Lowell / Bryan Carter - court papers arrived!

[lordsnooty01]

Hello everyone,

I'm a newbie here but was recommended to shuffle across by the guys on MSE for some much needed advice

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?"

Thanks all

[lordsnooty01]

Re: Lowell / Bryan Carter - court papers arrived!

Anyone?

to add, this was for an HP agreement.

do I need to send a CCA / CPR request?

[nemesis45]

Re: Lowell / Bryan Carter - court papers arrived!

Hi, Welcome to LB.

Let's get the basics done first.

Acknowledge service of the claim, this can be done online money claim online and state intention to defend.

Then a CCA request to Lowell for a copy of the agreement, there is a £1 statutory fee to pay ( use a cheque or postal order endorsed
" For Statutory Fee Only"). Lowell has 12 + 2 Working days to comply. use the template from the forum library.

Next a Request under CPR 31.14 (no fee) to Carter this is for the documents mentioned in the particulars of claim only. Template in the forum library.

Now you default query, the default date will have been part of the original credit file entry made by Black Horse, my guess is your earlier date is that date on Default Notice sent to you by BH giving you 14 days to rectify the arrears on the account, this date and a date a default is registered with a credit reference agency are Not the same.

Lowell can only update CRA files with its details are the " new " owner of the debt.

I see you say you have already requested a CCA from Carter, when was this and did you send the £1 fee, the statutory time scale for a CCA request is 12 + 2 Working Days. It would have been better to send that to Lowell.

Statute Barred in England and Wales = 6 clear years with No Payment or Unequivocal Written admission of liability.

A fairly recent Appeal Court Judgement in BMW Finance - v - Hart in which their Lordships judge that in the case of HP contracts the default date is effectively the start of the 6 year period.

If mu assessment of the default situation is wrong, can you provide proof that an earlier date was applied to the CRA entry if it is wrong it may be of some small benefit if challenged.

So we need accurate dates and figures to be able to advise further.

nem

[lordsnooty01]

Re: Lowell / Bryan Carter - court papers arrived!

Thanks Nemesis.......comments inline.

Hi, Welcome to LB.

Let's get the basics done first.

Acknowledge service of the claim, this can be done online money claim online and state intention to defend.

Then a CCA request to Lowell for a copy of the agreement, there is a £1 statutory fee to pay ( use a cheque or postal order endorsed
" For Statutory Fee Only"). Lowell has 12 + 2 Working days to comply. use the template from the forum library.

Next a Request under CPR 31.14 (no fee) to Carter this is for the documents mentioned in the particulars of claim only. Template in the forum library. Do CPR's apply to HP agreements too?

Now you default query, the default date will have been part of the original credit file entry made by Black Horse, my guess is your earlier date is that date on Default Notice sent to you by BH giving you 14 days to rectify the arrears on the account, this date and a date a default is registered with a credit reference agency are Not the same. Having checked my credit report archives, Black Horse (Hire Purchase) did have an entry on Equifax for a default date of XX/01/2010 - they were the original creditors, the account had been in dispute with BH (with regards final figure due to me terminating and handing the car back) since 2005 but that entry was removed from my Credit ref file. I was referring to the fact that Lowells are stating they too issued a default notice (I guess when they picked up the alleged debt from BH) on XX/09/2011.

Lowell can only update CRA files with its details are the " new " owner of the debt. See above.

I see you say you have already requested a CCA from Carter, when was this and did you send the £1 fee, the statutory time scale for a CCA request is 12 + 2 Working Days. It would have been better to send that to Lowell. 15 March 2015 to Carter - sadly I did not send a fee of £1 so maybe thats why they ignored? Should I now do this?

Statute Barred in England and Wales = 6 clear years with No Payment or Unequivocal Written admission of liability. Hmm so based on dates above this is a non starter?

A fairly recent Appeal Court Judgement in BMW Finance - v - Hart in which their Lordships judge that in the case of HP contracts the default date is effectively the start of the 6 year period. So 6 years after the default or last payment? If the latter I guess that would make sense.

If mu assessment of the default situation is wrong, can you provide proof that an earlier date was applied to the CRA entry if it is wrong it may be of some small benefit if challenged. Yes, I have a copy of my Equifax credit report in PDF format.

