Received Statutory Demand for old Barclaycard debt - Help

[MOLLSTER27]

Hi
Yesterday I received a Stat Demand from a firm of Solicitors acting on behalf of Lowells.
The debt is for approx £4200.
I took out the card in 2002, and on my credit report it says that it was defaulted in 2009 so not Statute Barred.

I am planning on offering small monthly payments in the hope that they accept this and I can have the SD set aside.

I have read on here I think that many of these old Barclaycard debts are unenforceable. If I offer payments which they accept and then find out the debt is unenforceable if they can't provide me with a CCA will I be able to have the debt written off? Even if I am making payments?

I haven't slept so apologies if this doesn't make sense!
Thanks

[PlanB]

Re: Received Statutory Demand for old Barclaycard debt- Help

I received a Stat Demand from a firm of Solicitors acting on behalf of Lowells. . . .

. . . . and then find out the debt is unenforceable if they can't provide me with a CCA will I be able to have the debt written off?

Have you already sent a formal s.78 CCA request with the £1 statutory fee for this account to Barclaycard in the past? If not send one to Lowell (who now own your debt) asap in the hope that they won't petition for BR in 21 days' time. Next you need to apply for the SD to be set aside but we need a little more information to help you do this and you only have limited time (18 days + delivery).

Have you ignored or replied to Lowell's previous correspondence because if they have not heard from you since they purchased the debt they will presume you are avoiding the issue hence the SD. Or is there a history of letter writing you can rely on in court?

Finally do you own your home or rent?

[MOLLSTER27]

Re: Received Statutory Demand for old Barclaycard debt- Help

Hi there,
No I havent requested a CCA but will do on Monday.
I have just ignored previous letters from Lowells (buried my head in the sand- bad mistake I know)

Yes I have a mortgage with approx £40k equity.

One other thing- the SD was delivered yesterday, but the date on the paperwork is 9th February.
Thanks in advance

[TUTTSI]

Re: Received Statutory Demand for old Barclaycard debt- Help

Hi Molster
Until you know that Lowells actually own the debt and they can show you the true proof the assignment you must follow Plan B's advice and send off the for s.78 CCA ASAP.

Although this may not help immediately with the setting aside of the Stat Demand did you also have loads of charges with Barclaycard and are those charges over £12. If they are and you have the statements then you could list these out dates amounts.If not you need to write to barclaycard under a SAR request (Subject Access Report) to the data controller costs £10 this costs £10 + 40 days for them to respond. There fore this debt may well be reduced somewhat as I am sure you will have many charges. This will not help in the short term but if you know for sure how much this charges are then the amount can be disputed in relation to the charges.

You also need to start to move forwards with your setaside you do have 18 days and I believe from the date it is served.

You should also check that the court which they designated on your SD is one that deals with SD and Bankruptcy's as they do have a habit of issuing the SD to a wrong court.

By all means you could start negotiating with Lowells but you have no way at this time knowing if they legitimately own your debt.

As part of a negotiation you could offer a second charge on your home.... if thats at all practical as well as a small amount monthly payment..... but lets hold on to this thought until others have advised on the set aside to stop the ensuing bankruptcy petition from going into the next phase.

[labman]

Re: Received Statutory Demand for old Barclaycard debt- Help

Tutts,

Re the charges and the £12 limit, when did the limit come into force? Can anything in excess of £12 applied before that date be reclaimed, or do they stand at the higher rate?

Thanks.

[TUTTSI]

Re: Received Statutory Demand for old Barclaycard debt- Help

Labman
Back when the bank charges cases was in full swing, the OFT I believe stated that £12 for credit cards was fair and reasonable and after that all credit cards companies reduced their fees to £12. This is not set in stone but have found most credit card companies will refund anything above £12 going back 6 years. This was not worked out on actual time spent but it was a random figure that was plucked out of the air and the CC companies have stuck to that. They will argue that that was the OFT guideline. I suspect if you go on to the OFT website and search for CC charges you will find that guideline suggested by the OFT.

