SD from BW-Disputed-SB Debt-SET A SIDE-Now Claimform

[PlumeDove]

Hi This is my first post so thank you in advance for any advice

 

Briefly, last week I received a Statuary Demand from BWlegal and I have a genuine dispute with the creditor (errors on the credit agreement) and I also believe the debt is now stature barred. The loan was taken out in 2006 and the dispute I had with the creditor was upheld by the Financial Ombudsman.

 

I want to apply for set aside and understand I have to fill in forms 6.4 and 6.5 but I have no legal knowledge and cannot afford a solicitor, could anyone help me with the wording for the Witness Statement? The demand was handed to me on Thursday 11th June.

 

Thank you in advance for any help!

[fkofilee]

Lowell are still up to their tricks i see. Tell us more about this debt.

[Andyorch]

Thread moved to Financial Legal Issues.

 

Regards

 

Andy

[unclebulgaria67]

Hi This is my first post so thank you in advance for any advice

 

Briefly, last week I received a Statuary Demand from BWlegal and I have a genuine dispute with the creditor (errors on the credit agreement) and I also believe the debt is now stature barred. The loan was taken out in 2006 and the dispute I had with the creditor was upheld by the Financial Ombudsman.

 

I want to apply for set aside and understand I have to fill in forms 6.4 and 6.5 but I have no legal knowledge and cannot afford a solicitor, could anyone help me with the wording for the Witness Statement? The demand was handed to me on Thursday 11th June.

 

Thank you in advance for any help!

 

You can of course look to get it set aside. E.g debt subject to limitations act 1980 and no longer enforceable. Also debt was subject to dispute upheld by the FOS and is not due.

 

My instinct is to test whether this is a mistake by BW Legal. There is a requirement by the FCA that they use the CCJ route first and not go straight for bankruptcy.

 

I would suggest that you phone BWLegal and follow up in writing. Tell them that the matter is stature barred and was subject to an upheld decision by the FOS. Ask them why they have issued the SD and suggest they withdraw it , confirming in writing that they gave done so.

 

If contacting them does not work, then do the set aside, but you will need to provide more details of the debt and what the SD says. Why is it statute barred ? What was the dispute upheld by the FOS ?

[unclebulgaria67]

If you ask for the set aside there may be a hearing and it it was a mistake it would be wasting your time. Hence seeing if you can resolve first.

[Andyorch]

Have a read of the following.....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?407519-Statutory-Demands-and-Lowells.

 

and

 

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

 

Also get a CCA request (section 78 ) off today.(if not already)

 

Regards

 

Andy

[PlumeDove]

Thanks everyone for your replies!

 

Details of the debt, sorry this is a big long winded...

 

In 2006 I took out a HP agreement for a car through Sainsbury’s Bank (Freeway / Bank of Scotland Group) total loan £6,808.00. I was advised to add PPI to cover payments in the event of unemployment, so I agreed.

I then lost my job in 2007 so contacted the creditor to claim on the policy but was told it had not been set up! They had in fact set up (and been taking money) for something called ‘Maintenance Service Charge’ instead. I had not heard of this before and did not agree to have it.

 

I double checked my original paper credit agreement which clearly shows the PPI I had signed for. My agreement also shows the level of the policy along with the amounts to be deducted each month, £8.46. It also shows a box for something called ‘Monthly Maintenance Charge’ which has £0 in it.

 

The creditor said even if they had set up the PPI they still would not have covered me for my claim of unemployment anyway, so basically I had not lost out!! I was not happy about being misled about the PPI cover and discovering my credit agreement had this error so I requested they put a note on my file ‘Debt in Dispute’ and complained to the Financial Ombudsman.

 

Finally the matter was resolved in 2008 and I received a letter from the FOS with his findings:

-The business incorrectly set up the wrong insurance cover Instead of setting up a ‘Credit Care Bronze’ policy it set up a ‘Maintenance Cover’ policy instead. This was discovered when you became unemployed and wished to make a claim on the policy.

-When taking the HP agreement and insurance cover you were advised that the CCB policy included unemployment cover. The business had since advised this particular policy does not include unemployment cover.

-The business issued a Default notice against you in 2008 because of non-payment of the HP agreement. You say payments were not being made because of your ongoing dispute.

