Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

**nemesis45** · 28th September 2015, 19:35:PM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

Originally posted by Seeker2012 View Post

Received a claim? Yes
Issue Date: 5-1-2015
Amount approx: 2500
Claimant: Lowell Portfolio 1 Ltd
Solicitor: B W Legal
Original Credit: HALIFAX

Particulars of Claim:
Moneys due under Financial Services Agreement regulated by Consumer Credit Act 1974 between defendant and HSBOS PLC.

Account assigned to claimant 02.07/2014 notice of which given to defendant.

Defendant failed to maintain the contractual payment under the terms of the agreement and a default notice has been served and not complied with.

Claim also includes statutory interest pursuant to section 69 of the County Court Act 1984 at a rate of 8.00% per anum. A daily rate of 0.50 from the date of assignment of the agreement to 02/01/2015 being an amount of 92.50.

Stat Barred? No

Have sent: Acknowledged the Claim, Sent a CCA request, Sent a CPR 31.14 request

Other Info:
Do not recognize debt

Documentation rec'd from BWLEGAL on Sept 17th...incomplete and incorrect.

BWLEGAL offer 20% discount if settled...otherwise court case will continue.

Was unaware of debt being taken in my name.

Requested documentation proving it via CCA request and via CPR31.14...sent appropriate fees etc also.

Submitted defence via MCOL indicating I had no documents returned from BWLEGAL or LOWELL.

Heard nothing until 17th September 2015 when some documents arrived from BWLEGAL including letter stating if I agreed to settle for a 20% discount within 14 days no further court action would occur.

I looked at documents.....

1. Credit Agreement with dubious signature enclosed + Terms.
2. Meaningless Default Notice page generated from computer database with NO DETAILS and a single previous Database page relating to an apparent outstanding amount of £126.51. No mention of Name , Address , or indeed ANY information.....basically a template.
3. An Overdue Letter to a another person entirely for an amount apparently due to Welcome FSL. This I assume is a breach of Data Protection sending me someone else's details!
4. Some monthly summary balance outstanding sheets for 2013..but no indication of how figure arrived at.
5. Letters of assignment...but not on any headed paper or stamped in any way...could have been run off a word processor yesterday.

URGENT - I need to respond in some way by Oct 1st.

Can I request a 'Stay' based on still not having correct documentation? How can I amend my Defence now it is in MCOL.

Thanks in advance for any advice!

Good evening Welcome to LB,

It was rather to eager putting in a defence before knowing what exactly what it is being claimed.

What type of account is this loan/credit/card./current account/overdraft?
You can phone BW and as for an extension, but having already submitted a defence you have
complicated matters as doing this moves the claim forward and the court process continues.
Please explain the Oct 1st deadline and what forms you have had from the court.

I would like to see suitably redacted copies of all the documents you have received.

nem

**Seeker2012** · 29th September 2015, 08:55:AM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

Hi Nem,
thank you so much for prompt welcome and questions regarding case. I shall sort docs for you asap...but there are a few!

In brief.....the only document so far from court has been the Northampton County Court Claim Form (Issue Date 05th January 2015). I then used MCOL as it seemed I was timescales and aknowledged receipt etc.

Then...sent CPR CCA requests etc to BWLEGAL and LOWELL....nothing back......so I had to (as so many seem to have)...enter a Defence based on No Documentation...with the caveat that I would expect right to amend defence if anything arose.

No documents rec'd from BWLEGAL etc...all went quiet. No letter from court saying things 'Stayed' either.
Then 17th September I get 'WITHOUT PREJUDICE' letter accompanied by some documentation. Covering letter offers 20% discount if responded to by Oct 1st...otherwise action continues. The accompanying docs were as listed briefly in previous post.

I am thinking of responding by Recorded Delivery asking for more time to consider based on documentation received and requesting proper original copies be produced.....as I have no copy of Default Notice...No Statements indicating what purchases etc have apparently resulted in the total amount being claimed etc etc

Is there some other way I should respond? I am aware that negotiation is always preferred by a court....and BWLEGAL often take things to the wire. Surely I am entitled to proper copies or ORIGINAL documentation......and in some cases here..not just a Word Processed copy on blank sheets of paper?

Any advice gratefully received.....thank you.