Here is the OFT guide line from 2006

http://www.oft.gov.uk/news-and-updates/press/2006/68-06
Press releases 2006 -

Current credit card default charges unfair

OFT sets threshold for intervention
68/06 5 April 2006
Credit card default charges (see note 1) have generally been set at a significantly higher level than is legally fair, said the OFT today. The OFT estimates that across the industry this has led to unlawful penalty charges currently in excess of £300 million a year.
Download Calculating fair default charges in credit card contracts (203 kb).
Download guide for consumers (64 kb).
The OFT now expects all credit card issuers to recalculate their default charges in line with the principles set out in a statement published today and to take urgent action where needed to reduce the level of credit card default fees. The industry has until 31 May to respond to the statement. These principles also apply to default charges in other consumer contracts such as those for bank overdrafts, store cards and mortgages.
Where credit card default charges are set at more than £12, the OFT will presume that they are unfair, and is likely to challenge the charge unless there are limited, exceptional business factors in play. A default charge is not fair simply because it is below £12. Setting a threshold for intervention is a pragmatic pro-consumer action that is designed to give the industry the opportunity to change its practice without litigation. It is supported by detailed guidance to the industry as to how to reduce the likelihood of public enforcement (see note 2).
A default charge should only be used to recover certain limited administrative costs. These may include postage and stationery costs and staff costs and also a proportionate share of the costs of maintaining premises and IT systems necessary to deal with defaults (see note 3). Exceptional business factors which may affect the level of a fair charge may include policies to prevent casual defaults as operated by issuers such as Egg (see note 4).
Only a court can finally decide whether a charge is unfair or not. The OFT has today set out a statement of its view of the law. This has not generally been accepted by most of the eight credit card issuers.
John Fingleton, OFT Chief Executive, said:
'Our statement of principles provides practical guidance to banks which increases their incentives to compete vigorously while protecting consumers from being charged unfair amounts. Our threshold approach is a spur to changes in market practice. We expect credit card issuers to adjust their default fee levels quickly. We have not ruled out future legal action if the market does not respond positively.'
NOTES
1. These are charges in standard credit card contracts for a failure to pay a minimum payment on the due date, exceeding a credit limit or a failure to honour a payment made.
2.
This reflects the OFT's duty to target its resources on serious consumer detriment as a priority over cases involving less harm to consumers. Card issuers are required to confirm their response to the OFT statement by 31 May 2006.
3.
A fair default charge should not exceed a reasonable estimate of certain limited administrative costs which the credit card issuer reasonably expects to incur as a result of default.
4.
The OFT is not proposing that default fees should be equivalent to the threshold, and a court will certainly not consider that a default fee is fair just because it is below the threshold. Where there are exceptional business factors, so that the presumption that a default charge over £12 is unfair is not applicable, this does not necessarily mean that the current level of the default charge is consistent with the OFT's interpretation of the requirements of unfair contract terms legislation. But for example, where a card issuer has a policy of requiring customers to pay minimum monthly repayments by direct debits, such as that operated by Egg, and offers credit cards only to customers that satisfy a relatively high scoring requirement it may be able to set a fair default fee at a level above the threshold.
5. The OFT has published a short guide for consumers and consumer advice agencies setting out the principles on which default charges should be calculated. This can be downloaded above.

Tutts,

Re the charges and the £12 limit, when did the limit come into force? Can anything in excess of £12 applied before that date be reclaimed, or do they stand at the higher rate?

Thanks.

[FlamingParrot]

Re: Received Statutory Demand for old Barclaycard debt- Help

Hi
Yesterday I received a Stat Demand from a firm of Solicitors acting on behalf of Lowells.
The debt is for approx £4200.
I took out the card in 2002, and on my credit report it says that it was defaulted in 2009 so not Statute Barred.

I am planning on offering small monthly payments in the hope that they accept this and I can have the SD set aside.

