Urgent Advice Please BW Legal - Lowell & County Court Claim

[FlamingParrot]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Default date 8/12/2009 - court action initiated end of June this year. I cannot trace a demand for final payment in full.

The default date recorded on credit files is not relevant for the purpose of limitation although it could be used as an aid to estimate when the cause of action may have been. With small overdrafts, the banks often take longer before they decide to recall them issuing a final demand. :mmph:

The POC in initial court claim stated monies due under Financial Services Agreement regulated by CCA - defendant failed to maintain contractual payment and default notice served and not complied with. Does my CPR request cover this?
I requested copies of Agreement, Default Notice and Assignment in my defence.

Presumably you mean you requested them in your CPR request rather than your defence. Yes, the CPR request covers any documents mentioned in the particulars of claim, however, once a defence is submitted and the claim allocate to small claims it can no longer be enforced because it's made using part 31 of the CPR which does not apply to small claims. It can only be used prior to allocation. Having said that, the court will still require them to provide you with the documents at least 14 days before the trial date: https://www.justice.gov.uk/courts/pr...es/part27#27.4

(i) a direction that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which he intends to rely at the hearing;

Should bwlegal still be providing copies of default notice and notice of assignment before the court allocated a new court date in SCT?

They should be providing the documents they intend to rely on as above, which would be after the hearing is listed but before it takes place.

Should I be writing direct to bwlegal asking for these two documents again or wait for the court to send me N180? :dizzy:

There's no need to write to them again, you've submitted a defence stating that they did not supply you with the documents. Also keep in mind the burden of proof is on the claimant to show that the debt is not statute barred, not on you to prove it is. :thumb:

[ditzee]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Hi FlamingParrot - it would appear I ran into financial difficulty in the June of 2009 as final salary paid into account in May 2009 and credit file states default date December 2009 so not fully sure where I stand on a possible statute barred defence! I requested documentation from bwlegal before submitting my defence to court and received nothing. BWlegal letter today simply refers to Statement of Account - no default notice or notice of assignment attached. I think I am right in thinking that I now need to wait for the N180 from the court and then am I right in thinking a court date will be set for my local court and bwlegal will have to supply these two documents 14 days prior to this hearing or is that not applicable now we know it relates to a bank account overdraft? Is there anything I can do to clarify if it is possibly statute barred?

[nemesis45]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Hi Nem

You are correct - this debt refers to an overdraft with HBOS - or Halifax as they were known when I banked with them - as I say default date is December 2009. I do have a debt relating to a re-possession and secured loan on my home at that time but I have no court action that I am aware of being taken against me in relation to that - I have corresponding on here about court action relating to debt purchased by Lowell which assumed was credit card from wording on court claim but is in fact overdraft. I look forward to reply as to how I proceed from now.

It's a problem when woefully badly trained "litigation assistants" pick the wrong claim template, and a current account/OD is put on a regulated agreement template it's very confusing.

You CPR request is still valid and the claimant still has to disclose the documents on which they intend to rely on in court at least 14 days before a hearing.

With a default not registered until December 2009 and a suspected last payment in May 2009 unless there were other payments after May it seems that the OC was stretching the terms of reasonableness by defaulting in December 2009.

nem

[FlamingParrot]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Hi FlamingParrot - it would appear I ran into financial difficulty in the June of 2009 as final salary paid into account in May 2009 and credit file states default date December 2009 so not fully sure where I stand on a possible statute barred defence!

The trouble with overdrafts is that they don't have set repayment dates like loans, cards, etc. where as soon as you miss a payment, the bank could have a case to take action, so the clock doesn't start to run until they demand repayment in full. If your salary was paid in May I doubt the bank would have demanded repayment of the overdrawn balance in June, they would have expected you to carry on using the account and having further funds paid in. IMHO that would mean it wouldn't be SBd I'm sorry to say.

I requested documentation from bwlegal before submitting my defence to court and received nothing. BWlegal letter today simply refers to Statement of Account - no default notice or notice of assignment attached.

A default notice may be issued for an overdraft but its significance is not the same as for a fully regulated agreement.

I think I am right in thinking that I now need to wait for the N180 from the court and then am I right in thinking a court date will be set for my local court and bwlegal will have to supply these two documents 14 days prior to this hearing or is that not applicable now we know it relates to a bank account overdraft? Is there anything I can do to clarify if it is possibly statute barred?