**nemesis45** · 29th September 2015, 09:54:AM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

Hi Seeker,
It sounds from what you say BW is attempting a " reconstituted" agreement, i.e. in this case a " cobbled together" collection of dredged up file entries, not the first time I've seen this.
This may help you:
A reconstituted agreement Must have.

1. Your name and address as it was when the account was opened.

2. The credotors name and address when the account was opened.

3 Terms & Conditions relevant when the account was opened.

4. Terms and Conditions relevant when the account was closed.

5. Any material amendment made to the T's & C's during the life of the agreement.

6. Any other documents mentioned in the T's & C's.

Creditors are not obliged to store copies of Default Notices all that is needed is a note that a DN was sent on a specified date.

Once I've seen the documents I may have a suggestion for you.

nem

**FlamingParrot** · 29th September 2015, 10:45:AM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

Originally posted by Seeker2012 View Post

Then...sent CPR CCA requests etc to BWLEGAL and LOWELL....nothing back......so I had to (as so many seem to have)...enter a Defence based on No Documentation...with the caveat that I would expect right to amend defence if anything arose.

No documents rec'd from BWLEGAL etc...all went quiet. No letter from court saying things 'Stayed' either.

The courts don't send letters when claims get stayed after the claimant fails to respond to a defence.

Originally posted by Seeker2012 View Post

Then 17th September I get 'WITHOUT PREJUDICE' letter accompanied by some documentation. Covering letter offers 20% discount if responded to by Oct 1st...otherwise action continues. The accompanying docs were as listed briefly in previous post.

I am thinking of responding by Recorded Delivery asking for more time to consider based on documentation received

This is just one of their ploys to get people to settle and not an official deadline as such. It is possible to settle right up to the day of the trial so don't think you'd have missed the last boat so to speak.

Originally posted by Seeker2012 View Post

and requesting proper original copies be produced.....

As you probably know by now, a reconstructed agreement is acceptable, however, it would have to be based on the terms of your own agreement. Recently one of our members challenged an agreement in court and won on the basis that the terms were not really the ones he'd agreed to when he took out the loan. :thumb:

Originally posted by Seeker2012 View Post

as I have no copy of Default Notice...No Statements indicating what purchases etc have apparently resulted in the total amount being claimed etc etc

Most banks don't keep copies of DNs, they are mail-merged documents and not saved as individual files. They'd probably have a record of having sent one but not the actual document. Sadly you'd need to have your own copy to be able to assess whether the DN issued was compliant or not. :mmph:

**Seeker2012** · 29th September 2015, 16:13:PM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

Thanks for the useful info...much appreciated!

It seems to me I should probably still respond by Recorded Delivery asking for more time to consider? It seems the right thing to do to be seen to at least respond.

I am given to understand the the 'Sale of Debt Assignment' should be available (other forums indicate this has to be produced in court)...and it should Stamped, Dated and Signed + be Original. Should I have had (or should request) this? I certainly have nothing like it in the (largely photocopied and not on any headed paper) paperwork I was sent.

As regards Default ... should not LOWELL/BWLEGAL have to be to provide a valid copy of something original. As I understand it..you cannot pursue someone for a debt of they have not had a valid DN..and had time to recify the situation.

All I have from BWLEGAL ( as you implied before) is some type of mail-merge template which contain NO INFORMATION regarding my alleged account, address, financial information. All there is at the top is an address in leeds which presumably is for HALIFAX. Surely they cannot present that to a court?

Anyway, I am grateful for any pointers and thank you so much for taking your time to address my questions!

**nemesis45** · 29th September 2015, 16:51:PM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

If you are referring to the " Deed of Assignment " which is the contract between debt seller and the debt purchaser you will be tols it is a confidential commercially sensitive document and there is no obligation to provide it.
I have seen a court order the deed to be produced a waste of time and effort so heavily redacted they were worthless.

A " Notice of Assignment" is issued by the creditor and /OR the debt purchaser some times the debt purchaser provides both the creditors notice and it's own in the same envelope.

As said it will help if we could see the documents you have received.

BTW you can phone the solicitors and ask for an extension.

**Noah** · 29th September 2015, 19:50:PM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

The forum Get out of debt free goes on and on and on and...... about the deed of assignment quoting Pelias construction or something.
From the research I have done they do have a point however it is only ever produced or so it appears when a court orders it .

As somebody has said, creditors do not seem to keep copies of default notices which is very convenient for them when they have sent completely duff ones . What they will have is a computer log of when they were produced.