I have read on here I think that many of these old Barclaycard debts are unenforceable. If I offer payments which they accept and then find out the debt is unenforceable if they can't provide me with a CCA will I be able to have the debt written off? Even if I am making payments?

The reason they are said to be unenforceable is because Barcraps often can't find the paperwork, they sent a lot of agreements away for archiving and got destroyed after a few years. :grin: At the moment your first priority should be to deal with the SD. Did you get a Notice of Assignment from Lowell? Have you got a Default Notice (DN) from Barcraps?

Hi there,
No I havent requested a CCA but will do on Monday.
I have just ignored previous letters from Lowells (buried my head in the sand- bad mistake I know)

Yes I have a mortgage with approx £40k equity.

You should send the following with a PO for £1.00. Send it recorded delivery, if you can afford it, it may be an idea to send Special Delivery which is guaranteed to get there on Tuesday because time is not on your side.

Dear Sirs,

Account/Ref No:

With reference to the above agreement, I would be grateful if you would send me a copy of this credit agreement and a full breakdown of the account including any interest or charges applied.

A signed true copy of the deed of assignment of the above referenced agreement that you allege exists.

I understand that under the Consumer Credit Act 1974 [sections 77-79], I am entitled to receive a copy of any credit agreement and a statement of account on request.

I enclose a payment of £1 which represents the fee payable under the Consumer Credit Act 1974, and believe a copy of any credit agreement, along with a statement of account, should be supplied within 12 working days.

I understand that under the Consumer Credit Act 1974 creditors are unable to enforce an agreement if they fail to comply with the request for a copy of the agreement and statement of account under these sections of the Act.

I look forward to hearing from you.

Yours faithfully

Your name.

Usually you shouldn't sign such letters with your real signature to be on the safe side, however, to stop them from using this as an excuse not to comply and waste time, you may consider signing on top of this anti-tamper strip:

One other thing- the SD was delivered yesterday, but the date on the paperwork is 9th February.
Thanks in advance

Lowell seem to be resorting to this trick virtually every time nowadays, they probably expect people to think they are out of time and not attempt to set aside. :rant:

Those bar stewards have been dishing out SDs like confetti. :mad2: :mad2: There are quite a few Lowell SD threads but most are in the VIP section to keep them from prying eyes. You may consider upgrading to be able to discuss this more privately as well as to be able to access the other threads. If you wish to do that, you have to go to settings, the third group down is 'My settings', under 'My account', the last item is paid subscriptions. Under VIP member subscription, choose one year £9 or 10 years £25. See below. :grin: Attached Thumbnails

[FlamingParrot]

Re: Received Statutory Demand for old Barclaycard debt- Help

I would suggest contacting this firm of consumer lawyer,s and see what they have to say, PT2537 :first: works for the firm and he is also a member here and has won quite a few consumer cases ---> http://www.watsonssolicitors.co.uk/contact.html

You could PM PT2537 with a link to this thread and see what he suggests. I used to be on another forum where he also contributes and last year he successfully set aside a SD for anoter LB member (Plan B). They also won her case against Santander :clap2: :clap2: ---> http://www.watsonssolicitors.co.uk/santander.html

You should really check with them before making any offers (which they are not obliged to accept anyway). Offering a voluntary charge should be a last resort.

[MOLLSTER27]

Re: Received Statutory Demand for old Barclaycard debt- Help

Hi there,

I will do the CCA on Monday and send it Special Delivery.
However, I think that the 12 days Lowells have will take me over the 18 days limit for the SD.
I have checked the Court on the SD and it does deal with Bankruptcy. On what grounds can I apply to have th SD set aside? Can I just say I am waiting for paperwork?

I don't have any of my old Barclaycard statements or notice of default, but I think I did get a letter from Lowells saying that they were dealing with the debt.

