Lowell/Carter - claimform Blackhorse car finance 'debt'

[lordsnooty01]

Firstly, apologies for the long winded detail -

I posted this on another website but as I am seeking expertise

thought it be good to post on these knowledge boards too

 

I received a Claim Form this morning in relation to BlackHorse via Lowell / Bryan Carter.

 

Firstly, I have not at any point acknowledged the debt.

 

Secondly, I know this is probably not valid

- but the default date was issued by BlackHorse.

Lowell / Bryan Carter have 'lied'? on the claim form in relation to a default date they issued.

My belief is that this is not possible, right?

 

Thirdly, I have never engaged with the DCA nor Carters until I sent a letter in March in response to their claim

- my stance at that point was Section 5 of the limitation act (which in hindsight was a little presumptuous).

 

 

I effectively got a response from this stating they were investigating but believed the debt to not be statute barred.

I'm guessing they are right but surely point 2 above has some substance as it is a false statement??

 

Fourthly, I haven't requested (maybe I should) an original copy of the agreement - is this something I should pursue?

 

I guess more importantly - any prescribed actions that anyone can recommend I will undertake.

I intend to extend via online Moneyclaim to allow me 28 days.

 

IMO seems the debt is enforceable IF the dates of default issue is not valid

- if that is a no-go,

should - where should I be directing this?

 

I will repost what I posted on MSE for the background below:

 

"Black Horse agreement.

The car was handed back.

The amount Black Horse requested to settle after they auctioned the car was in dispute and never resolved.

Black Horse issued and then applied a default notice to my credit file dated XX/XX/2010.

The debt was then sold to Lowell.

 

The Blackhorse default notice disappeared from my credit file.

 

All quiet until 2013 - Lowell slap a marker on my credit file for the disputed amount with Blackhorse.

I do not enter into communication with them whatsoever.

It trundles along and nothing..........until recently.

 

I received a letter from Bryan Carters who are "acting" on behalf of Lowells.

Being a little presumptuous, I decided to engage and requested 'they prove it' and additionally I questioned validity from a statute barred standpoint.

 

I received a response which effectively stated they would enquire with 'their client aka Lowells'. The trail went dead (not really surprised).

 

This morning I have received a Claim Form with the claimant as Lowells with reference to Bryan Carter as documentation and payment reference below the claimant details.

 

My belief that the debt was/is statute barred is IMO incorrect...

..I don't dispute that 'an amount' was owed to Black Horse (original creditor)

but it was not the amount they claimed

and they failed to respond to my requests to rectify or discuss.

This is why this situation has arisen.

 

Questions:

 

1. Firstly I have just reviewed both the court form and my credit report

both of which state a default date of XX/XX/11 by Lowells.

Remember that Black Horse had already issued a default XX/XX/2010.

 

My belief is that a default date cannot be changed once a creditor has issued and even if the debt has been sold - am I right?

 

Does this simple fact give me an angle?

 

2. I have never received an original copy of my agreement as per request to Bryan Carter acting on behalf of Lowells

 

Is this not another angle for attack?

 

3. Putting aside the above points, what other angles are available to me?

 

I intend to defend fully but wanted to see if the DCA has tripped the whole proceedings up before we have even got started?"

 

Any advice appreciated.

[dx100uk]

can you fill this out please

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**(1-Viewing)-nbsp

[lordsnooty01]

Ok, here is the completed information. Thanks.

 

 

Name of the Claimant ? Lowell Portfolio, Ellington House LS10 1AB

Date of issue – 14 May 2015

What is the claim for –

 

The Claimants claim is for the sum of £3450 being monies due from the defendant to the claimant

under an agreement regulated by the consumer credit act 1974 between the defendant and Blackhorse

under account reference XXXXXX and assigned to the claimant on XX/09/2011,

notice of which has been given to the defendant.

 

The defendant failed to maintain contractual repayment under the terms of the agreement

and a default notice has been served which has not been complied with.

 

and the claimant claims 3450.00

 

The claimant also claims statutory interest pursuant to S.69 of the county act 1984 at a rate of 8% per annum

from the date of assignment of the agreement to date but limited to a maximum of 1000 amounting to 320.00

 

What is the value of the claim?

3450 + 320 + court fee + solicitor costs – approx. £4k

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? – Car Hire Purchase agreement with Blackhorse

 

When did you enter into the original agreement before or after 2007? Before 2007

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. Debt purchaser - Lowells

Were you aware the account had been assigned – did you receive a Notice of Assignment? 99% sure I did but cannot locate the notification

Did you receive a Default Notice from the original creditor? Yes

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? No

Why did you cease payments? 2005

What was the date of your last payment? Jan 2005

Was there a dispute with the original creditor that remains unresolved? Yes – car was handed back and the final figure to pay was in dispute.

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan?

No – car was handed back

– it’s the final figure they requested on the agreement as part of that termination (mutual)

that was in dispute which is ironically the amount Lowell / Carters are claiming.

 

 

In terms of next steps and the CCA and CPR 31.14 -

the first is clear but the CRA refers to Loans & Credit Cards / Current Accounts.

