeractiongroup.co.uk/forum/showthread.php?380607-lowells-statutory-demand-i-am-panicking-**-SET-ASIDE-**/page5

[DonkeyB]

Just get that in to court – it will constitute a defence. A hearing will then be arranged for the set aside itself.

 

The judge won’t be happy at BW’s actions – giving you extra time when they still intend to go for bankruptcy. It’s an abuse of process.

 

Keep records and recordings of everything.

 

You were warned they’d play dirty.

[AndyOrch]

Hi Gforce

 

Responding to your alert.

 

You are using form 6.4 are you not ? not a N244...there is no case numbers on SD,s they dont come from the court.

 

 

Regards

 

Andy

[gforce2k]

Hi Gforce

You are using form 6.4 are you not ? not a N244...there is no case numbers on SD,s they dont come from the court.

 

The court seemed to think it was an N244 i should use so that's what I was intending to put in.

Not sure what a 6.4 is Andy, where do i get that from?

 

cheers

gf2k

[AndyOrch]

http://www.consumeractiongroup.co.uk/forum/showthread.php?406102-LEGAL-Form-6.4-amp-6.5-Application-to-set-a-side-a-Statutory-Demand

 

N244 are used to set a side County Court Judgments...hence the claim number required.

[gforce2k]

Hi AO,

found it.

should I also use the witness statement 6.5 or just 6.4 in this case?

6.4 seems to be an application for a set aside hearing, it asks for a date etc. at the top?

 

cheers,

gf2k

[gforce2k]

http://www.consumeractiongroup.co.uk/forum/showthread.php?406102-LEGAL-Form-6.4-amp-6.5-Application-to-set-a-side-a-Statutory-Demand

 

N244 are used to set a side County Court Judgments...hence the claim number required.

 

It looks like I have to put my arguments in the WS and there are 8 options.

 

I'm assuming pick number 1 (or possibly 7?):

(1) “Do not admit the debt because…” [here state grounds]

(2) “Admit the debt but not that it is payable immediately” [state reason], or

(3) “Admit the debt as to £ , and that this is payable but that the remainder is not immediately payable. I am prepared to pay the amount of £ immediately” [state reason], or

(4) “Admit the debt and am prepared to secure or compound for it to the creditor’s satisfaction by …”

[state nature of satisfaction], or

(5) “Say that the debt is a secured debt” [give full details of security and its value], or

(6) “Have a counter-claim (or set-off or cross demand) for £ being a sum equal to (or exceeding) the claim in respect of” [here state grounds of counterclaim etc.], or

(7) “Say that execution on the Judgment of the Court has been stayed” [give details], or

(8) “Say that the Demand does not comply with the Insolvency Rules in that ………” [state reason]

 

Cheers,

gf2k

[AndyOrch]

6.4 relies on 6.5 to support it that is your evidence.

[gforce2k]

This is the Set Aside Form 6.5 Witness Statement, hope it's ok:

 

1. That on 4th October 2013 the statutory demand exhibited hereto and marked “A” came into my hands.

2. That I ©

Believe the statutory demand does not comply with the rules of insolvency in that the defendant has been unable to contact the person named on the demand as Litigation Executive for the alleged creditor, a Mr B S S of BWL Solicitors

 

The defendant tried to contact a Mr B S S on no less than three occasions, the defendant left messages with and spoke to colleagues of Mr B S S but these calls have not been returned; this is in contravention of rule 6.2 of the insolvency rules

 

On one of these occasions, at 16:55 on 17th October 2013, the Defendant spoke with a Mr R C of BWL Solicitors. The defendant confirmed to Mr C that the alleged account had been in serious dispute with the original creditor since 1st April 2009,

 

Mr C confirmed the Defendant that the Claimant was not aware of the dispute and did not have possession of any of the documentation referred to in the Statutory Demand; the alleged agreement, default notice, or notice of assignment required under s78 of the Consumer Credit Act 1974.

 

At the same time the Defendant confirmed to Mr R C the intention to set-aside the Statutory Demand at which point Mr C told the Defendant that it was no longer necessary for the Defendant to apply for a set-aside of the Statutory Demand they would not be petitioning for bankruptcy with the alleged account in clear dispute.

 

The claimant’s representative, Mr C confirmed he would write to their client, the creditor Lowell Portfolio 1 Ltd, regarding the dispute and my request for documentation I under s78 of the Consumer Credit Act 1974 and confirm the same in writing.

 

I quickly received a written reply on 18th October 2013 from BWL hereto and marked ‘B’ confirming the telephone conversation of 17th October 2013 and what was discussed, confirming receipt of the defendant’s request for documentation under s78 of the Consumer Credit Act 1974 and confirming the alleged account had been put on hold.

 

The legal representatives of the claimant have failed to serve with the statutory demand a copy of the alleged agreement, statement of account, default notice, termination notice and notice of assignment for this alleged account.

 

DEFAULT OF CCA REQUEST

The original creditor remains in default of a request for a copy of the alleged agreement made under the Consumer Credit act 1974 – the defendant requested a copy on 1st April 2009 and to this day the full terms upon which this demand is based has not been provided.

The claimant already anticipates default of my request for documentation under Consumer Credit Act 1974 in their letter of 18th October 2013 hereto and marked “B”

 

DISPUTED ACCOUNT

The alleged account has been in-dispute with the alleged original creditor Lloyds TSB Bank Plc since 1st April 2009

 

The legal representatives of the claimant and the claimant, the alleged creditor, are aware that the alleged account has been in dispute since 1st April 2009

 

The figure stated as balance due for the alleged account in the Statutory Demand does not match that of the disputed alleged account

 

The alleged creditor has failed to serve a notice of assignment in accordance with the law of property act 1925 to confirm that the creditor has the lawful right to issue this demand.

 

The alleged creditor has failed to confirm if this notice of assignment was absolute or equitable.

 

The defendant draws the court’s attention to the high court judgment Wilson v First County Trust.

The Wilson case made it clear in the absence of an agreement the creditor could not enforce monies due under ordinary contract law regardless of whether they could prove the debt existed or not. As this is a decision of the House of Lords, it is binding.

 

DEFAULT NOTICE

The alleged original creditor has failed to serve a default notice in the prescribed format

 

The Need for a Default notice

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

Notwithstanding the above points, the defendant puts the claimant to strict proof that any default notice sent to the defendant was valid. It is noted note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

 

EXCESSIVE CHARGES

1 - The Claimant’s charges which may have been applied to the account are unfair under Schedule 2(e) of the Unfair Terms in Consumer Contracts Regulations 1999, which state that ‘a term is unfair if it requires any consumer who fails to fulfil his/her obligation to pay a disproportionate high sum in compensation. In this case, it is likely that the alleged claimant/ or original creditor has charged an amount that is not proportionate to the amount of any payment not made.

 

2 - Further, or in the alternative, the claimant’s or the original claimants charges are a disproportionate penalty and therefore unlawful and irrecoverable at common law. (Dunlop Pneumatic v New Garage [1915] AC 79 and also Murray v Leisure Play [2005] EWCA Civ 963)

 

THE PERFECTION OF THE ASSIGNMENT

1 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2 Since the claimant should have a sent a notice of assignment it is assumed that this was done via the postal service.

 

The requirements for service via the post are

Law Of Property Act (1925) s196

Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house

and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

3.3 -. the defendant did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and the defendant has asked the other members of my family if they signed for such a document; they have assured the defendant that they did not.

3.4 - To the best of the defendants knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent

 

SET ASIDE AND COSTS

On the above information the defendant requests that the demand is set aside and requests costs in favour of the defendant as a LITIGANT IN PERSON.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

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

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 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 collection where 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)

 

Any thoughts welcome.

Thanks,

gf2k

[gforce2k]

Hi Andy, I've entered the Form 6.5 text if you could have a look I'd appreciate it.

thanks, gf2k

[AndyOrch]

Not really my forte GF I personally would just put that

 

 

" DEFAULT OF CCA REQUEST

 

The original creditor remains in default of a request for a copy of the alleged agreement made under the Consumer Credit act 1974 – the defendant requested a copy on 1st April 2009 and to this day the full terms upon which this demand is based has not been provided.