With regards to my house, it is in joint names with my ex husband. I have since remarried and have been responsible for paying the mortgage for the last 7 years. I am unable to buy out my ex or have his name taken off the mortgage due to my poor credit score. ** I already have a Charging Order on the mortgage for approx £7k but I think it is a restriction only as the £7k debt was solely in my name.

I assumed Lowells would accept a monthly offer of payment, I didn't know they didn't have to do this.

If I can get them to accept montly payments and then find out that they can't provide me with the CCA is the debt then unenforceable meaning it can be written off?

Thanks again x

[FlamingParrot]

Re: Received Statutory Demand for old Barclaycard debt- Help

Hi there,

I will do the CCA on Monday and send it Special Delivery.
However, I think that the 12 days Lowells have will take me over the 18 days limit for the SD.
I have checked the Court on the SD and it does deal with Bankruptcy. On what grounds can I apply to have th SD set aside? Can I just say I am waiting for paperwork?

I don't have any of my old Barclaycard statements or notice of default, but I think I did get a letter from Lowells saying that they were dealing with the debt.

See ---> http://www.justice.gov.uk/courts/pro...cy_pd#IDA0QBIC

(13.4.5)

A debtor who wishes to apply to set aside a statutory demand after the expiration of 18 days from the date of service of the statutory demand must apply for an extension of time within which to apply. If the applicant wishes to apply for an injunction to restrain presentation of a petition the application must be made to the Judge. Paragraphs 1 and 2 of Form 6.5 (witness statement in support of application to set aside statutory demand) should be used in support of the application for an extension of time with the following additional paragraphs–


“(3) To the best of my knowledge and belief the creditor(s) named in the demand has/have not presented a petition against me.

(4) The reasons for my failure to apply to set aside the demand within 18 days after service are as follows: …”

If application is made to restrain presentation of a bankruptcy petition the following additional paragraph should be added:

“(5) Unless restrained by injunction the creditor(s) may present a bankruptcy petition against me”.

With regards to my house, it is in joint names with my ex husband. I have since remarried and have been responsible for paying the mortgage for the last 7 years. I am unable to buy out my ex or have his name taken off the mortgage due to my poor credit score. ** I already have a Charging Order on the mortgage for approx £7k but I think it is a restriction only as the £7k debt was solely in my name.

If the debt was in your sole name and the house is jointly owned, it would be a restriction.

I assumed Lowells would accept a monthly offer of payment, I didn't know they didn't have to do this.

See below:

The creditor will be able to make him banktrupt if the debt is due and payable, and he fails to pay it in full when it falls due or fails to secure or compund the debt to the creditors satisfaction.

They do not have to accept payments via installments, so if the judge is agreeable to the Creditors request he could make an order

If I can get them to accept montly payments and then find out that they can't provide me with the CCA is the debt then unenforceable meaning it can be written off?

Unenforceable means they cannot recover it through the courts, not that it's written off. The debt still exists but they wouldn't be able to obtain a CCJ against you or make you bankrupt.

PM PT with a link to this thread and ask him to take a quick look, he is your best bet.

[MOLLSTER27]

Re: Received Statutory Demand for old Barclaycard debt- Help

Hi thanks for the advice..

PM PT with a link to this thread and ask him to take a quick look, he is your best bet. [/QUOTE]

How do i do this? Sorry I am new to this site.

Can I just clarify--if they decide to accept installments off me then who stops the SD? Would it be them or me?
I just feel sick at all this.
Thanks again x

[FlamingParrot]

Re: Received Statutory Demand for old Barclaycard debt- Help

Click this link -> PT2537 On the sidebar on the left, click the second option down: Send Private Message. Type your message in the box and copy this link, which links to this thread -> http://www.legalbeagles.info/forums/...104#post322104

The SD has to either be withdrawn by Lowell or successfully set aside in court, if not, they could proceed to petition your bankruptcy.

[MOLLSTER27]

Re: Received Statutory Demand for old Barclaycard debt- Help

Morning,
Many thanks for help in sending the link, just done it.
Thanks again xx