Hello everyone. New boy needing some help with Lowell

[horatioeastwood]

Hi to everyone,

Been on and off this forum for a while trying to gather as much information as I can to help my situation but am at an impasse as the specifics of my problem seems makes it difficult to follow a standard route.

So a little background.

Recently I have started to be refused credit everywhere I have applied. Although this was the case for me 3-4 years ago, my credit rating obviously improved as I started being accepted for mobile phone contracts, credit cards, overdrafts etc. in the past couple of years. All this changed recently when a number of things happened such as my overdraft being cancelled for no apparent reason. Concerned I checked my credit report on noddle (operated by CallCredit) in October 2012 and lo and behold a series of monthly defaults had appeared on my account since May 2012. This surprised me for a few reasons. Lowell had been pursuing me for a credit card debt from 2006/07 but all efforts by them had stopped for the past two years. Now it seemed they had resurrected the claim. The other puzzling thing is that when I checked my report again in January they had backdated my default to June 2010! For Lowell to suddenly appear on my report after all this time and to then be able to backdate boggles the mind. Lastly the date of default they place on my report is 27/06/2008 which is several years after the actual default (neatly moving it outside of statute barred limitations). The problem is I cannot recall the original date of default (I think it was 2005) but my last acknowledgment of the debt was around 2006-2007, again I am unsure. Either way this debt is or will be statute barred in a matter of months.

Now what I need to do is find out when I made last payment, and I know that I can do this via a SARs request. Only problem is does this mean I'm acknowledging the debt as I really don't want to do that as I am pretty close to it being unenforceable if it isn't already?

The other thing is that I want the defaults to be removed from my file and for Lowell to be prevented from searching it. I know a Section 10 Data Subject Notice can do this but is it something I should do?

Any advice on this would be gratefully received.

[Kafka]

Re: Hello everyone. New boy needing some help with Lowell

Can you provide a timeline of events through the history of this account please?

It sounds as if Lowell are trying to restart the limitation period by altering the default date. Do you have a copy of an old credit report with this on?

[FlamingParrot]

Re: Hello everyone. New boy needing some help with Lowell

It sounds as if Lowell are trying to restart the limitation period by altering the default date. Do you have a copy of an old credit report with this on?

The Limitation period has nothing to do with the default date, it's to do with the last payment or written acknowledgment. The OFT guidelines stipulate that a default should be recorded between 3 to 6 months after the first missed contractual payment. Many creditors don't follow these guidelines, which results in credit files ruined for much longer than they should, :rant::rant::rant: however, that doesn't affect Statute Barred in any way. :grin:

See this post ---> http://www.legalbeagles.info/forums/...277#post307277

Recently I have started to be refused credit everywhere I have applied. Although this was the case for me 3-4 years ago, my credit rating obviously improved as I started being accepted for mobile phone contracts, credit cards, overdrafts etc. in the past couple of years. All this changed recently when a number of things happened such as my overdraft being cancelled for no apparent reason. Concerned I checked my credit report on noddle (operated by CallCredit) in October 2012 and lo and behold a series of monthly defaults had appeared on my account since May 2012. This surprised me for a few reasons. Lowell had been pursuing me for a credit card debt from 2006/07 but all efforts by them had stopped for the past two years. Now it seemed they had resurrected the claim. The other puzzling thing is that when I checked my report again in January they had backdated my default to June 2010! For Lowell to suddenly appear on my report after all this time and to then be able to backdate boggles the mind. Lastly the date of default they place on my report is 27/06/2008 which is several years after the actual default (neatly moving it outside of statute barred limitations).

See above, it affects your credit record but not the limitations period or SBd.

The problem is I cannot recall the original date of default (I think it was 2005) but my last acknowledgment of the debt was around 2006-2007, again I am unsure. Either way this debt is or will be statute barred in a matter of months.

