SD from BWLegal/Lowells - 2003 credit Card Account

[TitleistproV1]

Can someone be kind enough to point me in the right direction.

 

I'm after a template for a response to a creditor after an SD has been served,

 

many thanks

[ims21]

I have moved your thread to the Legal forum where the guys will be along to help as son as they are available.

 

Please tell the full story so that the guys are better equipped to help you.

[TitleistproV1]

Of course,

 

Received an SD last week from Lowells for a credit card debt.

 

The SD itself carries no form numbers at the top nor page numbers at the bottom, basically it has been written on blank paper.

 

I have had an SD before for a different debt and successfully had it set aside as it was in dispute.

 

I have SAR'd the original creditor and sent a request to Lowells for a copy of the agreement.

[The Mould]

Can someone be kind enough to point me in the right direction.

 

I'm after a template for a response to a creditor after an SD has been served,

 

many thanks

 

There is no such template letter, you must respond to the statutory demand - forms 6.4 & 6.5 I believe opposing this statutory demand and within 21 days of service. Check with your local County Court to see if they are able to deal with this type of action!

 

OK, has the creditor served a valid statutory default notice on you pursuant to s.87(1) CCA 1974 (as amended) ? If not, you need to argue that he cannot proceed with this enforcement action ( research this area of law!)

 

Secondly, were you engaged with the creditor as regards an agreement that you can pay the debt claimed at a reduced rate and have you continued to honour this?

 

Is there any ppi on this account, whereby you can argue that amount claimed is in dispute and denied?

 

Are there any excessive and disproportionate charges added to this agreement?

 

How old is the credit agreement?

 

Please provide full and accurate answers to the above and also please provide us with a chronology of events that led to the creditor issuing this statutory demand; the more info you can provide on this matter will place us all in a better position of understanding the same and providing you with the best possible advice on the same.

 

The Mould

[TitleistproV1]

OK, has the creditor served a valid statutory default notice on you pursuant to s.87(1) CCA 1974 (as amended) ? If not, you need to argue that he cannot proceed with this enforcement action ( research this area of law!)

 

Answer I cannot locate or remember receiving a Default notice from the original creditor.

 

Secondly, were you engaged with the creditor as regards an agreement that you can pay the debt claimed at a reduced rate and have you continued to honour this?

 

Answer: No I just stopped paying the CC Company in 2009 and have not made any payments since.

 

Is there any PPi on this account, whereby you can argue that amount claimed is in dispute and denied?

 

As far as I am aware there is no PPI on the account, there will be charges for late payment although probably not excessive.

 

Are there any excessive and disproportionate charges added to this agreement?

 

How old is the credit agreement?

 

The agreement probably dates back to 2003 at least but cannot be sure.

 

Please provide full and accurate answers to the above and also please provide us with a chronology of events that led to the creditor issuing this statutory demand; the more info you can provide on this matter will place us all in a better position of understanding the same and providing you with the best possible advice on the same.

 

The Mould

[TitleistproV1]

Received the usually letters from Lowells threatening legal action, then hit with SD last week.

 

Account was sold to them in June

 

I have not spoken with them, offered any payment plan.

 

Sent the SAR and Request for CCA after receiving SD

[The Mould]

OK, has the creditor served a valid statutory default notice on you pursuant to s.87(1) CCA 1974 (as amended) ? If not, you need to argue that he cannot proceed with this enforcement action ( research this area of law!)

 

Answer I cannot locate or remember receiving a Default notice from the original creditor.

 

Secondly, were you engaged with the creditor as regards an agreement that you can pay the debt claimed at a reduced rate and have you continued to honour this?

 

Answer: No I just stopped paying the CC Company in 2009 and have not made any payments since.

 

Is there any PPi on this account, whereby you can argue that amount claimed is in dispute and denied?

 

As far as I am aware there is no PPI on the account, there will be charges for late payment although probably not excessive.

 

Are there any excessive and disproportionate charges added to this agreement?

 

How old is the credit agreement?

 

The agreement probably dates back to 2003 at least but cannot be sure.

 

Please provide full and accurate answers to the above and also please provide us with a chronology of events that led to the creditor issuing this statutory demand; the more info you can provide on this matter will place us all in a better position of understanding the same and providing you with the best possible advice on the same.

 

The Mould

 

OK, then argue no valid statutory default notice served, therefore, creditor not entitled to enforcement proceedings.

 

Agreement relkied upoin by creditor is dated 2003, you believe that the same doies not comply with s.61 of CCA (1974) as amended and is therefore unenforceable pursuant to s.127(3) of CCA 1974.

 

Check, double check and triple check your own paperwork for this agreement, see if you can find the default notice.

 

Double check charges for late payments, these may be excessive.

 

So far, you will struggle to defeat this statutory demand and you will be well advised toi contact the creditor directly and offer to pay him a reasonable amount that is within your means.

 

Come back on the above, so that we know your best options in this matter.

 

Kind regards

 

The Mould

[TitleistproV1]

OK,

 

I will have a good look for the DN, I know for sure I do not have a copy of the CCA.

