Lowell CCJ Papers - Statute Barred

[dizco]

Hello, new here, so apologies if this has been covered before.

I would welcome some advice regarding the following:

Around 2007 I opened a Halifax Current Account. I disputed some charges on the account, and it all escalated, and ended in me closing the account with a balance outstanding of over £300. I can't remember exactly when I defaulted on payments, but it would have been in 2009. I'm assuming this is now statute barred, but I have no paperwork to back this up.

A default was never registered against my credit file, and the debt has been passed to a number of collection agencies, and now rests with Lowell Portfolio.

I have just received a County Court Claim Form from Northampton, and have completed the Acknowledgedment of Service online, indicating that I wish to fully defend and dispute the claim.

At this point, I'm now getting nervous, as I don't really know what steps I should take in terms of contacting Lowell re: requests for information, Statute barred requests etc, and indeed whether I have a strong enough case to defend.

Any advice would be gratefully received.

Many thanks in advance.

[Nibbler]

Re: Lowell CCJ Papers - Statute Barred

Have you any letters from Halifax closing the account or demanding payment of the OD in full?

@nemesis45 @Amethyst

[nemesis45]

Re: Lowell CCJ Papers - Statute Barred

Hello, new here, so apologies if this has been covered before.

I would welcome some advice regarding the following:

Around 2007 I opened a Halifax Current Account. I disputed some charges on the account, and it all escalated, and ended in me closing the account with a balance outstanding of over £300. I can't remember exactly when I defaulted on payments, but it would have been in 2009. I'm assuming this is now statute barred, but I have no paperwork to back this up.

A default was never registered against my credit file, and the debt has been passed to a number of collection agencies, and now rests with Lowell Portfolio.

I have just received a County Court Claim Form from Northampton, and have completed the Acknowledgedment of Service online, indicating that I wish to fully defend and dispute the claim.

At this point, I'm now getting nervous, as I don't really know what steps I should take in terms of contacting Lowell re: requests for information, Statute barred requests etc, and indeed whether I have a strong enough case to defend.

Any advice would be gratefully received.

Many thanks in advance.

Good morning disco,

Some information please.

1. As [MENTION=1508]Nibbler[/MENTION] has asked did you receive a Demand For Immediate Payment in Full and/or a Final Demand? If so when?

2. Is this debt still on credit files? If so what does the entry say exactly.

3. Which solicitors is Lowell using?

4. Lowell tend to make up their own rule as to when the 6 year period for stat barred starts, so I suggest
a quick call to Halifax to see if they have a default date and or termination date for this account.

5. Exactly what does the statement of claim say? ( can you please, either type the statement of claim in here or post a copy after removing
your personal details)

Once we have the specifics I will be easier to recommend a course of action.
Please do not contact Lowell at this point all they want is money and they are
not likely to give advice to your benefit.

nem

[dizco]

Re: Lowell CCJ Papers - Statute Barred

Good morning disco,

Some information please.

1. As @Nibbler has asked did you receive a Demand For Immediate Payment in Full and/or a Final Demand? If so when? I may have received one from Halifax back then, I'm not sure. I received a final reminder from Lowell, but don't have this

2. Is this debt still on credit files? If so what does the entry say exactly. There is no entry for this showing on any of my credit files.

3. Which solicitors is Lowell using? BW Legal.

4. Lowell tend to make up their own rule as to when the 6 year period for stat barred starts, so I suggest
a quick call to Halifax to see if they have a default date and or termination date for this account.
I called and they advised I would need to go into a branch with identification, before they can disclose, even though I passed all security questions.

5. Exactly what does the statement of claim say? ( can you please, either type the statement of claim in here or post a copy after removing
your personal details).
Attached.

Once we have the specifics I will be easier to recommend a course of action.
Please do not contact Lowell at this point all they want is money and they are
not likely to give advice to your benefit.

nem

I've updated your points above and attached the front of the claim form. I look forward to hearing from you. Many thanks for your help.

[nemesis45]

Re: Lowell CCJ Papers - Statute Barred

I've updated your points above and attached the front of the claim form. I look forward to hearing from you. Many thanks for your help.

Hello Dizco

OK that gives all I need thank you.

Things To Do.

1. A CCA request to Lowell Portfolio1 Ltd. For a copy of the CCA 1974 Regulated Agreement for this account.

There is a £1 statutory fee to pay, use Postal Order endorsed " For Statutory Fee Only", There is a template in
the forum library for this. Lowell Has 12 + 2 Working Days to Comply. Send by signed for post, check delivery
date, the time scale starts the day the request is delivered. If Lowell fails to comply the debt is rendered unenforceable
Until the agreement is produced.

2. A Request made under the provisions of Civil Procedure Rule 31.14 ( CPR) (NO FEE) this goes to the solicitors.

The is a request for the documents specified in the statement of claim, in this case The Regulated Agreement,
The Default Notice and the Notice of Assignment. Template in the forum library. A nominal 7 day timescale applies.