Now what I need to do is find out when I made last payment, and I know that I can do this via a SARs request. Only problem is does this mean I'm acknowledging the debt as I really don't want to do that as I am pretty close to it being unenforceable if it isn't already?

No, a SAR is person specific, not account specific. You have the right to find out what data a company holds about you and that's not restricted to financial institutions, you can SAR an ex-employer or the DWP. Requesting all data held about you doesn't acknowledge the debt. See this ---> http://www.legalbeagles.info/forums/...608#post310608

[horatioeastwood]

Re: Hello everyone. New boy needing some help with Lowell

Ok guys. Thank you for the quick responses. Well I've just realised that maybe I did default in 2008. Only problem is I can't remember. Here's the timeline to help you understand.

1. Barclaycard default my card and send it to their own collections department. Early 2006.
2. Start offer payments of £1.
3. Stop paying and burn all relevant papers. (This actually happened) early to mid 2008 (I think).
4. Ignored all communication. Never paid anything again. Poor credit continues.
5. 2010 open a current account with £440 overdraft and pass credit checks for a contract mobile phone. This was an unprecedented turn.
6. In the coming year open a joint account, get a credit card. In 2012 I get another mobile phone contract. Things are looking good.
7. Oct 2012 refused credit several times. Check report and Lowell have appeared on it from May putting a default on my account every month since then.
8. Jan 2013. Check report again and Lowell has backdated the default to 2009. Credit score has dropped from 4/5 to 1/5.

Well that's most things I think. As it stands I am unsure of exactly when I last acknowledged the debt. Should I do a SARs request?

[CleverClogs]

Re: Hello everyone. New boy needing some help with Lowell

Ok guys. Thank you for the quick responses. Well I've just realised that maybe I did default in 2008. Only problem is I can't remember. Here's the timeline to help you understand.

1. Barclaycard default my card and send it to their own collections department. Early 2006.
2. Start offer payments of £1.
3. Stop paying and burn all relevant papers. (This actually happened) early to mid 2008 (I think).
4. Ignored all communication. Never paid anything again. Poor credit continues.
5. 2010 open a current account with £440 overdraft and pass credit checks for a contract mobile phone. This was an unprecedented turn.
6. In the coming year open a joint account, get a credit card. In 2012 I get another mobile phone contract. Things are looking good.
7. Oct 2012 refused credit several times. Check report and Lowell have appeared on it from May putting a default on my account every month since then.
8. Jan 2013. Check report again and Lowell has backdated the default to 2009. Credit score has dropped from 4/5 to 1/5.

Well that's most things I think. As it stands I am unsure of exactly when I last acknowledged the debt. Should I do a SARs request?

YES

[horatioeastwood]

Re: Hello everyone. New boy needing some help with Lowell

Ok. How about a CCA request. Or does the SARS cover that? Does a CCA acknowledge the debt?

[Kafka]

Re: Hello everyone. New boy needing some help with Lowell

The CCA request is a specific legal instrument designed to establish whether they have the correct paperwork about the agreement such that they could enforce it. In this case that shouldn't really matter because it was statute barred anyway. All a CCA request requires is details of the agreement.

SAR is a statutory right to access all the personal data they hold on you for a fee of £10. It should also include any copy of the agreement they hold, but it wouldn't require them to provide things like the terms & conditions applicable at the time (as the CCA request does), as that's generic data not personal to you.

The heart of the issue here is that they filed a default years after the event and that is creating an impression on your credit file that the debt is still within the Limitation period and hence a current blot on your record. By doing that they have effectively taken a statute-barred debt and presented it as current, which is what I meant above when I said they were trying to extend the Limitation period.

The SAR to Barclaycard will produce all the data they hold and you will be able to see what happened when the problems first occurred and what action was taken about defaulting. It will also show when it was transferred to Lowell and that transfer puts Lowell in responsibility for all credit entries after that date. You really need to see all the back history of this (as you have no paperwork) and then the picture should be clearer. It sounds as if you have a solid case to get Lowell to completely remove the default, but you need to act on solid evidence to do that. They have 40 days to respond to your SAR request.