So we need accurate dates and figures to be able to advise further. Please advise if you need anything else

nem

[nemesis45]

Re: Lowell / Bryan Carter - court papers arrived!

Good morning,
1. The default date appears to have been " amended" Lowell cannot issue a new default on an already defaulted debt for any reason.
This is open to challenge and the default date can be back dated to the original.

2. CCA request to Lowell Not Carter, who will have to pass the request back to Lowell anyway. Don't forget £1 stat fee, use a check or Postal Order clearly endorsed for statutory fee only, Do not use a PO Box No. in Lowell's address which is:
The Compliance Mgr.
The Lowell Group
Ellington House
9 Savannah Way
Leeds Valley Park
LS 10 1 AH

Use signed for post check delivery the time scale for compliance is 12 +2 Working Days.

3. SB from info given is not applicable.

4. Although on that point the judgement is not fully clear, it is taken to mean the point at which a creditor can demand payment of the full mount owed with immediate effect, for practical purposes and simplicity the default date is the " safest" date to use when claiming an HP debt is statute barred.

5. CPR 31.14 Request to Carter ( no fee) this is for all documents mentioned in the particulars of claim. ( no other data can be requested.

6. I can help with a draft letter to challenge the CRA default date if needed.

nem

[lordsnooty01]

Re: Lowell / Bryan Carter - court papers arrived!

So Nem.........

I do appreciate the detail for next steps - thanks.

In terms of defensibility and considering the statute barred is not valid (barred is from default date, right and not the last payment date to Black HORSE which was 2006?) - once we have the information, do I even have a case to defend - I know they have made the erroneous error regards the default date which is a technicality, granted but they are also claiming the amount which was originally in dispute with BH in the first place.

IF I wanted to pay this amount, I would have done so to BH - it seems we have run 9 years since BH went all ostrich on this and I am in the same position having to pay these robin hoods?

Thx.

[nemesis45]

Re: Lowell / Bryan Carter - court papers arrived!

I am still concerned that the " default date" seems to have been changed from that registered by the original creditor.

Please tell us what, the balance showing as outstanding on the credit file is, and what the amount claimed is.
Also what do you believe the amount owed should be.

nem

[lordsnooty01]

Re: Lowell / Bryan Carter - court papers arrived!

The balance for both the BH and Lowells CRA entries are exactly the same.
The amount claimed is as per the entry on the credit file - approx £3.5k.
The amount that I believe to be outstanding based on my outstanding balance at the time (£18k) and the achieved auction value via BCA would have been nearer 1.5-2k - this is the dispute that BH as the original creditor would not enter into - this figure was based on the amount they got from the auctioning of the car but were officially allowed to give to me........in those days that particular car was sought after but I have nothing official to back the figures up.

[nemesis45]

Re: Lowell / Bryan Carter - court papers arrived!

Then I think it's time you made a Subject Access Request (SAR) to BH this is made under the Data Protection Act 1998 and requires BH to provide all the " personal" data it holds on you/the account.

There is a £10 statutory fee for this a cheque of PO made out to BH. They have 40 days to comply.
address to the Data controller.

Write to Carter and state you have requested data under the DPA 1998 from BH in regard to the account, as the amount claimed was in dispute with BH when the account was sold.
You request a stay/ extension of time to file a defence and will file once you have the data.

Use signed for post for all letters.

nem

[lordsnooty01]

Re: Lowell / Bryan Carter - court papers arrived!

So if I do the SAR to BH - does that not mean that the claim form will continue and therefore a judgement by default will occur?

Can I just ask -

In terms of the statute barred aspect - this is from date of last payment right? In this case the last payment to BH was April 2007 - no other communications have been entered into since, either with BH or Lowells (since they were sold the account).
BH took 2 years and 9 months to register a default against me before selling.

My historic credit files show that BH had the default showing on my Equifax account in Dec 2011 - Lowells state that they were assigned the account in September 2011. If that was true, how come BH still had the marker against my credit ref file?
Regardless of the above, Lowells then went on to issue (IMO a fictitious default date) when they were sold the debt.

Surely there is breach of protocol etc here and perhaps more importantly if the SB aspect is from date of last payment, it is well past the 6 year period.

Thoughts?