Help!! - lowells instructing bw legal on lloyds current account

[Pinkcat]

Hello guys - I am new to this site but have visited many times and kindly ask that someone would kindly help me in this awful situation.
I will try and keep to the facts and be as clear as possible - I am in the middle of a house move and am already stressed to the hilt without this unnecessary setback which has almost sent me into meltdown.
FACTS - I opened a current account with Lloyds in March 1995 and given a £1000 overdraft limit. I remember the overdraft going up to £990 of which I then stopped using the account. This was around 2005 and at that time I was going through a break up so my head was in the shed so to speak. My current account then had fees and charges applied to it in the masses and before long it had spiralled up to £2000. I remember at around 2006 (it was just before the ruling that the courts were going to look into unfair bank charges the first time) - I actually put in a Moneyclaim application to take Lloyds to court over this but although it was lodged I had feedback stating that these cases were on hold until the courts had made their decision. In essence I was disputing the total amount due. Incidently the total sum now owed is £2862.
The matter has been passed to numerous debt collectors and I stupidly thought that if I sat tight I would get to the statute time barred stage. I have checked my credit file and the default is listed as 2/7/10 by Lowells although I strongly believe this to be incorrect. The strange thing is that There are absolutely no entries about the conduct of my account before this point - only a few blank boxes. I believe there is a good chance that it may already be statute barred but how do I clarify this. I remember phoning Lloyds a number of years ago about this and they said there was no record of that account on their systems (maybe because they had closed the account and sole it on but surely they should still hold some records.) I need to find the actual default date - and also does the time barred date run from the date of the first missed payment or the actual recorded default date?
I am in a severe state of panic now because although I have had numerous letters from DCAs I have now had one from Lowells which says that after reviewing my credit file they think I am now in a position to start paying this off. My credit was quite bad around the 2006/7 time and I had several defaults (due to relationship breakdown and being left with 2 kids) but I have worked damn hard to improve my credit and Lowell are now instructing BW Legal with a view to enforcement/stat demand/CCJ. I have been given until Monday to contact them. What do I do - do I phone Lloyds about the default date to start the ball rolling. I would very much appreciate any help as I am truely at my wits end.

[FlamingParrot]

Re: Help!! - lowells instructing bw legal on lloyds current account

Hi and welcome to LB!

FACTS - I opened a current account with Lloyds in March 1995 and given a £1000 overdraft limit. I remember the overdraft going up to £990 of which I then stopped using the account. This was around 2005 and at that time I was going through a break up so my head was in the shed so to speak. My current account then had fees and charges applied to it in the masses and before long it had spiralled up to £2000. I remember at around 2006 (it was just before the ruling that the courts were going to look into unfair bank charges the first time) - I actually put in a Moneyclaim application to take Lloyds to court over this but although it was lodged I had feedback stating that these cases were on hold until the courts had made their decision. In essence I was disputing the total amount due. Incidently the total sum now owed is £2862.
The matter has been passed to numerous debt collectors and I stupidly thought that if I sat tight I would get to the statute time barred stage. I have checked my credit file and the default is listed as 2/7/10 by Lowells although I strongly believe this to be incorrect.

If no payments were made into this current account after 2006, then this is most definitely statute barred. With overdrafts, the 6 years start from when the bank recalls the O/D, if you went through all that back in 2006, I can only assume the bank had already recalled it, so it's been over 7 years since the cause of action, thus statute barred. :thumb:

The default date has no relevance on SBd status whatsoever, the Limitation Act 1980 refers to 6 years from the CAUSE OF ACTION (in this case, recalling the O/D), not from the default date, so I'd just fire up the SBd letter.

With regards to the default, it is most definitely incorrectly recorded. Perhaps 2/7/10 was when Lowell bought the account, but the default date should refer to when you stopped paying into the account, i.e. 2006. That default should have dropped off sometime in 2012.

[FlamingParrot]

Re: Help!! - lowells instructing bw legal on lloyds current account

I have been given until Monday to contact them. What do I do - do I phone Lloyds about the default date to start the ball rolling. I would very much appreciate any help as I am truely at my wits end.

No, don't phone anyone, keep everything in writing. As per my post above, the default date is totally irrelevant and Lloyds probably wouldn't be able to provide it, as most banks claim not to have records going back further than six years.