[TitleistproV1]

Is it worth noting that I have not received a valid NOA for this account. An NOA was sent but it contained an incorrect account number.

[The Mould]

Is it worth noting that I have not received a valid NOA for this account. An NOA was sent but it contained an incorrect account number.

 

Minor, so not worth arguing against.

 

Really looking for legal grounds to defeat the SD.

 

What does SD say?

 

Did you make a request for a copy of the CCA and has the creditor complied with such?

 

I am trying to help you defeat the SD, not extinguish the debt owed. If you can defeat the SD, then you can defeat bankruptcy proceedings!

 

Kind regards

 

The Mould

[The Mould]

Right, how much is SD for?

 

How old is credit agreement?

 

What was the series of events that led your creditor to issue this SD?

 

Give me everything, full details and leave nothing out, including any matters that are adverse to you!

 

Kind regards

 

The Mould

[TitleistproV1]

What does SD say?

 

"The Debtor entered into an agreement ("Agreement") with teh original creditor set out below pursuant to which the debtor agreed to pay the original creditor for services and/or facilities provided to the debtor.

 

The Debtor has breached its contractual payment obligations pursuant to the agreement, in respect of whcih the original creditor has notified the Debtor of the breach and made demand for payment.

 

The sums became payable in full following service of a default notice by the original creditor on the date stated below and this being unsatisfied by the debtor.

 

Despite demand having been served upon the debtor, the debtor has failed to settle his/her outstanding liabilities pursuant to the Agreement as set out below:

 

Original Creditor xxxxxxxx

Account/Agreement Number xxxxxxxx

Agreement type Credit/Store Card

Default Date 2009

Balance Due 10K

 

Sum Due to Creditor

 

The Creditor is a debt purchaser which has purchased the rights and benefits in the debt set out within this demand by virtue of legal assignment pursuant to section 136 of The Property Law Act 1925

 

The creditor has made numerous written demands for repayment in respect of teh agreement, despite which the above sums remail unpaid,

 

Accordingly the creditor claims the sum of £xxxxx which is payable immediately.

 

Did you make a request for a copy of the CCA and has the creditor complied with such?

 

Answer. I have sent a cca request but only after receiving the SD

[TitleistproV1]

The agreement dates back to 2003

[TitleistproV1]

Hi Mould,

 

I have some very positive news!!

 

I have gone through all the previous correspondence regarding this account.

 

Back in 2010 I sent a CCA to Moorcroft Debt Recovery who were chasing this debt of behalf of the CC Company.

 

It was sent recorded delivery(have a copy letter and proof of postage).

 

Moorcroft replied saying they would request the relevant documentation from their client but nothing was sent so the account is in dispute.

 

I have found a default notice from the CC Company but this is a month earlier than Lowells state and does not contain the final balance figure.

 

your thoughts please,

 

many thnaks

[Andyorch]

Take a read of the sticky here : -

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?162131-Statutory-Demands-and-Service-By-Post

 

This will explain the process to set a side the SD.

 

Regards

 

Andy

[TitleistproV1]

Many thanks,

 

I have successfully set aside an SD in the past based on the account in dispute/ no default notice so could almost use the same template as before.

 

One question

 

Do i have to take the Set Aside to the Court address on the SD or can I take it to any court that deals with bankruptcy?

[Andyorch]

Any Court that deals...your SD has not been near a Court as yet.

[DonkeyB]

Failure to comply with the old CCA request remains a problem for them. It is irrelevant that the request was sent to someone else. An account cannot be enforced while the creditor remains in default of a valid s78 request.

 

See here

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?291945-Phoenix-Recoveries-vs-D-Kotecha-Court-of-Appeal

 

also referred to in this

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

[TitleistproV1]

It says on the SD that I should contact the person named on SD if I dispute the claim, does anyone have a draft letter I could use please.

[DonkeyB]

Not sure there’s a template for that. Sometimes you have to do the work yourself!

 

If you tell them you dispute it, you need to consider that you will be giving them a heads-up as to how to overcome your set-aside application. As long as the agreement exists somewhere, there’s a very good chance that they may be able to comply at some point. Even if you attend a set aside hearing, a judge may give them time to come up with the agreement – it is not unknown.

 

Is there any other dispute on this account, other than an outstanding s78 request? What would you do if they fulfilled the s78 request? You must look further ahead. Why did you stop payments?

 

Who was the original creditor? Knowing this will give a much better clue as to whether they are likely to hold the agreement, or whether their DNs were usually compliant at the time. Also tell us which month in 2010 the DN was supposedly issued.

[TitleistproV1]

In other words then, do I have to tell them. The last SD I had I didn't, and it did not go against me!!

[DonkeyB]

It's their lookout if they go chasing a bought account without having full access to its history. Choice is yours – personally, I'd apply for set aside ASAP. As long as you realise they play dirty.

[DonkeyB]

But you'll still have the issue of what to do if they eventually fulfil the CCA request. More of the info we have requested would help.

[The Mould]

You have located default notice - yes, what does it state?

 

You have made a Request pursuant to CCA 1974 (as amended) the same has not been complied with, is that correct?

 

Kind regards

 

The Mould