 

To make things right he went on to say;

-The creditor should refund the ‘Maintenance Cover’ payments

-They should make 12 monthly payments of £146.20 as a gesture of goodwill = total payment of £1,754.40

-Re-instate the PPI if I agreed

-They should remove the default

He went on to say he felt this offer was fair and brought the complaint to a close.

 

I presumed all was resolved so waited to hear back from the creditor with the new credit agreement / corrected paperwork, refund of the charges and updated payments and once all that was sorted the final amount owed, but nothing came. I honestly don’t remember why I didn’t chase this up but I was bereaved at the time so it was a difficult period.

 

Since the ombudsman’s findings the creditor has never contacted me with a corrected credit agreement or demand any payments. I have not been defaulted since the one revoked in 2008 and I have never seen any adverse information on my credit file. Nor have I been contacted by any DCA’s until recently by BWlegal.

 

Having checked through paperwork the last letter I can find from the creditor is a 'letter of arrears' dated 2010 and the amount shown is £7,865.29. (no demands for payments )

 

As it has been 8 or more years since I last spoke to the creditor and 9yrs since the last payment was made I presume the debt is now stature barred so was shocked when BWlegal started chasing me in 2014 requesting full payment. I ignored their letters as I really wasn’t sure what to do.

 

Then last week (11th) I had a doorstep caller who said they were working on behalf of BWlegal and I was served with a Statutory Demand Notice for £7,882.92. He said I have 18 days to submit a set aside otherwise I will be made bankrupt! He advised me to get a solicitor. I cannot afford a solicitor and not sure where else to turn for advice then I found CAG.

 

I have the original credit agreement, copy of the agreement from creditor, letters dealing with the complaint from the FOS, letter from the creditor admitting their errors.

 

Thanks again for your help!

[unclebulgaria67]

Make a formal complaint to BW Legal and threaten to take the complaint to the SRA. Also the debt owner would in breach of FCA rules that require them to exhaust all other debt collection methods e.g CCJ , before threatening bankruptcy.

 

Tell them it is not acceptable to threaten bankruptcy when the debt is subject to the limitations act 1980. If they don't withdraw the SD you will apply to set it aside and apply for costs.

 

Phone them and follow up with a recorded delivery letter or email.

 

Nb. Did the amount the FOS awarded get paid to the loan account ? If this happened , this may be why they think it is not stature barred. If it was not paid on until say July 2009, this may be why they are threatening the bankruptcy. If this is the case, you will need to CCA and SAR the original creditors. There will be a more complicated argument.

[PlumeDove]

Thank you for your responses that is really helpful, I will phone and email BW Legal tomorrow. I only have till next Friday to submit the set aside so hopefully they will get back to me before then to withdraw. Not sure what the SRA is but will look that up.

 

They did not carry out any of the FOS recommendations, I didn't get a refund of the service maintenance charges, nor did the goodwill payment get paid into the loan account, and they still continued charging for the maintenance service I didn't sign for.

 

Appreciate the time everyone took to answer will let you know how it goes

[unclebulgaria67]

Thank you for your responses that is really helpful, I will phone and email BW Legal tomorrow. I only have till next Friday to submit the set aside so hopefully they will get back to me before then to withdraw. Not sure what the SRA is but will look that up.

 

They did not carry out any of the FOS recommendations, I didn't get a refund of the service maintenance charges, nor did the goodwill payment get paid into the loan account, and they still continued charging for the maintenance service I didn't sign for.

 

Appreciate the time everyone took to answer will let you know how it goes

 

Solicitors Regulatory Authority ! I believe BWLegal have 2 registered Solicitors the last time I checked. They are responsible for ensuring that BWLegal operate within the standards expected. Threatening bankruptcy on a stature barred debt and not adhering to FCA rules on debt collection is not operating within the standards expected. The FCA require that creditors explore other debt collection methods, before using bankruptcy. BWLegal are responsible with the creditors for ensuring that FCA rules are adhered to.

 

You should also point out to them that the creditors did not respect the decision of the FOS and did not implement the decision that was upheld against them.

 

Suggest to them that the set aside will be successful given the facts and that you will apply for costs. If they want to avoid this, then they should withdraw the SD in writing.

[unclebulgaria67]

This is the FCA rule link

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?420687-New-FCA-rules-1-4-14

[PlumeDove]

Thank you so much! I have had a read through the links and along with your advice found if very helpful to write the email sent this morning and a letter will be out in the post this afternoon. (Recorded/Signed)

 

really appreciate you taking time to respond!

