WON!!! Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

[Celestine]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)



I took over this case

[FlamingParrot]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

Hi

Went to the hearing. The solicitors turned up with no paperwork. Judge ruled that they could have an extention for 56 days to get t he paperwork needed.

Ruled that I have until 8th april to submit a statement and they could have until 29th april.

The judge was not interested in anything i had to say and would not discuss the sd to be set aside.

Sounds like the statement you are due to submit will be your chance to put forward your arguments and have your say. You should take that opportunity to bring up any relevant points, such as the fact they never really satisfied your s.78 request. They have to show you signed an agreement containing all the prescribed terms at the time of inception, if you got a Morgan Stanley card in the first place, you wouldn't have agreed to any Barclaycard terms at inception, would you? So that can't be an accurate reconstruction of your agreement. :nono:

With regards to the DN, they should only have asked for the arrears at the time, not the full amount, and given enough time to remedy it. However, once you failed to do so, the full amount allegedly outstanding would become payable so it probably wouldn't take it below the BR threshold.

You wouldn't normally get a copy of the Deed of Assignment but you should have received a proper Notice of Assignment (NoA). See what other arguments you can find. See this other thread where Lowells are getting what they deserve: :grin: http://www.legalbeagles.info/forums/...l-Lowell/page8

[roygoodbeat]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

Hi

Went to the hearing. The solicitors turned up with no paperwork. Judge ruled that they could have an extention for 56 days to get t he paperwork needed.

Ruled that I have until 8th april to submit a statement and they could have until 29th april.

The judge was not interested in anything i had to say and would not discuss the sd to be set aside.

[FlamingParrot]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

Take a look at this thread, where the Judge threw out a Lowell SD on the basis they could not provide an agreement or a DN. :grin: --> http://www.legalbeagles.info/forums/...n-out-by-Judge

[roygoodbeat]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

Ok. Have a hearing on Monday. Trying to get this set aside.

Need some quick advice on the following:

Key arguments are:

1) Credit agreement. Never sent a full set of t&c's to my s78 request. Reconsititued terms sent by barclaycard, and do not bear resemblance to credit agreements. eg. One refers to Barclaycard but this was a morgan stanley account when taken. Have only been sent one page from Lowells with Morgan Stanley on. Only 4 parts to agreement, lt looks like a cut and paste and the application refers to page 7, but there is no page 7 or section.

Also, did the Wakesman case refer to the fact that under a section 78 request, a reconstitued agreement is OK, however, a copy of the original t&c's along with any prescribed terms since?

2) Default notice is invalid for both as it was issued by Mercers. Debt has been sold to Lowells so it cannot be changed. I understand that I am only liable for the amount outstanding at the time of default. This would take this below the bankrupcy limits.

3) Statements. Key argument is that I believe I have been overcharged. Have asked for all statements since accounts opened but never been supplied. Lenders say that they only have to keep records for 6 years but I am sure that I read somewhere there is a law requiring them to keep this longer. Wanted to check that I have been charged the correct interest.

4) Bank charges. At what rate can I claim interest at. I know that the oft stated that £12 was a fair charge, but noticed that Barclaycard charge £12 for late payment, £12 for over limit fee, £12 for another fee, all on the same day for the same transaction. Thats £36! That's happened a few times.

5) never received a deed of assignment from Morgan stanley or Barclaycard despite requesting this.

6) I have no equity in the property, no assets, and Lowells believe that they can get there hands on something that is no there. Only reason why they are doing it. I believe they are trying to use this as a debt collection rather than going down the county court route which they may lose due to the defective agreements, t&c's, default, charges.

A number of issues here, not down to one thing. Need to ensure I can fight this. Any help would be appreciated.

[roygoodbeat]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

A DN can only be issued by the OC, not by a debt purchaser, once the debt has been sold, they DCA can't issue a DN because they would have bought an account that was already defaulted.

Can they issue a dn once they have sold it. To date, I have never received any other. If not and they are using the faulty notices, what am I liable for. Also what if they suddenly produce one? What defence do I have?

[FlamingParrot]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

So a lender can issue in invalid default notice, charge it off, sell it whilst there are outstanding items eg charges, credit agreement and never supply any other default notice. Then they can seek enforcement still without a valid default notice and then just change it if challenged??

Does not seem right that they can do that. Sounds like moving of the goal posts and no one can stop it.

A DN can only be issued by the OC, not by a debt purchaser, once the debt has been sold, they DCA can't issue a DN because they would have bought an account that was already defaulted.

[MIKE770]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

So a lender can issue in invalid default notice, charge it off, sell it whilst there are outstanding items eg charges, credit agreement and never supply any other default notice. Then they can seek enforcement still without a valid default notice and then just change it if challenged??