Send Lowell the following letter:

Dear Sirs

Re: Statute Barred Account xyz

You have contacted me regarding the account with the above reference number, which you claim is owed by myself. I would point out that under the Limitation Act 1980 Section 5 "an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued".

I would also point out that the OFT say under their Debt Collection Guidance on statute barred debt that "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period". The last acknowledgement to this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any action against me to recover the alleged amount claimed.

The OFT Debt Collection Guidance states further that "continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statue barred could amount to harassment". I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.
I look forward to your reply.

Yours faithfully,

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

Ok - I will send that off today and wait with bated breath. What happens if I do not get a reply and and lowells just go ahead and pass it on to BW - I am worried that bailiffs may arrive unnannounced and this is something I just couldnt deal with. Do Lowells have a time limit to reply. I will send my letter recorded delivery so am I right in saying that if the account is in dispute it cannot be enforced?

[FlamingParrot]

Re: Help!! - lowells instructing bw legal on lloyds current account

With regards to the default, you will need to get it removed. In most cases, you'd be advised to contact the account owner first (i.e. Lowell), however, knowing how they operate, I'd be inclined to contact the CRAs directly, explaining the situation, i.e. that you defaulted in 2006, yet the default shows as being recorded in 2010. You may want to take a look at the guidance notes for filing defaults here: http://ico.org.uk/~/media/documents/...%20%20doc.ashx

In particular, this section about overdrafts:

15 Current accounts

Breakdowns on current accounts will happen in relation to overdraft facilities. We recognise this is a complex area because of the range of factors affecting the relationship with the customer, and the indicators in paragraph 10 above are of limited relevance.

On these accounts the following are indications of a breakdown.

The customer has had an unauthorised overdraft for at least three months and the lender has demanded they put their account in order but the customer has failed to do so.

The lender has closed the account (or would have done so if extenuating social considerations had not dictated otherwise) because the customer has failed to use it according to the original terms and conditions. (This includes situations where an account has been opened for fraudulent purposes).

As a result of the way in which the account has been conducted the lender has asked for the return of the cheque guarantee card.

The account has a debit balance (within or outside overdraft limits) but there have not been any or enough credits to service the debt for at least three months.

See below with regards to the default date.

The date of default

31 The date of default recorded on the file should be the date on which a decision to file a default becomes effective according to the criteria discussed in paragraphs 9 to 16. If a notice of intention to file a default is served (see paragraphs 32 to 37), the default date should be the date the notice becomes effective. When a default is filed after a genuine andagreed variation in payment schedule has broken down, it should record the date of that breakdown subject to the conditions described in paragraph 21.

Finally, see below, with regards to debts that have been assigned:

The ‘sale’ or assignment of debts on defaulted accounts

52 When the rights to a debt are sold to a third party, the lender has to make sure the records with the credit reference agency are accurate, up to date and adequate. If they want information about the debts to continue on the credit reference file they will need to come to an agreement with the purchaser about who is to be responsible for this.

53 If the purchaser agrees to take control of the record, the customer should be informed that the debt has been sold or assigned and to whom. The credit reference agency file should be changed to show the name of the purchaser and that the rights to the debt have been sold or assigned.

The purchaser should then make sure the record is kept up to date including changes to the amount still owed. The purchase should not affect how long the record is kept. It should be removed six years after the default.

This should give you enough info to request the default to be removed from your credit files.

To recap, the above refers to the ICO's (Information Commissioner's) guidance with regards to recording defaults, it has nothing whatsoever to do with the Limitation Act which states when a debt becomes Statute Barred. It's just so you don't have to wait another 2 1/2 years for that default to drop off. :grin:

[debttydo]

Re: Help!! - lowells instructing bw legal on lloyds current account

Don't panic nobody will come to your door.
It would have to go court first
They're just trying to scare you into paying.
They are the vilest bunch of shysters in the business
Ignore.

[FlamingParrot]

Re: Help!! - lowells instructing bw legal on lloyds current account

Ok - I will send that off today and wait with bated breath. What happens if I do not get a reply and and lowells just go ahead and pass it on to BW

Nothing happens, BW will write to you and you will send them the same letter.

I am worried that bailiffs may arrive unnannounced and this is something I just couldnt deal with.