This is neither so do I still request, it being a Hire Purchase agreement?

Edited May 16, 2015 by lordsnooty01
Requested information

[dx100uk]

lets just resit things a mo.

 

you say last payment was jan 2005?

 

when did you hand the car back

and did you sign anything with the repo guy.

 

I can assume from what you are saying

that you got fleeced into doing a voluntary surrender

meaning you had to pay the remainder of the agreement minus the car auction price

 

whereby if you'd done VT[voluntary termination] , you would have only have paid uppto the 50% mark.

 

 

dx

[lordsnooty01]

Yes last payment was 2005.

 

 

Car was handed to British Car Auctions in Feb for auction.

 

 

Car was sold and yes you're right, they fleeced me on the price which is why it ended up in dispute.

 

I probably had some paperwork but being 10 years ago I think it's now been ditched......from memory it was merely them accepting the car.

 

I do remember ringing BCA to find out the price they achieved,

they weren't supposed to tell me but the lady dropped a clanger

- the figure was way different to what BH stated hence why the shortfall went into dispute.

 

VS as opposed VT

[dx100uk]

fleeced blind then.

 

ok if you've def not signed any letter to anyone

or paid anything to anyone since 14 may 2009

then its statute barred.

 

go up on mcol website

 

create an individual user registration

note the long number given.

 

then using those details^^^

log in

and select respond to a claim

 

hit Acknowledge the claim [AOS]

and using the details on the claimform that are required.

defend all

leave juris unticked

 

and exit MCOL.

 

if you are 100% confident on the statute barred as above

 

then go back to MCOL and enter the following defence

 

The following defence is all you need if it is SB

1 The Claimant's claim was issued on (insert date).

2 The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980.

.

If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

.

3 The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied .

.

entering the bits you need too

 

that should kill the claim dead

 

dx

[lordsnooty01]

Thanks DX.

 

So the default date is somehow irrelevant in this?

 

 

You are right, last payment was well before 2009 and I have not signed anything nor agreed to anything

nor entered into communication on this to anybody until March when I wrote to Carters.

 

 

The last payment I made on this agreement (original and with BH) was probably 2006. BH however did not default me until 2010.

 

Does the last payment make this statute barred - if its the default date then its not, right?

 

I should probably add

- no pre-action was carried out on this,

 

 

I got a final demand letter (3 months ago)

- I issued a go away its statute barred letter (in hindsight wrong) and then this claim form.

Surely they have to follow a set procedure, no?

Edited May 17, 2015 by lordsnooty01

[dx100uk]

carter will wrongly claim

its from the defaulted date.

 

 

have a read of a few carter threads here

and in

 

 

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

[lordsnooty01]

DX

 

A little more clarity and with the wonder of being an Equinox member since 2004, I have access to all previous credit file info

 

Last payment to BH was Apr 2007 so slightly later than I initially thought - my credit file confirms all pay,tents up to that stage. BH defaulted me (as per original post) Jan 2010.

 

Another interesting piece of information is that on the claim form (a form that the facts stated in the claim are true etc etc.) -

 

 

Lowell / Carters have stated they were assigned on the XX/09/2011

- how would that be possible as I have a credit report from 05/12/2011 which still has the BH details on my credit file.

 

 

How could it be assigned and therefore owned by Lowells?

 

Just so I am clear

- thanks for the link btw

- the date to which they have a right to claim is unto 6 years after the last payment

and NOT the default date (either the BH one or the fictitious Lowell one)??

[dx100uk]

what is more important is that you have record of last payment

and even if there was any wriggle room

it would certainly not be acceptable for the OC to default months or years later.

 

 

see post 61 here

http://www.consumeractiongroup.co.uk/forum/showthread.php?438488-Claim-Form-Carter-lowells-HBOS-Current-Account-debt&p=4723169

 

 

during the repo time

 

 

did you sign anything any time.

acking the debt.

[lordsnooty01]

Wow so knowledge is truly power against these chancers

 

I can get a statement from my bank for the last Direct Debit / SO I made in relation to the BH account - I will do that tomorrow.

 

Absolutely nothing signed - 100%.

 

Never entered into anything with Lowell either in terms of communications or otherwise. Carters letter sent in March 15 is the only communication ever..

[dx100uk]

sar to the bank don't waste money

no rush.

 

 

get that sb defence filed

the sooner the better.

 

 

dx

[lordsnooty01]

DX - apologies for the mass questioning..........

 

So the date of last payment is relevant with regards the SB and NOT the default date (either BH or Lowells false one) meaning last payment Apr 2007 = SB..........is this right?

 

I just want to be clear in my mind.

[dx100uk]

post 61

read the linked thread.............

 

 

dx

[lordsnooty01]

excellent

 

Ok apologies, my brain works in funny ways.

 

Ok so I will do what you prescribed and see what happens.

 

The whole default vs. last payment date is confusing the hell outta me but it is now much much clearer. Thx.

