Kafka - v -BC/Lowell

[Kafka]

OK, this is a claim I'm handling for someone else who has asked me to help, though I've never directly dealt with Lowell before (surprisingly).

In brief, a 2005 credit card with Capital One that has had a lot of arrangements for reduced payments due to financial difficulties and major health issues. With Lowell since April 2014 and now at the stage of refusal to comply with CPR request in response to LBA. Overview of key issues:

Agreement - this is only an application form on one sheet obtained through SAR.

Charges - not a lot of these owing to the account being so long in limbo but there are £160 in lates from 2005/6.

Default Notice - issued July 2009 and the copy looks in order to me.

Assignment - In April 2014 Lowell notified ownership. On the same day they sent a forged NoA from Cap 1 in a different envelope but with the same margin coding LOW... In the SAR Cap 1 say they sold it in March, but there is no valid NoA as none was ever sent.

Balance - a little over 2k

[Kafka]

Re: Kafka - v -BC/Lowell

Cap 1 Timeline
March 2005 - application sent
April 2005 – card approved
November 2005 onwards – financial difficulties and charges added (£160)
May 2006 - £1 monthly repayment plan operated through CCCS
July 2007 – notification of changes to account, acknowledging payment plan and spelling out new terms in detail, but this was never a signed agreement.
2009 – CCCS stop all repayments owing to financial hardship
July 2009 – Default Notice issued
March 2012 – Cap 1 notify that CCCS has not passed on £5 payment
April 2012 – Frederickson start chasing
May 2012 – Bryan Carter sent first threatening letter
11 April 2014 – Introduction letter from Lowell saying they have bought the account in March
11 April 2014 – ‘Notice of Assignment’ from Cap 1 sent on same day as Lowell’s letter, in different envelopes but with the same coding in the margin, so clearly forged by Lowell to look like a proper NoA.
April/May 2014 – threats from Lowell
June 2014 – threats from Lowell and Hamptons Legal
July 2014 – threats from Fred and Lowell
13 Aug 2014- BC send LBA
21 Aug 2014 – CPR request sent to BC
28 Aug 2014 – BC reply saying they don’t need to supply any documents as they were sent at the time and the claim will go to small claims track

[ncf355]

Re: Kafka - v -BC/Lowell

With the NoA, don't get tied up on this - it matters not whether the OC (Cap 1) or Lowells sent the NoA, so long as notice was given - this is all a court would care about (IME at least).

It appears to me the Default notice was issued particularly late, in reality they should have issued this shortly after the first payment problems and agreement of the payment plan - for the sake of their court action, it doesn't matter, but I'd bet anything that Lowells have a Default on the credit file with a date commencing July 2009, with an intention of it remaining in place until July 2015, whereas IMHO the Default date on the credit file should have been May 2006 at the very latest (the date the CCS plan started) as at this point they knew the agreement was not going to be kept.

So by the above logic, any Default on your friends file should be removed immediately as it ran out on May 2012 and they are opening themselves up to a counterclaim that is most likely larger than their claim (guessing as you don't mention amounts).

As for their claim -

Clearly, if the agreement started in 2005, court action would operate under the 'old rules' of S127(3) meaning if they cant show the original (or legit copy of the original) signed agreement the they are fighting a losing battle - unenforceable, end of.

I have had personal experience of Capital One's CCA responses and taken court action against them for the same, which did not go quite the way they might have hoped - though cautionary note that this was waaaaaaaaaaaaaaaay back in the day!.

Additionally of course, they need to show a right of action - which is where id be asking for the DEED of assignment (the actual purchase contract between Cap 1 and Lowells) as without this they cannot prove they have the right to take your friend to court.

To me, it all sounds pretty much in your friends favour, but going by your own post count/experience I guess you had got that!

However, always best to play it cautious, particularly when it's someone else's court case rather than yours.

There is a letter template around to respond to the @It's small claims, we don't have to respond to the CPR" type argument (a crock of crap, - I'm taken it the court hasn't assigned a track yet? - if not, the CPR request stands)

What's your current plan?

[Kafka]

Re: Kafka - v -BC/Lowell

Thanks ncf

I'm just looking ATM at the other Lowell/BC threads here to see what has happened, but none seem to match closely in detail, only the process pursued by Lowell.

A key point here is the validity of the application form as an acceptable agreement, when its only the application form and doesn't contain the prescribed terms in my view. I haven't seen another thread for Lowell yet where this was really looked into, so hoping someone could give me a steer!

[Amethyst]

Re: Kafka - v -BC/Lowell

Forget application form or agreement.

