Brayan carter help!!

[42man]

You should get this set aside - as it is statute barred and report it to the OFT too (this is crucial)

 

Please have a read of these threads - http://www.consumeractiongroup.co.uk/forum/showthread.php?379550-Help-!!!!!-I-have-been-served-a-statutory-demand

 

And this one too - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

 

If you need any help then please shout....

[42man]

If it was me in your own position then I would email this.

 

Dear Sir / Madam

 

I am in receipt of your recent statutory demand which came into my hands on (date)

 

It is my intention to set this aside at my local court and claim my costs in the process. I am also fully aware of the Consumer Protection From Unfair Trading Regulations 2008, The Office Of Fair Tradings guidelines on debt collection and your own associations code of conduct. I am sure I do not have to remind you of any potential breaches of this.

 

I have already stated in a previous email that I will not be making any payment towards a debt that is statute barred. If you do not withdraw your demand or you do not correspond with me within 7 days, then I will take it that it is your intention to present a bankruptcy petition.

 

Please also take into account that when I appear in court, and on any subsequent 'unless' order then when the issue of costs arises I will be showing the judge ALL my correspondence including this letter.

 

I trust this makes my position completely clear.

 

Yours faithfully

[42man]

If that is when you last made payment then it is statute barred....

[42man]

It is 18 days from when you received it.....if you have a look at the threads I gave above it shows you what to do with a link to another defence (but you will find a lot more in here - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

 

As long as you are prepared to face a judge with your perfectly good and valid defence, have a read around these forums to get to know what is what (and you will feel more empowered I assure you) then you will be fine, you must also sort out your costs too (although you will have plenty of time to do this)

 

If you need any help or aren't sure what to write then do shout....

[42man]

Don't be bullied by these horrible companies....

 

I also have one favour to ask and that is you inform the Office Of Fair Trading too - but wait until we see what happens and if they respond to your ermail. Please keep us posted.

[42man]

Firstly send this email to this address Polly.Ashford@oft.gsi.gov.uk

 

Dear Polly.

 

I am writing to you to report 2 companies who are currently attempting to make me bankrupt.

 

On (date) I received a statutory demand from BWLegal on behalf of Lowells. I sent the email below on the (date)

 

Dear Sir / Madam

 

I am in receipt of your recent statutory demand which came into my hands on (date)

 

It is my intention to set this aside at my local court and claim my costs in the process. I am also fully aware of the Consumer Protection From Unfair Trading Regulations 2008, The Office Of Fair Tradings guidelines on debt collection and your own associations code of conduct. I am sure I do not have to remind you of any potential breaches of this.

 

I have already stated in a previous email that I will not be making any payment towards a debt that is statute barred. If you do not withdraw your demand or you do not correspond with me within 7 days, then I will take it that it is your intention to present a bankruptcy petition.

 

Please also take into account that when I appear in court, and on any subsequent 'unless' order then when the issue of costs arises I will be showing the judge ALL my correspondence including this letter.

 

I trust this makes my position completely clear.

 

Yours faithfully

 

----------------------

 

This is the reply email they have sent me.

 

(CUT AND PASTE HERE)

 

I am disgusted at the repsonse I received which is clearly nothing more than a generic letter and could easily mislead the less well informed that the statutory demand has been withdrawn. (which it clearly hasn't) It is also clear that this is a breach of The Consumer Protection From Unfair Trading regulations in line with your guidelines and their 'associations' code of conduct.

 

I am about to set this aside in court due to the alleged debt being statute barred. It seems both of these companies who work hand in hand, have little or no lines of communication, and if they cannot communicate properly with somebody who is facing the loss of everything, then they should hardly be allowed to operate in this way.

 

I do hope the Office Of Fair Trading take action against this company.

 

Yours faithfully

[42man]

Continue with your set aside....

[42man]

Have they included an email address ? If so then send them exactly what you sent to Lowells. And please forward the contents of the letter to the email address at the OFT above, once again all they have done is bullied you by means of a letter.....

[42man]

Here you go...

 

enquiries@bwlegal.co.uk

 

Dear Mr Leech

 

I am in receipt of your threatening letter dated (xxxxxx).

 

This email was sent to your client on (xxxxxx)

 

(cut and paste the email you sent to Lowells)

 

It seems plainly clear that you will not be withdrawing your statutory demand, It is now my intention to set this aside at my local county court. I will also send yours, Lowells misleading correspondence and my own correspondence to the Office Of Fair Trading as it seems you are quite clearly in multiple breach of CPUTR2008 and your own association's Code Of Conduct.

 

I will repeat for the second time, when the issue of costs arises I will be producing all documentation to the judge at the forthcoming hearing.

 

I trust this makes my position completely clear.

 

Yours sincerely

[42man]

Make sure you send all this correspondence to the OFT......and carry on with the set aside, a statute barred defence is a complete defence....