Use signed for post.

If you can get into an Halifax Office and get the information I suspect it may be very useful.
All things being equal given what we know so far, it may be possible to sort this before it gets
much further.

nem

[NWHC]

Re: Lowell CCJ Papers - Statute Barred

You say it was for an overdraft in which case a cca request is useless however it seems that Lowell have no idea what it is for so a CCA request might just confuse their sad little northern brains

[Guest]

Re: Lowell CCJ Papers - Statute Barred

A CCA request would not apply to an overdraft. As for the final reminder from Lowell, it is irrelevant. What matters is when the Halifax decided to demand repayment of the overdraft. When the overdrawn amount is small, banks can leave the accounts open for a long time in the hope that one day you will use the current account again. For £300 that accrued mostly from charges over the months, it could easily be longer than a year, so you have to be careful here.

[Amethyst]

Re: Lowell CCJ Papers - Statute Barred

Bit odd their POC stating the claim is for 'a loans, financial services, overdrafts, credit agreement' - I'd say that means they had no idea what it is for and a CCA request is perfectly in order.

It also would appear to be a bit of an abuse of process, chucking everything into the POC and hope one of them sticks ?

[dizco]

Re: Lowell CCJ Papers - Statute Barred

Hello Dizco

OK that gives all I need thank you.

Things To Do.

1. A CCA request to Lowell Portfolio1 Ltd. For a copy of the CCA 1974 Regulated Agreement for this account.

There is a £1 statutory fee to pay, use Postal Order endorsed " For Statutory Fee Only", There is a template in
the forum library for this. Lowell Has 12 + 2 Working Days to Comply. Send by signed for post, check delivery
date, the time scale starts the day the request is delivered. If Lowell fails to comply the debt is rendered unenforceable
Until the agreement is produced.

2. A Request made under the provisions of Civil Procedure Rule 31.14 ( CPR) (NO FEE) this goes to the solicitors.

The is a request for the documents specified in the statement of claim, in this case The Regulated Agreement,
The Default Notice and the Notice of Assignment. Template in the forum library. A nominal 7 day timescale applies.

Use signed for post.

If you can get into an Halifax Office and get the information I suspect it may be very useful.
All things being equal given what we know so far, it may be possible to sort this before it gets
much further.

nem

OK, a fruitless visit to Halifax. They confirmed they could find no defaulted account currently in their system, and they suspect it's because the account defaulted over 6 years ago. I wasn't 100% convinced that a record doesn't exist, but the person who helped me said she couldn't see anything in my name. There was however, an open easycash account in my name, current balance £4.50 credit, and no history of default on it. I don't recall having 2 accounts with them at the time.

I'd welcome your thoughts.

In the meantime, I'm arranging the requests through Lowell.

[Ripped-Off]

Re: Lowell CCJ Papers - Statute Barred

I read this with some interest but may have missed one or two things in the process.

1. The claim form refers to assignment? Was there a notice of assignment received and was it compliant?
   
   
2. There isn't a specific pre-action protocol for debt recovery claims, but nevertheless I presume the Practice Direction on Pre-Action Conduct and Protocols has been used, and failure to resolve the dispute has brought the matter to this point?
   
   
3. The Limitation Period seems unclear. I thought the time period for a cause of action in a contract case started running from the day after the default occurred and expired after 6 years? In other words, the day after you were supposed to make a payment. If neither you nor they can establish the expiry date, then court proceedings are little premature. Surely, until that is established you haven't got out of the Pre Action stages?

[nemesis45]

Re: Lowell CCJ Papers - Statute Barred

I read this with some interest but may have missed one or two things in the process.

1. The claim form refers to assignment? Was there a notice of assignment received and was it compliant?
   
   
2. There isn't a specific pre-action protocol for debt recovery claims, but nevertheless I presume the Practice Direction on Pre-Action Conduct and Protocols has been used, and failure to resolve the dispute has brought the matter to this point?
   
   
3. The Limitation Period seems unclear. I thought the time period for a cause of action in a contract case started running from the day after the default occurred and expired after 6 years? In other words, the day after you were supposed to make a payment. If neither you nor they can establish the expiry date, then court proceedings are little premature. Surely, until that is established you haven't got out of the Pre Action stages?

Good morning,

There is some continuing argument on " relevant 6 year period start dates" Case Law such as that in the Appeal Court judgement in BMW Finance - v - Hart where their Lordships ruled that the date or termination was the start of the relevant 6 year period, however this judgement was in reference to an hire purchase account some debt purchasers now claim this applies to all credit accounts.
I for one disagree and rely on the tried and trusted " rule" with credit / store card accounts Date Last payment + 1 month, some credit card account state any missed payment means the account may be defaulted/ terminated immediately others 2-3 missed payments is specified.

There is as you say no pre action protocol for claims issued via the Northampton County Court Business Centre, these claims are issued " electronically " i.e. Money Claim Online" where no documents are sent attached to a claim.

Notices of Assignment are considered " generic " in nature and creditors do no have to archive copies, a notation on a customers account file that an NOA has been issued on a specificdate can be relied upon.
NOA's can be issued ( and often are) by the creditor and/or the debt purchaser, often the debt purchaser is " authorised" by the creditor to issue an NOA on its behalf these are even sent in the same envelope.

The HMCTS Small Claims Mediation Service provides a 2nd line for attempting resolution with out recourse to trial after a claim has been issued.

Prior " debt collection " activity by debt purchasers e.g. debt collection " begging" letters offers of discounted settlements, letters before claim fulfill the protocols
as " far as possible" a phrase you will see on most claim forms.

nem

[Openlaw15]

Re: Lowell CCJ Papers - Statute Barred

Good morning,

There is some continuing argument on " relevant 6 year period start dates" Case Law such as that in the Appeal Court judgement in BMW Finance - v - Hart where their Lordships ruled that the date or termination was the start of the relevant 6 year period, however this judgement was in reference to an hire purchase account some debt purchasers now claim this applies to all credit accounts.
I for one disagree and rely on the tried and trusted " rule" with credit / store card accounts Date Last payment + 1 month, some credit card account state any missed payment means the account may be defaulted/ terminated immediately others 2-3 missed payments is specified.

There is as you say no pre action protocol for claims issued via the Northampton County Court Business Centre, these claims are issued " electronically " i.e. Money Claim Online" where no documents are sent attached to a claim.

Notices of Assignment are considered " generic " in nature and creditors do no have to archive copies, a notation on a customers account file that an NOA has been issued on a specificdate can be relied upon.
NOA's can be issued ( and often are) by the creditor and/or the debt purchaser, often the debt purchaser is " authorised" by the creditor to issue an NOA on its behalf these are even sent in the same envelope.

The HMCTS Small Claims Mediation Service provides a 2nd line for attempting resolution with out recourse to trial after a claim has been issued.

Prior " debt collection " activity by debt purchasers e.g. debt collection " begging" letters offers of discounted settlements, letters before claim fulfill the protocols
as " far as possible" a phrase you will see on most claim forms.

nem

I have said this all along, there is no certainty as to the 6 limitation period for simple contracts, it's a very controversial area and it's not so simple, and saying, the clock starts again either is very simplistic. It is not known whether making a one off payments is breach or a continued breach. It is a complex area and businesses likely put pressure on the law commission to not review the law as per its statutory duties to review the law, owing to causing economic problems for businesses.

[nemesis45]

Re: Lowell CCJ Papers - Statute Barred

[QUOTE=Openlaw15;621540]I have said this all along, there is no certainty as to the 6 limitation period for simple contracts, it's a very controversial area and it's not so simple, and saying, the clock starts again either is very simplistic. It is not known whether making a one off payments is breach or a continued breach. It is a complex area and businesses likely put pressure on the law commission to not review the law as per its statutory duties to review the law, owing to causing economic problems for businesses.[/Q

It is very simple any payment by the debtor or an authorised 3rd party in a relevant 6 year period resets the " clock" to zero as would
any unequivocal written acknowledgment of a debt.

nemesis45

[Openlaw15]

Re: Lowell CCJ Papers - Statute Barred

[QUOTE=nemesis45;621561]

I have said this all along, there is no certainty as to the 6 limitation period for simple contracts, it's a very controversial area and it's not so simple, and saying, the clock starts again either is very simplistic. It is not known whether making a one off payments is breach or a continued breach. It is a complex area and businesses likely put pressure on the law commission to not review the law as per its statutory duties to review the law, owing to causing economic problems for businesses.[/Q

It is very simple any payment by the debtor or an authorised 3rd party in a relevant 6 year period resets the " clock" to zero as would
any unequivocal written acknowledgment of a debt.

nemesis45

It's not - some case law used is even Australian but still persuasive authority, I have not yet conducted a detailed research of the relevant area, nevertheless, I have noted it is problematic to say the least.

[Nibbler]

Re: Lowell CCJ Papers - Statute Barred

It is very simple any payment by the debtor or an authorised 3rd party in a relevant 6 year period resets the " clock" to zero as would
any unequivocal written acknowledgment of a debt.

Simple - in comparative terms - once the original cause of action has accrued.

Acknowledgement or part payment is treated as a "fresh accrual" of the ROA.

What constitutes acknowledgement or part payment can be debatable in some circumstances though, while at other times it is clear and obvious.

5) Subject to subsection (6) below, where any right of action has accrued to recover—

(a) any debt or other liquidated pecuniary claim; or

(b) any claim to the personal estate of a deceased person or to any share or interest in any such estate;

and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.