You could send a SAR (to the bank), however, all you'd get is mostly statements and you already know when money was last paid in as you say above. Copies of letters such as DNs and final demands are not usually retained by banks as they are mass-produced using mail merge and just stuffed into envelopes. It is possible a SAR *may* reveal some file notes on your account showing when a final demand could have been sent (even if not a copy of the actual letter) but this is a bit of a shot in the dark. :mmph:

They would have 40 days to respond and court process does take time so it's not likely a hearing would be listed before the 40 days are up, you would have to pay £10 + recorded delivery postage for the privilege so it's up to you. :decision:

[ditzee]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Hi FlamingParrot - so debts relating to bank accounts seem very difficult to defend as the claimant does not need to produce a default notice or notice of assignment? It looks as though the photocopied bank statement they sent me today is the only documented evidence they require so I don't see how I can defend this claim. Last monies paid in May 2009 and initial court summons posted to me June 2015 and seems unlikely I can prove that is statute barred!:sad:

[nemesis45]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Hi FlamingParrot - so debts relating to bank accounts seem very difficult to defend as the claimant does not need to produce a default notice or notice of assignment? It looks as though the photocopied bank statement they sent me today is the only documented evidence they require so I don't see how I can defend this claim. Last monies paid in May 2009 and initial court summons posted to me June 2015 and seems unlikely I can prove that is statute barred!:sad:

Is this bank " statement" headed with the creditors name, your name account number, they must produce the Notice of Assignment if it's mentioned in the POC. They have also mentioned a Default Notice and have not provided that.

I cannot see a photocopied statement being enough to enforce this.

Another point ( you may have answered this already but I can't find it) When was this account opened.

nem

Ditzee can you post up a copy of the bank statement please.

[ditzee]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Hi Nem

Account opened 29/10/2001 with the Halifax - does this affect my situation? I will try and scan the document - should it be e-mailed to a particular e-mail address? The bank statement is not headed up with any creditor's name! There is one type-face with my name and address on it and another type-face with the branch of the bank on it. It states my original bank account number and sort code.

[FlamingParrot]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Hi FlamingParrot - so debts relating to bank accounts seem very difficult to defend as the claimant does not need to produce a default notice or notice of assignment?

A notice of assignment applies to any debt that has been assigned (sold) to a debt purchaser regardless of whether it's regulated by the CCA or not. It is the requirement for a compliant default notice under s.87 of the CCA that does not apply to overdrafts.

It looks as though the photocopied bank statement they sent me today is the only documented evidence they require so I don't see how I can defend this claim. Last monies paid in May 2009 and initial court summons posted to me June 2015 and seems unlikely I can prove that is statute barred!:sad:

I'm sorry, I was under the impression it was YOU saying you last paid into the account in May 2009 based on your own records and/or recollection, not them. :ohwell:

Account opened 29/10/2001 with the Halifax - does this affect my situation?

I shouldn't think so.

I will try and scan the document - should it be e-mailed to a particular e-mail address? The bank statement is not headed up with any creditor's name! There is one type-face with my name and address on it and another type-face with the branch of the bank on it. It states my original bank account number and sort code.

You don't need to email it, you can just post it up on this thread, this may be of help: http://www.legalbeagles.info/forums/...r-details-safe!) :nerd:

[Berniethebolt]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Well what a load of claptrap!

Separate debts for a start.
We are dealing with the fact that this is a Halifax CC/OD account as Ditzee has discovered from documents supplies and credit reference files.
Answers to the specific questions Ditzee has asked regarding this Halifax Debt have been answered.
Awaiting Ditzee's confirmation of the default date showing on the credit file.
nem


If you are unable to comprehend what has happened here it would best if you apologise and leave the thread.

Nemisis
As usual from what i read you are unable to take any critiscm .
My question relating to the mortgage shortfall was purely to clarify the position as in post 1
[QUOTE]I lost my owned home and have currently live in a rented property. I have been chased by the original creditor HBOS PLC for some time now and now they are proceeding with court claim./QUOTE]
and then post 8
[QUOTE]Thank you for your help. I had my home re-possessed and was left with a shortfall debt of £41,219.01. I believe this debt has been purchased by Lowell. Again, I apologise for any misunderstandings or confusion on my part but due to my illness I have not retained all letters relating to my debts and find it difficult to deal with. To date, this is the only debt whereby court proceedings have been initiated against me./QUOTE]

As you can see , as ditzee made the highlighted comment it was necessary to check.

It would seem that you and everyone else failed to pick up on the words
[QUOTE]The Claimant's Claim is for the sum of £835.58 monies due from the Defendant to the Claimant under a Financial Services agreement regulated by the Consumer Credit Act 1974 between the Defendant and HBOS PLC/QUOTE]
Particularly when Ditzee said they thought it was a barclaycard debt and also everyone failed to pick up the letters in post 20 although at least in the defence the correct OC was named

Your advice on the defence included relying on non compliance with S78 yet even you must know that S78 does not apply to overdrafts

The best advice on the thread was the post by flaming parrot giving links to sources for Bankruptcy fees, incidentally Ditzee may be able to apply for a budgeting loan from the DWP to pay those fees although that would need paying back, that is advice I saw a long time ago on MSE from someone heavily involved with CAB .Rizzle or someone I believe.