Again from my research, there is absolutely no reason why an original copy has to be produced. many firms outsource the storage of documents and if because of some disaster such as fire or flood these originals would be destroyed. As long as they can produce a convincing copy and can back it up with due diligence then they are usually covered.

A cca request requires a copy or recon of the original document , terms at opening and either current terms or terms at closing whichever is appropriate and a signed statement which can just be a balance. I do not believe that there needs to be separate copies of changes however meaningful they are, material is such a subjective word that we could argue all day as to what is material.
For example every time they alter the APR do they need to send you new terms, after all , in the 80's and 90's for example interest rates were up and down more often than a whores knickers so you could end up with a lorry load of terms.

If they have not produced anything maybe it is time to apply for it to be struck out but that costs

**FlamingParrot** · 30th September 2015, 02:03:AM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

Originally posted by nemesis45 View Post

BTW you can phone the solicitors and ask for an extension.

An extension of time to do what? :confused2: The 1st of October "deadline" is just one of them ruses to get you to settle at a 20% discount. :mmph:

**Seeker2012** · 30th September 2015, 10:25:AM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

Rang BWLEGAL this morning........explained I wanted more time to consider position on documents supplied.

Also pointed out I had received documents relating to the financial situation of a customer of WELCOME FLC (one of their clients I believe?). Also stated thsi was obviously a breach of Data Protection and also hoped MY information was not winging its way to other people. I kept things reasonable and pleasant.

Person at BWLEGAL agreed to a further 7 days extension to Oct 8th, and also asked that I destroy the documents I have for this other Customer. I said I would reserve judgment on that until all matters concluded. I did not make any threats.

I have said I will confirm our extension agreement and conversation in writing and outline the the 'other persons' documentation I now have.

At least i now have a breathing space to consider next move.

Thanks All for your constructive comments....it really is appreciated!

**MIKE770** · 30th September 2015, 10:36:AM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

keep those other persons documents, ammunition with regulators etc if needed, try not to ring these call centre staff they have very limited knowledge, and have been refused a job as road sweepers, ( no disrespect to real road sweepers),,.

**nemesis45** · 30th September 2015, 11:18:AM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

Originally posted by Noah View Post

The forum Get out of debt free goes on and on and on and...... about the deed of assignment quoting Pelias construction or something.
From the research I have done they do have a point however it is only ever produced or so it appears when a court orders it .

As somebody has said, creditors do not seem to keep copies of default notices which is very convenient for them when they have sent completely duff ones . What they will have is a computer log of when they were produced.

Again from my research, there is absolutely no reason why an original copy has to be produced. many firms outsource the storage of documents and if because of some disaster such as fire or flood these originals would be destroyed. As long as they can produce a convincing copy and can back it up with due diligence then they are usually covered.

A cca request requires a copy or recon of the original document , terms at opening and either current terms or terms at closing whichever is appropriate and a signed statement which can just be a balance. I do not believe that there needs to be separate copies of changes however meaningful they are, material is such a subjective word that we could argue all day as to what is material.
******For example every time they alter the APR do they need to send you new terms, after all , in the 80's and 90's for example interest rates were up and down more often than a whores knickers so you could end up with a lorry load of terms.*******

If they have not produced anything maybe it is time to apply for it to be struck out but that costs

Material changes (whatever you may " believe) are fundamental if the agreement has been modified then the amendents must be provide otherwise on cannot reconcile the documents supplied.

A simple notification of " changes to your credit agreement "is sent out it would be naive to thing a whole new set of T's & C's would be sent each time an amendments are made.

One can " invite " a claimant to withdraw a claim if there is a prolonged stay period by giving the claimant 7 days notice that you intend to apply for the claim to be struck out and for them to bear the costs of the application.

Lord Denning's judgement has been somewhat " down graded" in terms of relevance and the " DOA's that have been disclosed have been so heavily redacted the whole exercise of getting disclosure is/was pointless.

Creditors are not obliged to archive DN's, but some will supply a recon, the absence of a DN I has little effect on a claim, the notes on the clients file can be relied upon.