[42man]

They are attempting to steamroller you into submission, moreover they are asking you to ring them, what they will do then is frighten you into paying (please don't phone them unless you can record the call)....Lowells letter is completely misleading, stand your ground and please don't be bullied....I can assure you that when this over and you are looking at a costs order in your favour you will actually be really, really angry at the way you have been treated.....both myself and others have been in similar situations.

[42man]

Have a look in the links I gave above in post #8 and #15 and please don't submit the forms if you aren't sure what to write....please do shout if you need any help

[42man]

They won't get away with it if you don't fight fire with fire. In this case attack is the best form of defence, you have made it quite clear in your correspondence your position, they are NOT stepping down, once a judge sees your correspondence (and the OFT too I hope) and subsequent set aside, he/she will be pretty livid that the insolvency system is being abused this way....

[42man]

As I say....if you need help on what to write then please do ask...

[42man]

If you have proof of the last payment then even better !! have a good look around these threads and I can add some more to your 6.5 if you want me to...

[42man]

Even better that you sent a CCA request to Red (part of Lowells). So they have clearly issued a demand whilst in dispute....do you still have the letter you sent to Red and the recorded delivery slip ?

[42man]

The claimant issued a statutory demand on (date)

 

The defendant first took sight of the demand on (date)

 

The claiamnt claims £XXXXX

 

The defendant avers that the debt is barred by the Statute Of Limitations Act 1980

 

The claimants claim to any kind of relief whatsoever is denied.

 

The defendant also wishes to make it known that she has been in contact with the alleged creditor via email on 2 occasions. On both occasions the defendant has raised a clear dispute.

 

The claimants have been deliberate in their attempts to mislead the defendant stating that 'all action has been put on hold' (refer to Lowell letter) however the defendant received a further letter from a company acting on their behalf ( BWLegal) who have made their intentions completely clear and that is to ignore any correspondence and take the defendant to petition stage. At no point have the claimants stated that they will cease any legal action.

 

The defendant made it clear that in the event that she would take further action, then the defendants full costs would be claimed.

 

The claimants are clearly have committed an offence and are in multiple breach of CPUTR2008

 

Consumer Protection From Unfair Trading Regulations 2008

 

Offences relating to unfair commercial practices. 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).

 

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,

 

Interpretation.—(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 Credit Services Association (of whom Lowells are a current member)

 

Every member shall:

 

a - conduct its business in compliance with all relevant legislation,

regulations, regulatory guidance and requirements and this Code of

Practice

 

v - when an account is reasonably disputed or a complaint is received,

suspend collection activity and investigate and where applicable

refer the matter to their client

 

y - communicate with debtors fairly and transparently, and not

intentionally mislead them

 

aa - treat debtors fairly and not subject debtors (or their authorised

representatives) to aggressive practices, or conduct which is

deceitful, oppressive, unfair or improper, whether lawful or not

 

Every member shall:

a engage with clients and debtors to ensure disputes are investigated and

dealt with promptly

 

b cease recovery activity whilst investigating a valid dispute

 

c provide a response detailing the member’s conclusion to the dispute

 

The defendant gracefully requests that the Judge set aside the demand and pay the costs of the defendant either in the the standard or the indemmnity. - I refer to

 

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).

[42man]

You may also want to incorporate various pieces from here about deeds / notices of assignment, default notices, excessive charges, potentially missold PPI

 

DEFAULT NOTICE

 

The Need for a Default notice

 

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been provided
  

 

• 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 put the claimant to strict proof that any default notice sent to me was valid. I 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
  

 

 

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

The claimant has failed to provide any deeds or notices of assignment

 

The claimant has failed to provide any details of any potentially missold insurance that may have been added to the agreement.

 

The defendant avers that some debts are made up entirely of charges and / or potentially missold personal protection insurance.

 

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].

[42man]

You will also need to refer to the emails / letters sent which clearly Lowells (generic rubbish) and BWLegal's, it is clear the backside isn't talking to the elbow, or in this case a pair of backsides......

[42man]

You won't need to submit your costs as yet, these will need to be in court at least 24 hours before the hearing, I would normally advise people to take in the documents to court (ORIGINAL DEMAND - take some copies) 6.4 (set aside) and 6.5 (witness statement) + documents quoted in the witness statement. There is a thread here that will assist you with the costs - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

[42man]

Take the documents into court but please keep paper copies of everything. And yes you must stick to the deadlines. You should hear back from the court within 2 months. Once again I will say that when this is over, and you know more about this company and read more threads you will start getting really angry at the way you have been treated, it is all about empowerment, there are plenty of others in situations similar to yourself. Be strong about it and don't be bullied....

[42man]

You might like to take some confidence from this thread too - http://www.consumeractiongroup.co.uk/forum/showthread.php?378142-Lowell-Statutory-Demand-help!!-***-WON-COSTS-***/page3

[42man]

Send this email back.

 

Dear Sir

 

Many thanks for you email (dated).

 

For the record I will only communicate by writing. I do not think that this is an unreasonable request bearing in mind the circumstances.

 

Yours faithfully

[42man]

You should work out your costs and make sure they are IN the court for the 14th April - link here - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

[42man]

Can you check this ?