The only apology I will make is if I have upset Ditzee , that was not my intent . From my perspective I can not see an easy way to defend this unless they have not terminated the account or the default notice is not good . Maybe Flaming parrot or someone with experience could give input on that

[nemesis45]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Every thing had been clarified an sorted out the POC mentioned a regulated agreement prior to the " discovery" that this was an overdraft, both FP and I then stated that the CCA request was no longer viable and the pursue the CPR 31.14 request,. As you see in post 78. So you are wrong once again!

The debt being dealt with today is a Halifax Account Balance £654+ not £835. wrong again.

For the most part here FP and I have said the same things.
So one can only come to the conclusion that your sole purpose it to look for points that you believe might
enable you to disrupt and dispute threads.

[ditzee]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Hi Nemesis and FlamingParrot- the default notice and notice of assignment were both mentioned in POC! Is only the notice of assignment applicable then as it is bank account debt? Having problems with my scanner and editing documents since my upgrade this week to Windows 10 lol! Any further advice for me or action I can take or just sit tight and wait for N180 from the court? I get the impression that bwlegal are relying wholly on this photocopied bank statement as only documentation required for court action! Sorry to ramble on so much today and if I have caused any confusion on the forum. :loco::noidea::crazy:

[Berniethebolt]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Ditzee
I am really sorry that this has happened , I did not want to get into an argument with anyone so I have pm'd my comments to nemesis45. I just felt that there had been a mix up which can happen on a forum. I do not know what Flaming Parrot thinks but I know you have no money and survive on benefits but in order to avoid the CCJ maybe you would want to think about a Tomlin order or even just negotiate a repayment plan with Lowells . I hate saying that but I am I think being practical.

Current accounts are very difficult things. Of course if you continue with the defence, which is perfectly possible but will need some changes in your witness statement -that can be spun to make it look like BW were at fault for not supplying the documents anything is possible. With the mortgage shortfall however I would be seriously considering investigating funding for BR . Turn2us provide some good info as do some of the debt charities

I wish you all the best

P.S.
You are not the first and won't be the last to not be sure what a debt is for , particularly if you are suffering with depression/anxiety and god knows what else

[nemesis45]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Hi Nemesis and FlamingParrot- the default notice and notice of assignment were both mentioned in POC! Is only the notice of assignment applicable then as it is bank account debt? Having problems with my scanner and editing documents since my upgrade this week to Windows 10 lol! Any further advice for me or action I can take or just sit tight and wait for N180 from the court? I get the impression that bwlegal are relying wholly on this photocopied bank statement as only documentation required for court action! Sorry to ramble on so much today and if I have caused any confusion on the forum. :loco::noidea::crazy:

Hello Ditzee don't worry I think we have got to the heart of the matte
The confusion was not your fault.

The claimants solicitor has drafted the particulars of claim very carelessly which can only
be in your favour I for one can't see this statement bein acceptable on its own as proof of
liability.

The claimant has to prove you owe this debt and an uncertified copy of a statement that could have
been cobbled together by anyone with access to a computer and a printer and the short period the statement
covered both very suspicious.

The documents that the claimant will have to be disclosed at least 14 days prior to a hearing.

nem

[ditzee]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Are the court likely to accept photocopies of a bank statement as enough evidence to proceed with a ccj in the Legal Beagles opinion? Is it worth my negotiating with bwlegal or direct with Lowell and proposing £1 per month and if so how do I go about this or do you think if the court side in favour of the claimant they are more likely to be reasonable about sensible monthly re-payments given my situation? I have never acknowledged this debt but am I right in saying that the SB clock has been reset anyway so liasing with bwlegal will not be detrimental to my case?:help:

[nemesis45]

Re: Urgent Advice Please BW Legal - Lowell & County Court Claim

Are the court likely to accept photocopies of a bank statement as enough evidence to proceed with a ccj in the Legal Beagles opinion? Is it worth my negotiating with bwlegal or direct with Lowell and proposing £1 per month and if so how do I go about this or do you think if the court side in favour of the claimant they are more likely to be reasonable about sensible monthly re-payments given my situation? I have never acknowledged this debt but am I right in saying that the SB clock has been reset anyway so liasing with bwlegal will not be detrimental to my case?:help:

BW legal " solicitors" cannot make any decisions they have to refer everything back to their client.

Given the age of the account and the small period of time covered by the statement (s) I can't see
them being accepted.

nem