Bailiffs won't arrive at all! Bailiffs can't be sent unless they had already obtained judgment against you (a CCJ). Even then, they would have to apply to the court for a warrant of execution, and that only happens when the debtors does not keep to the terms of the CCJ. When you see people dealing with bailiffs on this and other sites, you'll find most of them are for unpaid council tax or court fines, not for consumer debts like yours. :nono:

Do Lowells have a time limit to reply. I will send my letter recorded delivery so am I right in saying that if the account is in dispute it cannot be enforced?

They don't have to reply as such, just leave you alone, as per the OFT guidance, once a debtor has informed the creditor that the debt is time barred and thus will not be making payments, they should not keep pursuing the debt. See this for reference: http://www.oft.gov.uk/shared_oft/bus.../OFT664Rev.pdf

b where businesses seek to recover statute barred debt in England, Wales or Northern Ireland, we consider that the following may be unfair or improper practices:

(i) pursuing the debt under circumstances in which the debtor has heard nothing from a creditor during the relevant limitation period. If a creditor has been in regular contact with a debtor before the debt is statute barred, then we do not consider it unfair to continue to attempt to recover the debt

(ii) misleading debtors as to their rights and obligations For example, stating or implying that debtors may be the subject of court action for the sum of the statute barred debt when it is known, or reasonably ought to be known, that the relevant limitation period has expired. The person seeking to recover the debt would effectively be relying on the debtor not knowing the relevant legal provisions.

(iii) continuing to press a debtor for payment after he has stated that he will not be paying a debt because it is statute barred

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

I will contact the CRAs direct and see what happens. The only thing is that I do not have any paperwork relating to this account - as far as i was concerned the account was closed and I (naively) threw everything - will the CRAs need any written proof from Lloyds?

[FlamingParrot]

Re: Help!! - lowells instructing bw legal on lloyds current account

Obviously any proof you may have would help, however, as a first step, I'd start by contacting them and quoting the paragraphs highlighted above and see what they say. :thumb:

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

Ok, I have sent the SB letter recorded delivery and will wait to see what happens. In the meantime I shall contact Equifax to see if the default date can be amended. Once again many thanks for your help.

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

Ok, I have sent the SB letter recorded delivery and will wait to see what happens. In the meantime I shall contact Equifax to see if the default date can be amended. Once again many thanks for your help.

Just a quick update - I sent the SB letter recorded delivery to Lowells on the 19th Jan and surprise surprise I had a letter back from BW Legal on the 24th saying they wanted full payment or proceedings would comence. I sent the a copy of the SB letter I sent to Lowells and asked for their confirmation that no further action would be taken. I have also sent this by recorded delivery so I await to see what their response is. I am a little concerned because having read someone else's thread it seems that they may ignore my letter and just turn up on my doorstep with a stat demand. (They wouldnt catch me in though as I have moved house a couple of days ago and have had my mail redirected - would they be able to claim that the stat demand had been served even though it was clear no one was living at the address? i dont want to have a CCJ or anything worse). If they leave any correspondence at the address in person I wouldnt know as the address they have for me is vacant.

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

I have telephoned Lloyds TSB today to enquire about transaction dates as I wanted to be fully armed when dealing with any response from BW Legal. I asked when the last payment of money was put into the account in question and the lady told me it was for £45 on 1/9/2009. This is bad news for me as this places the account within the 6 year timescale and open to action for BW. I asked where the transfer had come from and whether it had come from my other Lloyds account but she could not tell me as she said the ledger didnt say. It just said funds transfer £45. Could this be wrong as I really have no recollection of this and I would have thought I would have remembered this date as I was just about to give birth around that time! If it is correct that i did in fact transfer this money what effect does my SB letter to BW have? Will they have all the records etc? Should I now send a formal SAR to Lloyds and will this provide further info as I am seriously doubting that I did transfer any money into the account. or should I just wait to see what comes back from BW? (nothing to date has come back from them - how long would they normally take to respond?

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

As a thought, Lloyds said that it was a funds transfer of £45 - I have just checked my other lloyds statements and the statement does actually say there was a transfer of £45 on 1/9/2009 - I dont think I would have done this myself but i do remember that lloyds have the right to automatically make a transfer of funds from one account to another by themselves and this may be the case here. How can I find out if this was made by lloyds and not me? Would would be the position if this was the case? Also, I have moved house last week but have not updated my address with anyone as yet but have a redirection on my mail so i will be aware of any developments. If I dont here anything from BW shall i just sit tight?