The claimant already anticipates default of my request for documentation under Consumer Credit Act 1974 in their letter of 18th October 2013 hereto and marked “B” "

 

 

Read here post #2

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?371191-Lowells-Statutory-Demand-(Capital-One)-***-WON-COSTS-***

 

Regards

 

Andy

[Banking on change]

Hi gforce2K

 

My wife had SD served in exactly the same way. Same date and same companies involved too. I hope you've already taken yours to the court as by my calculation the last day was the 22nd.

 

There are a few typos in your text but I'm sure the judge will understand. I'm not legally trained (been relying on Andy's great advice too) but it looks like a good defense to me.

 

I didn't realise they had to send a copy of the default notice etc with the SD.

Did yours come without being enclosed in an envelope too?

 

Andy, I followed the links you sent and read the excellent and very detailed article but I still couldn't see whether sending the papers without the envelope was allowed so as to bring the defendants attention to the service, obviously helping the claimant. Or if this was an error that constituted a failure of data protection. The article was extremely detailed but I'm suffering with flu at the moment so a splitting head ache and eyes that feel like they are about to leave my skull aren't helping. Are you able to clarify this position?

 

Good luck with yours Gf2k

[gforce2k]

Hi gforce2K

 

There are a few typos in your text but I'm sure the judge will understand. I'm not legally trained (been relying on Andy's great advice too) but it looks like a good defense to me.

 

Thanks, saw the typos and noticed i put the wrong date for receiving the SD but too late now, hopefully as you say the judge will see them as typos/honest mistakes.

 

I didn't realise they had to send a copy of the default notice etc with the SD.

Did yours come without being enclosed in an envelope too?

Think it did, not sure what they had to send in truth, the defence I found mentioned it.

 

Good luck with yours Gf2k

Thanks, have the hearing just under 3 weeks away on 10th Dec so if anyone has any advice as to what to read/prepare/send out I would really appreciate it.

 

All the best.

GF2k

[Banking on change]

Hi GF2k

 

We're up a few days before you so I'll come back and let you know if I have any pointers.

So far though BW have failed to provide the original agreement and other documents that they agreed to send.

 

Anyone have any advice about the fact they haven't complied?

[gforce2k]

same here, none of the docs provided yet.

although I mentioned/requested the missing docs during the original call with them they subsequently sent me a letter acknowledging receipt of my 'CCA request' so surely still legally liable to supply within the given time?

would they be waiting to do that at the hearing?

 

either way should I send a non-compliance letter? or another CCA style request giving them yet another chance to comply?

 

cheers,

gf2k

[unclebulgaria67]

same here, none of the docs provided yet.

although I mentioned/requested the missing docs during the original call with them they subsequently sent me a letter acknowledging receipt of my 'CCA request' so surely still legally liable to supply within the given time?

would they be waiting to do that at the hearing?

 

either way should I send a non-compliance letter? or another CCA style request giving them yet another chance to comply?

 

cheers,

gf2k

 

They would have to provide the CCA at some point if they wish to enforce the debt, providing that you insist on this, attending any court hearing. If they did supply this at the court, you could ask for an adjournment so that you have a chance to review the document and seek relevant advice, being that the claimant has only just supplied the CCA, even though they were asked for this 2 months ago.

 

I have read before that some Judges don't like continued letters to creditors about the same issue. You have sent the CCA req, they have said that they have this and they have not supplied the CCA yet.

[gforce2k]

Thanks UB67,

I was just intending to write to them by recorded post with a 'non-compliance' type letter but if the consensus is not a good idea then I won't.

 

Could you offer any insight into whether the typos in the Form 6.5 WS (Post #66) and particularly the incorrect date I put as receipt of the SD (received on 3rd not 4th) can be used against me/bring my honesty/WS into doubt?

 

Apart form that what kind of court bundle do i need to prepare for the hearing on the 10th?

Perhaps you know a link to a relevant thread/post?

cheers,

gf2k

[unclebulgaria67]

Not sure on the merits of a non compliance letter. A comment from a Judge hearing a set aside that it was unnecessary was reported here awhile back. But that was just one Judge.

 

You can correct an typos at any hearing. From what I read claimants appear to correct their typos at hearings without any detriment. So I can't see how they can hurt you, as long as you clear up any wrong dates etc, when you are required to do so.

 

Not sure what you need to prepare, apart from copies of anything you refer to in your statements. If you have referred to any case law, copies of the cases you cite.