[lordsnooty01]

Thanks for all you're help

 

This is what I am about to submit online - could you please check. I have put notes below each one which I will obviously remove once you have proofed. Is this seriously all that is required??

 

1. The Claimant's claim was issued on XX May 2015.

 

Note: Issue date on the claim form - correct?

 

2. The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980, if, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

Note: Correct wording?

 

3. The Claimant's claim to be entitled to payment of £XXXX or any other sum, or relief of any kind is denied.

 

Note: I put the total amount in here from the claim - correct?

[dx100uk]

Thanks for all you're help

 

This is what I am about to submit online - could you please check. I have put notes below each one which I will obviously remove once you have proofed. Is this seriously all that is required??

 

1. The Claimant's claim was issued on XX May 2015.

 

Note: Issue date on the claim form - correct? yes

2. The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980,

if, which is denied, the claimant contends that the Defendant is in breach of the alleged contract,

in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

Note: Correct wording? yes

3. The Claimant's claim to be entitled to payment of £XXXX or any other sum, or relief of any kind is denied.

 

Note: I put the total amount in here from the claim - correct?

yes total

 

 

dx

[lordsnooty01]

Thanks DX.

 

So last questions after this submission..........

 

Once done, I just sit and wait right?

 

Once done

- it is up to Carter / Lowell to prove otherwise on the last payment date right? (I know 100% this was 2007 so just wondering)

I will request from the bank just in case they do go ahead and I can waft it in front of the judge

 

It still proceeds through the system or it gets stopped in its tracks - how does that occur,

if Carters / Lowells decide to proceed (based on me knowing the last payment date, seems pointless) what possible angle could they use?

Or is it simply (in you're opinion) they will just stop?

 

What i'm trying to avoid is any wriggle room on their part

- bearing in mind my defence is absolute,

 

 

i'm not suddenly just going to end up with a CCJ by {whoever} dismissing this stance??

[dx100uk]

Thanks DX.

 

So last questions after this submission..........

 

Once done, I just sit and wait right? correct they have 28days else it typically gets stayed.

Once done

- it is up to Carter / Lowell to prove otherwise on the last payment date right? (I know 100% this was 2007 so just wondering) - yep

I will request from the bank just in case they do go ahead and I can waft it in front of the judge poss but please use sar to them

It still proceeds through the system or it gets stopped in its tracks - how does that occur,- carters call

if Carters / Lowells decide to proceed (based on me knowing the last payment date, seems pointless)

what possible angle could they use? fictitious payment in late 2009 is usual

Or is it simply (in you're opinion) they will just stop? - prob gets stayed

What i'm trying to avoid is any wriggle room on their part

- bearing in mind my defence is absolute,

 

i'm not suddenly just going to end up with a CCJ by {whoever} dismissing this stance??

 

 

nope they'd have to prove it and you'll get the chance to disprove any evidence

 

 

its for the claimant to prove its not SB'd

not for you to prove it is.

 

 

dx

[lordsnooty01]

Hey DX,

 

Had a letter from the leeches - in short they have stated they intend to pursue (no surprise) and have suggested discussions to find a way forward (unsurprisingly via telephone) dressing up as mediation (that the court encourages).

 

Clearly I would never enter into discussions, especially verbal utilising the phone - do I just sit and wait?

 

Defence filed. Letter from court stating as such along with "leech may contact you direct to resolve informally".

 

Nothing has changed, they are operating outside of their boundaries in terms of enforcement and guessing they hope I just crumble (won't happen). The dates are 100% confirmed and the debt is Stat barred.

 

Any views?

 

Thanks.

Edited June 8, 2015 by lordsnooty01
additional information

[dx100uk]

that's it stand your ground

 

 

dx

[lordsnooty01]

Hey DX,

 

OK - I have had a response from the court in reference to my case. They are serving notice of proposed allocation to the small claims track.

 

They have asked me to complete a FORM N180 and send back to the court. It is effectively offering me mediation and also whether i agree it should be processed in the small claims court.

 

One the mediation aspect - as BC / Lowell have failed to produce any evidence of any sort in relation to my case, i.e. you have made a payment within the 6 year window (something they 100% cannot btw) - what is the point?

 

On it being moved to small claims - is this acceptable?

 

I should add that BC sent me a letter a few weeks ago requesting out of court settlement and to call them to discuss (as if). I just ignored that letter.

 

To confirm they HAVE TO prove the case / amount is not statute barred correct?

 

I am assuming that if they had anything to go on they would have provided evidence to the court / me by now or are they just chancing it hoping for me to buckle?

 

Thanks for your continued advise.

 

[dx100uk]

yes to both

 

 

return the form let it run.

 

 

when/if mediation ring you

you tell them the outstanding issues.

 

 

dx

[lordsnooty01]

Thanks.

 

I am loathed to put my phone number on the form as {I assume} they pass this to BC / Lowells or I suspect they may by way of a copy of the form - they have never had my phone number and I do not wish them to get it!

 

Thoughts?

[dx100uk]

nope mediation need it

 

 

not heard of it being passed on

 

 

dx