What is important is the prescribed terms.

Can't see on your list when a CCA request was sent.... also a scan of the CCA sent in response would be helpful.

[Kafka]

Re: Kafka - v - BC/Lowell

CCA has been sent but not responded to yet. SAR to Cap 1 has already retrieved the data that Lowells/BC will have access to and scan of application form is attached. I would say that this is legible.

A woolly mixture of credit rates are given, but no credit limit or details of repayments.

[Kafka]

Re: Kafka - v -BC/Lowell

After a long delay with this, BC have replied with a response that appears to be to the CPR request sent on 21 August. There has been no response yet to the CCA request.

The package contains the following sections:

1) Original agreement
This contains a copy of the application form posted above in #6.
I regard this as being legible but only just.
Within the application form there is reference in a box near the bottom to the rate of interest as this was for balance transfers, but it also says "I am applying for 2 cards with 0% interest..." when that was never the case. I can see nothing about credit limit or repayment obligations.

Attached to this is a 5-page typed list of Terms and Conditions (coded V10#), but this is undated. It has the name and address typed into the document.

2) Defaulted Agreement
This is a different set of T&Cs, again undated and with no name or address within. The document has 6 pages and is coded V14#

There is a copy of a separate letter to the cardholder called 'TERMS OF YOUR CAPITAL ONE CREDIT CARD AGREEMENT and stating that the T&Cs are detailed on the back. The reverse does show the terms, but has the default charges as £12 when the other T&Cs refer to £20, so this appears to be a cobbled version of an earlier template that pre-dates any agreement. There is no date anywhere on this document.

3) Statements
A pile of these copied.


They have not included a copy of any Default Notice as requested.

There is no copy of any Notice of Assignment either. No valid NoA was ever received and Lowell just sent two copies on the same day in April 2014. One from them notifying new ownership and another forged as if it came from Capital One and sent in a separate but identical envelope. They both carry similar Lowell coding in the margin and were clearly produced together.

[Kafka]

Re: Kafka - v -BC/Lowell

I would appreciate any comments on the documentation disclosed by BC. This was done despite their earlier letter refusing to comply to CPR request and I'm not familiar with cases where BC actually discloses documentation.
Thanks.

[Kafka]

Re: Kafka - v -BC/Lowell

....

[ncf355]

Re: Kafka - v -BC/Lowell

Personally, I don't think that helps them

Seems like their claim has more holes than a colander!

If I found myself in your shoes I'd be applying for their case to be struck out for the lack of default notice and the S127(3) argument

From all you have said, they have not shown the prescribed terms in an agreement signed by you and it looks like the document they are relying on for the terms doesn't match with the one you signed

Obviously all the above is IMHO and I'm NOT legally trained, but have been in your shoes a fair few times

aw:

[Kafka]

Re: Kafka - v -BC/Lowell

Personally, I don't think that helps them

Seems like their claim has more holes than a colander!

If I found myself in your shoes I'd be applying for their case to be struck out for the lack of default notice and the S127(3) argument

From all you have said, they have not shown the prescribed terms in an agreement signed by you and it looks like the document they are relying on for the terms doesn't match with the one you signed

Obviously all the above is IMHO and I'm NOT legally trained, but have been in your shoes a fair few times

aw:

Thanks for that. They haven't actually filed yet as the requests were made pre-action. They have indicated that they will progress this after 17th if no offer to settle is made.

I did send SAR when this first appeared so I'm already in possession of everything that the OC has :whistle:

[ncf355]

Re: Kafka - v -BC/Lowell

If they are yet to issue, I'd keep schtum and give them enough rope to hang themselves.

Once they have issued you have 2 lines of attack:

1) Agreement is Pre April 2007 and lacking presecribed terms, therefore unenforceable

2) They have failed to send a default notice that complies with S87 CCA 1974 therefore they have no right of action

(if they wanted to re issue a S87 that is complaint, they would need to discontinue and seek the courts permission to re issue as its the same claim - I would think the court would be unlikely to grant this considering the claim has other issues)

[ncf355]

Re: Kafka - v -BC/Lowell

Just noticed above you HAVE seen the default - could you put a scan up so we can disect it?

[Kafka]

Re: Kafka - v -BC/Lowell

The Default Notice was in the SAR bundle.

[ncf355]

Re: Kafka - v -BC/Lowell

Err

Amethyst etc may or may not back me on this?, but I'm pretty sure the '28 days' thing is a no - no - I believe case law somewhere stated they MUST state a date by which the payment needs to be made

Thats for starters.........