Even with a " defective" DN cannot be relied upon to have an effect on enforceability it's possible ( and has happened) that a judge instructs a claimant to produce a compliant DN.

nem

**Noah** · 30th September 2015, 16:49:PM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

Nemesis
I have been reading the FCA book and it says that only the original and current (as varied)

6) If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also either:

(a) a copy of the latest variation given in accordance with section 82(1) of the CCArelating to each discrete term of the agreement which has been varied; or,
(b) a clear statement of the terms of the agreement as varied.

I am having difficulty in reconciling that with what you are suggesting which if I understand correctly is that any material changes need to be itemised separately

From what they say it appears that terms and conditions at the start and terms and conditions at the end are quite sufficient , there is no need to provide a trail so you can match up the changes.

As for the Lord Denning ruling, surely it must be wrong if a high court ruling can be ignored by lower courts and organisations when it has not been superseded by a supreme court ruling . That seems to me to undermine the whole fabric of our legal system.
I am not saying you are wrong, just that it seems wrong to me

**nemesis45** · 30th September 2015, 17:42:PM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

[QUOTE=Noah;579681]Nemesis
I have been reading the FCA book and it says that only the original and current (as varied)
[/FONT][/COLOR][*]I am having difficulty in reconciling that with what you are suggesting which if I understand correctly is that any material changes need to be itemised separately [/LIST]

From what they say it appears that terms and conditions at the start and terms and conditions at the end are quite sufficient , there is no need to provide a trail so you can match up the changes.

As for the Lord Denning ruling, surely it must be wrong if a high court ruling can be ignored by lower courts and organisations when it has not been superseded by a supreme court ruling . That seems to me to undermine the whole fabric of our legal system.
I am not saying you are wrong, just that it seems wrong to me[/QUOTE

The " reconstituted " agreement is provided to meet the requirement of request made under the provisions of sections 77- 79 of CCA 1974 ( as amended) it is not intended to prove or disprove liability for an alleged debt. Enforceability is a matter for the judges.
Dealing with alleged debts and agreements has been complicated by the introduction of recons and every recon must be tested .

Material changes as in this changing the intent or meaning of any part of the credit agreement. The wording " as varied " say it all how is one to know if an agreement has been varied, many times recon agreements are cobbled together in attempts to pressure alleged debtors to give up and pay what may well be unenforceable debts.

As to Denning and Deeds of Assignment the practicality and the confidentiality aspect of disclosing the Deeds is really quite simple.

Debt is an asset sold by the owner ( creditor) under Contract ( the Deed ) under the provisions of the Law of Property Act 1925.

It contains the commercially sensitive data regarding " the purchase price of a portfolio of debts worth many thousands of pound Not just One persons debt but often many thousands of individuals debts this is why debt purchasers will decline to disclose deeds of assignment courts will very rarely order disclosure and as said any deed disclosed will be redacted extremely heavily, practicality make the disclosure of deeds worthless.

If individual debts were " marketed" the Deed may of more significance but with debt sold in huge portfolios it is not practical.
One of my tutors expressed his feelings regularly about " what should happen, what might happen and reality by stating:

"Rules are for the obedience of fools but for the guidance of wise men:.

**Seeker2012** · 19th October 2015, 10:50:AM

Re: Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015

Thanks for all the information. If I am reading everything correctly it would appear I have no option but to capitulate here.

As an update... I sent an official recoded letter outlining my concern at the delivery of another persons details to me. I also requested again proper copies of Default Notice and Assignment.

I received a reply a few days later officially apologizing for situation and not unsurprisingly stating that there would be no further documents forthcoming. I am expected to present proposals or things move on to court.
I have never seen a default notice arrive at my address...however it appears that does not matter. The sheet they sent with a Database entry showing a date at which point a letter was supposedly sent is sufficient for their purposes. I am stuffed!

I will be writing today to acknowledge receipt of that letter.

As I have seen on many forums it would appear, seeing as I have no income beyond a small pension that I should begin by offering a percentage of the alleged debt. Also pointing out the alternative, if they succeed in court will be a probable award of £1 a month for the foreseeable future based on disposable income.

It seem to me that I have to at least be seen to engage in some kind of dialogue along these lines. Also it would appear that mediation crops up even if the case goes forward?

Head spinning here really, but, as they say, the best way out is through.

I am grateful for all the advice I have been given on this forum, it truly is appreciated. Conflicting comments and judges decisions etc on various forums does make finding a way forward hard though!

Court Claim - Lowell Portfolio 1 Ltd / HALIFAX - 5-1-2015