[unclebulgaria67]

Another thing you could do is send a complaint to whoever BWLegal are acting for pointing out the upheld FOS judgement against the original creditor has yet to be honoured and they should not be instructing BWLegal to threaten bankruptcy against FCA rules, when the debt is statute barred anyway. Advise that you will ask the FOS to review a complaint, unless they offer apologies and appropriate compensation.

[PlumeDove]

Ah yes, thank you that's an interesting point, I did wonder how the original creditor could sell the debt under the circumstances.

 

Appreciate your ongoing help!

[unclebulgaria67]

Ah yes, thank you that's an interesting point, I did wonder how the original creditor could sell the debt under the circumstances.

 

Appreciate your ongoing help!

 

You should expect them to come back claiming payments showing making it not stature barred. If this is the case you should ask for proof of the payments e.g amount, method of payment, bank details or debit/credit card used.

 

If it gets anywhere near the deadline for the set aside without response, you will have stick the set aside in to your nearest court that handles insolvency. Firstly matter subject to limitations act and secondly the original creditor not honouring the upheld judgement against them by the FOS.

[PlumeDove]

Thank you for the heads up, I think I will go pick up the 6.4 and 6.5 from my local court just in case as I need to go over them and hopefully someone can help me to fill them in :S

Would you know if I need to enclose original / photocopies of documents with the forms (such as the credit agreement) or just take those with me on the day of the hearing? The 18 days are up on the 25th June.

Thanks again!

[unclebulgaria67]

Thank you for the heads up, I think I will go pick up the 6.4 and 6.5 from my local court just in case as I need to go over them and hopefully someone can help me to fill them in :S

Would you know if I need to enclose original / photocopies of documents with the forms (such as the credit agreement) or just take those with me on the day of the hearing? The 18 days are up on the 25th June.

Thanks again!

 

You can download those forms online, complete them and print them off.

 

You just need to state reasons for set aside. You would only need copies of documents, if there is a hearing.

[PlumeDove]

As mentioned above I emailed the contact provided on the Statutory Demand letter today and have received a reply…

 

‘I am currently out of the office returning on 25.06.15

 

I will not have access to my e-mails.

 

Should your query be urgent, I would ask that you contact my colleague (name) (Email address) or (phone number)

 

BW Legal will not be put on notice of any documents received to this e-mail address in my absence.

 

This message has been sent automatically.’

 

I’ve re-sent the email to the address he provided but does anyone know of a specific email address I should use?

 

Thanks in advance

[PlumeDove]

You can download those forms online, complete them and print them off.

 

You just need to state reasons for set aside. You would only need copies of documents, if there is a hearing.

 

Thank you very much, just done that and looking over!

[unclebulgaria67]

As mentioned above I emailed the contact provided on the Statutory Demand letter today and have received a reply…

 

‘I am currently out of the office returning on 25.06.15

 

I will not have access to my e-mails.

 

Should your query be urgent, I would ask that you contact my colleague (name) (Email address) or (phone number)

 

BW Legal will not be put on notice of any documents received to this e-mail address in my absence.

 

This message has been sent automatically.’

 

I’ve re-sent the email to the address he provided but does anyone know of a specific email address I should use?

 

Thanks in advance

 

You could phone them for their email address for anything that is more urgent.

[Andyorch]

Thank you for the heads up, I think I will go pick up the 6.4 and 6.5 from my local court just in case as I need to go over them and hopefully someone can help me to fill them in :S

Would you know if I need to enclose original / photocopies of documents with the forms (such as the credit agreement) or just take those with me on the day of the hearing? The 18 days are up on the 25th June.

Thanks again!

 

The forms are already in the CAG Legal Library to download...with guidance on how to complete.

 

Andy

[PlumeDove]

The forms are already in the CAG Legal Library to download...with guidance on how to complete.

 

Andy

 

Thanks Andy, appreciate your reply! Can you let me know if I put costs in at the same time as the set aside paperwork?

[Andyorch]

Yes ask for wasted costs within your affidavit

[PlumeDove]

Thank you, appreciate your reply!

[PlumeDove]

I have heard back from BW Legal who say the alleged debt is not stature barred because;

 

-A balloon payment became due 2010 therefore the debt is not stature barred.

-A default was issued in 2010. (I did not receive any default paperwork in 2010 and I have just checked my credit file today and there are no default notices showing)

 

Not sure how to move forward, can anyone offer any advice please?