[FlamingParrot]

Re: Hello everyone. New boy needing some help with Lowell

Ok. How about a CCA request. Or does the SARS cover that? Does a CCA acknowledge the debt?

In theory they are supposed to send you a copy of the agreement with the SAR but they don't always do that. A SAR doesn't offer you any legal protection under the Consumer Credit Act, nor does it allow you to dispute the account on the basis of non-compliance (although you CAN complain to the ICO for non-compliance with a SAR but that's a separate matter).

A CCA request shouldn't acknowledge the debt, but neither will it tell you when the last payment was made. There wouldn't be much point in sending one for a Statute Barred debt because SBd is a much stronger argument for not making payments than any CCA-related enforceability issues.

[CleverClogs]

Re: Hello everyone. New boy needing some help with Lowell

Ok. How about a CCA request. Or does the SARS cover that? Does a CCA acknowledge the debt?

A request made under section 77 (link) or section 78 (link) of the Consumer Credit Act 1974 certainly could be taken as acknowledging the alleged debt but, if the alleged debt is already statute barred (section 5 - link - of the Limitation Act 1980) then it remains barred regardless of what untruths the debt collecting drones might tell one:

... a right of action, once barred by this Act, shall not be revived by any subsequent acknowledgment or payment. (section 29(7) of the Limitation Act 1980 - link)

[horatioeastwood]

Re: Hello everyone. New boy needing some help with Lowell

Thanks for all the help guys.

Well that's the thing, I'm not sure if it is statute barred now but doing a sars request to Barclaycard is a much better idea than sending to Lowell. Where would I send this to?

I suppose then if it turns out to be not statute barred I can then CCA request off lowell.

[gravytrain]

Re: Hello everyone. New boy needing some help with Lowell

Just come across this thread.

Just for clarity, the SOl period commences from the cause of action, which is usually taken to be the default date, so you are quite right in thinking that the attempt to alter the default date could have an affect of the SB date, providing that there was no payment or written confirmation of the debt in the interim.

[Kafka]

Re: Hello everyone. New boy needing some help with Lowell

The Limitation period for unsecured debt is 6 years (5 in Scotland) and its 6 years from the last payment to the account or formal acknowledgement of the debt. After that it becomes Statute Barred and although the debt still technically remains, it is a defence against legal action being taken for it. However, in some cases you can argue that it is overriden by Concealment, if the true nature of the charges - for example - were taken dishonestly like PPI or penalties said to be cost-covering, when it counts as 6 years from when the deceit was realised.

In this case, the DCA seems to have registered a default on a statute-barred debt, creating the impression that it is not statute barred. Anyone looking at the credit report assumes that the account is still live, as the default needs to be filed within a certain period and therefore would by now have fallen off the report. If the OP is certain that 6 years passed, then the DCA needs to be tackled to remove the default, or else to justify it. If it was me I would also take action against the DCA for damages for wrongful default, as well as removal.

[Kafka]

Re: Hello everyone. New boy needing some help with Lowell

Here is some info from another forum on statute-barred debt and how to deal with DCAs trying to restart them off again.

If a DCA contacts you after 6 years has passed

The Limitation Act (1980) provides for the right of action to cease after a 6-year period has elapsed (read 5 years for Scotland - Prescription and Limitation (Scotland) Act 1973). Unless there are special circumstances that create some exemption, then a debt cannot be pursued after a period of 6 years has passed since the last payment towards the debt, or a formal acknowledgement of that debt.

In practice, this means that we cannot generally reclaim charges that were placed on an account more than 6 years before the date that the claim is filed in court, even though those charges were unlawful. On the other hand, if you have not paid towards or formally acknowledged a debt within 6 years, then no DCA or original creditor can then chase you for the debt. It has become ‘time barred’ or 'statute barred'.