[FlamingParrot]

Re: Help!! - lowells instructing bw legal on lloyds current account

Just a quick update - I sent the SB letter recorded delivery to Lowells on the 19th Jan and surprise surprise I had a letter back from BW Legal on the 24th saying they wanted full payment or proceedings would comence. I sent the a copy of the SB letter I sent to Lowells and asked for their confirmation that no further action would be taken. I have also sent this by recorded delivery so I await to see what their response is. I am a little concerned because having read someone else's thread it seems that they may ignore my letter and just turn up on my doorstep with a stat demand.

If the debt is SBd, then you have nothing to worry about. Celestine has managed to set aside over 65 SDs, :yo: :yo: :yo: most of them from Lowell, even when the debts were not SBd. :thumb:

(They wouldnt catch me in though as I have moved house a couple of days ago and have had my mail redirected - would they be able to claim that the stat demand had been served even though it was clear no one was living at the address? i dont want to have a CCJ or anything worse). If they leave any correspondence at the address in person I wouldnt know as the address they have for me is vacant.

Statutory demands are meant to be served in person by a process server. Sometimes they are just sent by post but, from what I have seen, Lowell always use a process server.
See the following with regards to service of SDs:http://www.justice.gov.uk/courts/pro...cy_pd#IDAFKBIC

(13.3.1)

The creditor is under an obligation to do all that is reasonable to bring the statutory demand to the debtor's attention and, if practicable, to cause personal service to be effected (rule 6.3(2)).

(13.3.3)
Where personal service is not effected or the demand is not advertised in the limited circumstances permitted by rule 6.3(3), substituted service is permitted, but the creditor must have taken all those steps which would justify the court making an order for substituted service of a petition. The steps to be taken to obtain an order for substituted service of a petition are set out below. Failure to comply with these requirements may result in the court declining to issue the petition (rule 6.11(9)) or dismissing it.

(13.3.4)
In most cases, evidence of the following steps will suffice to justify acceptance for presentation of a petition where the statutory demand has been served by substituted service (or to justify making an order for substituted service of a petition) –

(1) One personal call at the residence and place of business of the debtor where both are known or at either of such places as is known. Where it is known that the debtor has more than one residential or business address, personal calls should be made at all the addresses.

(2) Should the creditor fail to effect personal service, a first class prepaid letter should be written to the debtor referring to the call(s), the purpose of the same and the failure to meet the debtor, adding that a further call will be made for the same purpose on the [day] of [month] 20[ ] at [ ] hours at [place].

If they were after a CCJ, they would issue a court claim instead. If you fail to acknowledge and defend it, you'd get a CCJ by default. A SD cannot result in a CCJ but it can be followed by a bankruptcy petition if not set aside within 18 days. :scared:

For this reason it's always best if your creditors have your current address, you may not always respond to their communications but at least you'd know what's going on. :thumb:

[FlamingParrot]

Re: Help!! - lowells instructing bw legal on lloyds current account

I have telephoned Lloyds TSB today to enquire about transaction dates as I wanted to be fully armed when dealing with any response from BW Legal. I asked when the last payment of money was put into the account in question and the lady told me it was for £45 on 1/9/2009. This is bad news for me as this places the account within the 6 year timescale and open to action for BW. I asked where the transfer had come from and whether it had come from my other Lloyds account but she could not tell me as she said the ledger didnt say. It just said funds transfer £45. Could this be wrong as I really have no recollection of this and I would have thought I would have remembered this date as I was just about to give birth around that time!If it is correct that i did in fact transfer this money what effect does my SB letter to BW have?

They have to prove it isn't.

Will they have all the records etc? Should I now send a formal SAR to Lloyds and will this provide further info as I am seriously doubting that I did transfer any money into the account. or should I just wait to see what comes back from BW? (nothing to date has come back from them - how long would they normally take to respond?

For the sake of £10 + postage, it's probably worth sending the SAR to Lloyds to find out the nature of the alleged transaction. Most banks will argue they only have records for the past 6 years, however if this transaction was really made in 2009 it should appear on their records.