Does not seem right that they can do that. Sounds like moving of the goal posts and no one can stop it.

and that sums up the so called legal service in this country, why the need for legislation when M OF j ETC PLAY AROUND WITH IT.

[roygoodbeat]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

So a lender can issue in invalid default notice, charge it off, sell it whilst there are outstanding items eg charges, credit agreement and never supply any other default notice. Then they can seek enforcement still without a valid default notice and then just change it if challenged??

Does not seem right that they can do that. Sounds like moving of the goal posts and no one can stop it.

[FlamingParrot]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

Sadly, creditors are able to rectify defective DNs, which defeats the purpose of DNs having to meet certain criteria in the first place. If you had kept the envelope, you could establish that it wasn't sent first class, it's more likely to have been sent via UKMail or some snailmail service like that. You probably wouldn't have known all this in 2009.

The default date on your CRA file doesn't come into play, the guidelines say you should be defaulted between 3 and 6 months after your missed payment but they are just guidelines, and cannot be enforced.

Mercers are part of Barclays.

[roygoodbeat]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

Put my defense in. Waiting to see if I have a hearing at the court.


1) My key arguements is that I have not received the t@c's from the original agreements therefore my credit agreement request is still outstanding.
2) I have not received all the statements since the accounts were opened and never a confirmation of charges applied since these were done. I have been unable to check that they have applied the correct interest rates and believe they may have overcharged me.
3) They have issued an invalid default notice.
4) Never addressed my charges.


can someone run by me the default notice rules so I can prepare myself.


1) Notice issued by Mercers, not Barclaycard.
2) Sums include unlawful charges.
3) the service date is a tricky one. Was sent default notice on the Tuesday 19th May. Arrived on the Saturday. The date by is 5th June. (Was also a bank holiday over that period. They will claim it was sent first class I am sure.
4) It was titled 87(i), not 87(1).


If I am correct, the results of an invalid default notice makes me only liable to to the arrears at the time, less unlawful charges/ interest. If so, what interest rate can I charge and is it to the default date, or can it apply to now. I have also noticed that when Lowells took over the account, Barclaycard wrote to me saying that they had not registered the default date on credit files. Therefore they have registered it as the 26 nov 2009, not the 5th june 2009 as this would have been the default date. Also noticed that the charge off date was in sep 2009, and therefore can they change the default date to after this? I also hear that some lenders have been changing default notices to get around enforcement.


Any advice on this would be appreciated.

[roygoodbeat]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

This is an sd under s268(1) (a) insolvency act 1986.

[pt2537]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

If this is a claim then yes you need a Defence.

If this is a statutory demand served under s268 insolvency Act 1986 then you need the form 6.4 and form 6.5

Both are quite different, so we need to be clear.

[roygoodbeat]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

Can anyone look at this. Need to do a defence!!

Also noticed that the default notice is not only from Mercers but is also under section 87 (i) not 87 (1)

Beginning to panic! The alternative is to call and arrange regular payments but I can't afford it!

[roygoodbeat]

Re: Lowells, Statutory demand issued (Ex Barclaycard and Morgan Stanley)

Ok. Need to prepare my defense if I am going to over turn this notice and hand it in tomorrow. . Need help quick!

The SD has two accounts lumped together.

To make it easier I will break them down:

1) Morgan Stanley, then B/C, now lowells Opened in 2003

1) Default notice issued my Mercers on the 19th May 2009. Settle before day is 5th June 2009. There was a a bank holiday over this time.
2) Subject access request made originally on the 27th April 2009
3) S78 Request June 9th 2009
4) Made another subject access request to Lowells in 24 November 2011. Received a copy of the application forms attached earlier. I have only ever received the one page with the t&c's. Looks like it is only in part. The front refers to section 16 (personal data) but there is no section 16 in the ones they have sent.
5) Never received a notice of assignment or copies from either Barclaycard or Morgan Stanley when Barclaycard took over.
6) Made a request on 23rd July 2009 in pursuant to the civil procedure rules 31.16. I also asked for confirmation that they had the original credit agreement. They ignored this.

Cannot check the statements as the statements do not go as far back as that.

2) Barclaycard now Lowells Opened in 1992

1) Default notice issued my Mercers on the 19th May 2009. Settle before day is 5th June 2009. There was a a bank holiday over this time.
2) Subject access request made originally on the 27th April 2009
3) S78 Request June 9th 2009
4) Made another subject access request to Lowells in 24 November 2011. Received a copy of the application forms attached earlier. I have never received a copy of their T&C's for this period. The front refers to Page 7 (PI)

Need to know if it makes a difference that they have lumped both together on the demand. Total is around 14k. I also wrote to Barclaycard stating that unless they supplied the information, the account would be deemed to be closed and future corresponsdence would be ignored.