That’s the theory, anyway. However, with the boom in bad debts and DCAs running amock with all the bad debts being ‘sold on’, it is becoming a common practice for them to buy up old debts that are either close to the 6 years (to start the 6-year clock ticking again) or over that time. Although debts over 6 years cannot be legally collected, a number of DCAs are now using the tactic that you still need to pay. By bullying or tricking people into acknowledging the debt or making a payment, they are then claiming that the clock has started again and the Limitation Act no longer debars the debt from collection.

THIS IS UNTRUE

Don’t be taken in by DCA dirty tricks. Refuse to acknowledge the debt, refuse to pay and tell them to take a long walk on a short pier. If you have trouble with them, please start a thread in the DCA forum and explain what has happened.

This is the official statement from Payplan, the debt support agency.

“If a payment is made after a 6-year gap, the Limitations Act 1980 is still enforceable and the debt remains Statute Barred.
However, in this instance, it is unlikely that you will be able to claim back any payments made after the 6 years from the creditor because you still owe them the money.
If a creditor, who you haven't had any communication with for 6 years contacts you about the debt you should write to them quoting the Limitation Act (1980).”

(http://www.payplan.com/debt-library/...n-act-1980.php)

*******************

and here from HMRC

IHTM28384 - Law relating to debts: statute-barred debts

If a lender allows time to pass without receiving any payment an action for recovery may become barred.

Under the Limitations Act 1980 the time limits are
in simple contracts, 6 years
in contracts under seal, 12 years.
If the debtor acknowledges the debt in writing or makes a part payment within the original limitation period, then the time limits start to run again from the date of acknowledgement or the date of payment.

Even though the lender may be barred from pursuing recovery, a debtor may decide to pay the debt after the expiry of the time limits. Because of this you should allow a debt which is otherwise statute-barred if the personal representatives pay the debt and you receive evidence that the payment has been made.

The above instructions do not apply to debts in Scotland. Under Scottish law, if a lender allows time to pass without receiving any payment an action for recovery may become barred under the Prescription and Limitation (Scotland) Act 1973. (For details of this Act see Gloag and Henderson 10th edition at Chapter 15.). These debts are completely extinguished and cannot be enforced. Once the prescriptive period expires the debt cannot be allowed as a deduction.

http://www.hmrc.gov.uk/manuals/ihtmanual/IHTM28384.htm

********************

and here from the OFT's Debt Collection Guidance (OFT 664)

Statute barred debt
2.13 This guidance applies to the pursuit of debt regardless of its age. We will be
carrying out further work on this aspect of debt recovery including analysis of
relevant legislation and practice throughout the UK.
2.14 In the past we have dealt with a number of statute barred debt cases governed by
the Limitation Act 1980, which applies to England and Wales. Based on that
experience our position with regard to England and Wales remains:
a. we accept legally the debt exists
b. it is the methods by which the debt is collected that can be
unfair as follows:
• it is unfair to pursue the debt if the debtor has heard nothing from
the creditor during the relevant limitation period
• if a creditor has been in regular contact with a debtor before the debt
is statute barred, then we do not consider it unfair to continue to
attempt to recover the debt
• it is unfair to mislead debtors as to their rights and obligations, for
example, falsely stating or implying that the debt is still legally
recoverable and relying on consumers not knowing the relevant legal
provisions, and
• continuing to press for payment after a debtor has stated that they
will not be paying a debt because it is statute barred could amount to
harassment contrary to section 40 (1) of the Administration of
Justice Act 1970.

[gravytrain]

Re: Hello everyone. New boy needing some help with Lowell

Indeed but the SB period commences from six years after the cause of action it is only reset by conformation or payment in the interim

SOL 1980
5. An action founded on simple contract shall not be brought Time limit for
after the expiration of six years from the date on which the cause actions
of action accrued

[gravytrain]

Re: Hello everyone. New boy needing some help with Lowell

Incidently section 40 of the administration of justice act no longer applies to commercial contracts it was revoked by the CPUTR