Brayan carter help!!

[janet37]

You do not need to pay anyone to do this for you....you can do it yourself.

 

The guys have advised that this is Statutory Barred and judging by the dates I agree.

 

That is an absolute defence...no ifs no buts....statutory barred is statutory barred.[/QUOT

Thanks for your encouraging words!! I will have a read of staying calm about debt!!

[janet37]

Hi could any one help with how to word witness statement for statute barr debt for setting aside SD thank you .

[janet37]

This is what I am thinking of putting

I am applying for this statutory demand to be set aside as i believe the debt is statute barred the last contact I have had with any creditor about this debt was on December 2006, this is when I disputed with creation finance about the amount and the legality of charges they were adding monthly to my account. They passed this debt to various debt collection agencies who I refused to acknowledge as I believe the charges were unlawful. I was issued with a statutory demand in 2007 by Lowells portfollio which they never followed up.The have now issued another statutory demand, I have emailed and written to them to advise them this debt is statute barred and after telling me that they would cease any collection action I have received la letter from BWLegal threatening me with Bankruptcy, they have also been advised that this debt is statute barred but have chosen to ignore me,

Do you think this is ok please feel free to edit!! thanks

[unclebulgaria67]

You don't need to provide this amount of information.

 

It only needs to be bullet point/short sentence facts.

 

I am applying for the statutory demand served on xx/xx/xxxx by BW Legal on behalf of Lowell to be set aside.

 

The statutory demand is in regard to a Creation Credit Card Account that has not be used since 26/12/2006, with the last payment made by me on 14/12/2006.

 

I aver that this debt is subject to section 5 of the Statute of Limitations Act 1980 from 26/1/2013, being 6 years from the date a payment was defaulted on with the original creditor.

 

It needs to be something like that. Short and sweet.

Edited February 9, 2013 by unclebulgaria67

[janet37]

You don't need to provide this amount of information.

 

It only needs to be bullet point/short sentence facts.

 

I am applying for the statutory demand served on xx/xx/xxxx by BW Legal on behalf of Lowells to be set aside.

 

The statutory demand is in regard to a Creation Credit Card Account that has not be used since 26/12/2006, with the last payment made by me on 14/12/2006.

 

I aver that this debt is subject to section 5 of the Statute of Limitations Act 1980 from 26/1/2013, being 6 years from the date a payment was defaulted on with the original creditor.

 

It needs to be something like that. Short and sweet.

Thank you would you leave it at that and not mention the rest of it.

[unclebulgaria67]

It just needs to be simple. If Lowell can't prove that the account is not statute barred, then they are stuffed.

[janet37]

Thanks for the advice..

 

Do i need to enclose the copy of the statement that I have or will they ask for that if they need it?

 

I am so worried about this,

 

would you carry on with the set aside,

 

I have had no response from lowell or BW legal to any emails or letters informing them this is statute barred.

 

I wonder if this is how they carrry on all the time.

Edited February 9, 2013 by janet37

[unclebulgaria67]

No they don't need the credit card statement, but you should keep it for any hearing, if one ever takes place.

 

As far as I understand it, you complete two forms 6.4 & 6.5, for which you will need three copies. Also take a couple of photocopies of the statutory demand. Take this into the nearest county court that deals with insolvency and they will do the necessary.

 

You should do the set aside, as you never know, BW Legal/Lowells may just continue and the next thing you have to defend is a bankruptcy petition. They have made mistakes before, which has caused a load of hassle. The other thing is that BW Legal/Lowells may argue about the statute barred date. You therefore need to sort this out at the statutory demand point, otherwise you are taking a risk.

[unclebulgaria67]

The county courts are not open until Monday anyway, so relax and wait for any other advice from other CAG members between now and Monday morning. Many of the people who are much more knowledgeable on court processes tend to take the weekend off from CAG, so they may not see this thread again for a short while.

[janet37]

Thanks it is so stressful!! I do expect them to argue.. but I am sure I have had no contact with any one about this debt. Them ignoring emails and letters that I have sent in the last week just adds to it all, not sure if it is a good or a bad thing, but like you say best to deal with it now and see which way it goes, do i need to go to the court or can i post them ?

[unclebulgaria67]

I think the rules have changed and you can post them, but I would prefer to take them in and get some acknowledgement. The courts service seems quite qood at losing post and I don't think I would take the chance.

[citizenB]

You could add this is the 2nd time that Lowells have issued a Stat demand - the first one in 2007 was not followed through.

[Ford]

good point, also disputed as such before?

[janet37]

I have just found a letter from RED dated 28/03/2008 it says the time limit set by the court for responding to the SD has now expired then in capital letters it has this is your final demand to prevent a bankruptcy petition being presented. this must be the the SD that they issued before. I don't know why they never followed it up.

[janet37]

. That I am applying for the statutory demand served on 30th January 2013 by BW Legal on behalf of Lowell to be set aside.

 

The statutory demand is in regard to a Creation Credit Card Account that has not be used since 26/12/2006, with the last payment made by me on 14/12/2006.

 

I aver that this debt is subject to section 5 of the statute of limitation Act 1980 from 26/1/2013, being 6 years from the date a payment was defaulted on with the original creditor. This debt is Statute Barred.

 

This is also the second time that they have issued a Statutory demand the first being in 2007, but not followed through.

.

opinions please!

[Ford]

I have just found a letter from RED dated 28/03/2008 it says the time limit set by the court for responding to the SD has now expired then in capital letters it has this is your final demand to prevent a bankruptcy petition being presented. this must be the the SD that they issued before. I don't know why they never followed it up.

 

ordinarily, a petition should follow within 4 months of an sd. and outside of that any petition would normally require explanation (see the petition forms) for the court to decide on. hence prob why they now issued another one, and not relying on the previous one. poss abuse of process?

 

ps. bankruptcy is re an inability to pay debts. prob is that those such as lowells are seemingly using it as a collection tool, despite what the judge said against them recently in that other thread for eg. 'the judge said to them 'i see your client lowells in the bankruptcy courts quite often, you cant just issue stat demands as you see fit, agreements need to be in place before you do this' http://www.consumeractiongroup.co.uk...-Lowells/page2

Edited February 10, 2013 by Ford

[DonkeyB]

You could add this is the 2nd time that Lowells have issued a Stat demand - the first one in 2007 was not followed through.

 

I would personally NOT include this in the set aside app. It confuses things. Why admit to receiving something that is now irrelevant?

 

But it IS relevant to a complaint to the OFT, as I said earlier.

[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......

[janet37]

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......

thanks for all your help , Today I have had an e_mail from M Leech saying that he can not communicate by email unless I contact his office due the data protection act. I have no intention of calling him, I have written and e-mailed him he seems to have chosen to ignore letter. I think I should carry on with the set aside.

[citizenB]

What utter rubbish - if he were dealing with another solicitor he would deal by email !!

[DonkeyB]

Who is the named person on the SD for you to communicate with?

 

If he or she is refusing to communicate – despite being confident enough of your ID to issue an SD – that also adds to your set aside. If the named person is not available, they have a problem.

[janet37]

Who is the named person on the SD for you to communicate with?

 

If he or she is refusing to communicate – despite being confident enough of your ID to issue an SD – that also adds to your set aside. If the named person is not available, they have a problem.

Guess what !!! it's Matthew Leech!

[DonkeyB]

Even better. He MUST be available for contact. It may be worth you making a call (record if possible). If you get through, simply state you are calling to let him know you will be seeking to set aside the demand. Say absolutely nothing else.

 

If he is unavailable, try up to three times, and log/record your attempts. After that, this failure alone would put their SD in jeopardy.