Bryan Carter & Lowell Financial

[Lisapc]

Hi everybody,

My wife has just had a BC letter (usual standard) advising that if she does not pay the full balance by the 20th October then they will issue court proceedings.

The debt is an old bank account overdraft that she had 2008 for £450.00, it has now risen to in excess of £1,000. I have just sent the below letter. Have I sent the correct one?

Many Thanks

I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974).I require you to provide me with a true copy, or reconstituted copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days).

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties. Your attention is drawn to ss.5(2), 3(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

In line with recent OFT Guidance (issued Oct 2010) surrounding Unenforceability, I presume you're aware that the OFT has stipulated that 'sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements'. This simply means that under these sections a debtor can pay £1 to get:

• a copy of their agreement
• copies of some of the other documents mentioned in their agreement
• a statement of account

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

• make the debtor pay the debt before they're supposed to
• get a court judgment against the debtor

So, in line with the OFT Guidance, and the Consumer Credit Act, please find attached my £1 payment, which is the statutory fee - note that these funds are not to be used for any other purpose. If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems.

I do, expect the main actions to be dealt with, as matter of course, and look forward to hearing from you within the prescribed time-scales quoted however, in the meantime, I require that you clarify your position on this point as failure to do so, even by omission or lack of a response, will be regarded as an attempt to deliberately misrepresent or conceal the legal position regarding this matter to which an appropriate complaint will be made to the OFT.

Yours faithfully,

[FlamingParrot]

Re: Bryan Carter & Lowell Financial

Hi everybody,

My wife has just had a BC letter (usual standard) advising that if she does not pay the full balance by the 20th October then they will issue court proceedings.

The debt is an old bank account overdraft that she had 2008 for £450.00, it has now risen to in excess of £1,000. I have just sent the below letter. Have I sent the correct one?

Many Thanks

I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974).I require you to provide me with a true copy, or reconstituted copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days).

Unfortunately the CCA request you've posted does not apply to current account overdrafts, s.77 refers to loans, s.78 to credit card and s.79 to hire purchase agreements, they're bound to reply saying something along those lines.

[FlamingParrot]

Re: Bryan Carter & Lowell Financial

My wife has just had a BC letter (usual standard) advising that if she does not pay the full balance by the 20th October then they will issue court proceedings.

The debt is an old bank account overdraft that she had 2008 for £450.00, it has now risen to in excess of £1,000. I have just sent the below letter. Have I sent the correct one?

Although the CCA request doesn't apply, you should still respond to their letter as BC DO issue proceedings and you should take that letter as a letter before action. You may want to look at this thread for a letter to send: http://www.legalbeagles.info/forums/...687#post478687 :thumb:

That one referred to a mobile contract which doesn't fall under the CCA either, yet Bryan Carter seemed to have given up the ghost when confronted with the need to supply documents. :grin: :grin: :grin:

The letter should be sent recorded delivery. :typing:

[Lisapc]

Re: Bryan Carter & Lowell Financial

Hi many thanks for this information, I sent them the letter by e-mail even though they say that they do not accept communications via e-mail. Can you please paste the letter that I need to send them next? They and did respond advising that the CCA was not valid and sent over statements from the account in question.

The last time my wife had anything to do with the account in question was Nov 2008. The amount has been racked up by the bank in charges and fees even though they knew it wouldn't be cleared. Not sure if we can push them back with unfair bank charges or not as they are still within the 6 year timescale.

[FlamingParrot]

Re: Bryan Carter & Lowell Financial

Hi many thanks for this information, I sent them the letter by e-mail even though they say that they do not accept communications via e-mail. Can you please paste the letter that I need to send them next?

If you use email for the sake of speed it's always a good idea to follow on with a letter sent by post, preferably recorded delivery. You don't need to send them another letter until you get a response from them or they contact you again, we don't follow the three letter system here, we prefer to refer to the Civil Procedure Rules (CPR).

They and did respond advising that the CCA was not valid and sent over statements from the account in question.

If it was an overdraft the CCA request wouldn't apply as there would have been no credit agreement, just a current account agreement. However, the letter I posted a link to is not a CCA request but a response to a letter of claim under the pre-action conduct: http://www.justice.gov.uk/courts/pro...action_conduct

7.1 Before starting proceedings –

(1) the claimant should set out the details of the matter in writing by sending a letter before claim to the defendant. This letter before claim is not the start of proceedings; and

(2) the defendant should give a full written response within a reasonable period, preceded, if appropriate, by a written acknowledgment of the letter before claim.

7.2 A ‘reasonable period of time’ will vary depending on the matter. As a general guide –

(1) the defendant should send a letter of acknowledgment within 14 days of receipt of the letter before claim (if a full response has not been sent within that period);

(2) where the matter is straightforward, for example an undisputed debt, then a full response should normally be provided within 14 days;

Basically the claimant's solicitors have sent a letter before claim, even if it's a non-compliant one, it still has to be replied to as noted above. :typing: What you are saying is that their letter does not comply with the protocol because it doesn't provide you with the necessary information as noted below:

2. Claimant’s letter before claim

2.1 The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –
(1) the claimant’s full name and address;
(2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);
(3) a clear summary of the facts on which the claim is based;
(4) what the claimant wants from the defendant; and

(5) if financial loss is claimed, an explanation of how the amount has been calculated.
2.2 The letter should also –
(1) list the essential documents on which the claimant intends to rely;
(2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this;
(3) state the date by which the claimant considers it reasonable for a full response to be provided by the defendant; and
(4) identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see.
2.3 Unless the defendant is known to be legally represented the letter should –
(1) refer the defendant to this Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction; and
(2) inform the defendant that ignoring the letter before claim may lead to the claimant starting proceedings and may increase the defendant's liability for costs.

The last time my wife had anything to do with the account in question was Nov 2008. The amount has been racked up by the bank in charges and fees even though they knew it wouldn't be cleared. Not sure if we can push them back with unfair bank charges or not as they are still within the 6 year timescale.

The debt is sadly not Statute Barred yet. You may want to look at the bank charges threads, this one in particular: http://www.legalbeagles.info/forums/...ter#post474094 :thumb: