I WON!!!! Served with a statuory demand by BW Legal/Lowell

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

I can't remember when the card was taken out but must have been around 2005 - originally it was a sky credit card but then changed to BC.

A CCA was issued in 2009 but never responded to correctly - all I have ever received was copies of terms and conditions, they have never sent a copy of my agreement or application. The statements received today are the only thing they have ever sent with my account number and name on it and even then its only 6 months worth. They didn't send an opening statement or a DN nor a NOA.

The debt was originally included in the DMP but when BC didn't respond to the CCA request I told payplan to cease paying them. This was in early 2009 and I have been waiting ever since for the CCA request to be met

Why does the statements make things difficult - the six months of statements arrived today - does that have any significance? They are just for a random 6 months, from March 2009 to August, they show various interest charges and late fee and over limit fee charges which was received today, 3 days before the set aside hearing.

Lowell have gone straight for bankruptcy, and appears to be using the SD as a tool designed to scare in breach of OFT guidelines, rather than for its correct use. Absolutely -I intend to press this fact to the max and also remind the judge that the court details on the stat demand was the wrong company Sorry, this does not make sense. and I feel this demonstrates the company’s total disregard of following correct procedures as they must have issued stat demands in this geographical area and therefore aware this information was incorrect.

What I meant was that I feel Lowell's/BW have gone straight to a stat demand without trying any other option first, such as a ccj. I also feel that they should have taken more care with the information placed on the stat demand as it listed the wrong court in respect of which court I needed to apply to in respect of the set aside. When I dropped off the set aside papers I mentioned this to the court official and they said that the company should know better as they have issued many stat demands and bankruptcy petitions at the court, so they are well aware which court should be stated and the court stated that I needed to contact ret the stat demand was incorrect. I feel they have completely disregarded the OFT guidelines re debt collection and the use of stat demands being a last resort and not the first. I want to know why they didn't try for a CCJ first instead of issuing a stat demand, as OFT debt collection guidelines recommend.

Re repayment - | looked at what I am repaying via my DMP and worked out what the contribution would be if included in the plan.

[labman]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

I can't remember when the card was taken out but must have been around 2005 - originally it was a sky credit card but then changed to BC. This may possibly make it convenient for them not to find the agreement, even if they could. Many agreements (not all) pre April 2007 were unenforceable at law.

A CCA was issued in 2009 but never responded to correctly - all I have ever received was copies of terms and conditions, they have never sent a copy of my agreement or application.As long as the reconstituted one was accurate, and had the relevant T&C's from when you took it out, they have complied with a s78 request. The statements received today are the only thing they have ever sent with my account number and name on it and even then its only 6 months worth. They didn't send an opening statement or a DN nor a NOA. Did you ever send a SAR? The lack of a DN is relevant, though often overlooked now. The NOA would mean they have to prove ownership of the debt. You need to make a real point of this. Without knowing they owned it, why would you pay them money?

The debt was originally included in the DMP but when BC didn't respond to the CCA request I told payplan to cease paying them. This was in early 2009 and I have been waiting ever since for the CCA request to be met I assume you wrote a letter formally placing the account in dispute as well?

Why does the statements make things difficult - the six months of statements arrived today - does that have any significance? They are just for a random 6 months, from March 2009 to August, they show various interest charges and late fee and over limit fee charges which was received today, 3 days before the set aside hearing. If there had been any question about the debt existing, or there having been an agreement, statements showing you've paid it are a clear sign the debt existed. Although they have not complied with the s78 request, and I know what the law states about original agreements etc... it has been known for this to be overlooked because there was clear evidence of the debt having existed, and payments towards it. It can thus make what should be absolutely critical, less significant.

Lowell have gone straight for bankruptcy, and appears to be using the SD as a tool designed to scare in breach of OFT guidelines, rather than for its correct use. Absolutely -I intend to press this fact to the max and also remind the judge that the court details on the stat demand was the wrong company Sorry, this does not make sense. and I feel this demonstrates the company’s total disregard of following correct procedures as they must have issued stat demands in this geographical area and therefore aware this information was incorrect.

What I meant was that I feel Lowell's/BW have gone straight to a stat demand without trying any other option first, such as a ccj. I also feel that they should have taken more care with the information placed on the stat demand as it listed the wrong court in respect of which court I needed to apply to in respect of the set aside. When I dropped off the set aside papers I mentioned this to the court official and they said that the company should know better as they have issued many stat demands and bankruptcy petitions at the court, so they are well aware which court should be stated and the court stated that I needed to contact ret the stat demand was incorrect. I feel they have completely disregarded the OFT guidelines re debt collection and the use of stat demands being a last resort and not the first. I want to know why they didn't try for a CCJ first instead of issuing a stat demand, as OFT debt collection guidelines recommend. That is fair comment now you've explained it, thank you. Sadly the OFT Guidelines are just that, Guidelines, not law, but won't harm to mention them. I would certainly have thought a CCJ or CO should have been considered prior to BK. Do you own your own home?

Re repayment - | looked at what I am repaying via my DMP and worked out what the contribution would be if included in the plan. I assume it was done pro-rata. It would not harm to have an up to date I&E to hand round (x3) at the court. Google NEDCAB or StepChange (formally CCCS) - they both have good I&E's you could complete. This would ensure everything shown is offered pro rata.

Make sure now that you learn all relevant legislation relating to each point so that points of law can be discussed as far as you can. Still acouple of questions outstanding to which it would be useful to have answers.

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Thank you so much for all your amazing help and for generously giving up so much of your time to help me. I am exemely grateful and can't thank you enough.

I hope I've covered all your questions but if there is anything else you want or need to know then please just ask.

In respect of my CCA request in 2009 all i have ever received is a photo copy of t&c. It didn't even have an account number on it. I have never been sent anything in respect of a application form or agreement - not even a blank one. Surely the lack of compliance over the past 4 years must prove that they don't have the required info. BW wrote to me stating they had requested the info for CCA but they haven't sent anything but a random 6 months worth of statements with loads of £12 charges on them. Does this mean I could argue that as BC have failed to provide this info then the debt is not enforceable?
The account was always a BC account its just that sky had their logo on it. It converted to a normal BC but I can't remember when

Yes to placing the account in dispute, i did this in 2009 and sent BC several letters stating why I was disputing the debt (copies were included in my set aside application) I also included a copy of the dispute letter I sent to another dca (calders)

yes to owning own home but in negative equity so if they forced a sale they wouldn't gain any benefit from it

[pt2537]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

quick word on section 78,

The documents must be sent "together with" a statement signed by or on behalf of the creditor showing the state of the account as defined in s78(1).

The words together with cannot be construed in any other way than "at the same time"

if not together with, then not compliant either

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

I've jut realised that i've screwed up and I really need some urgent help please as I'm not sure how this affects things for today's set aside hearing and I'm in an absolute panic. My hearing is at 2pm today

This account was never a sky card but a normal barclaycard. I had a sudden memory moment and realised that i had confused the two.

I have now found the original paperwork regarding the dispute to Barclaycard and I had i took the account in April 2004. They sent me a letter on 26 March 2009 stating that they had met the CCA requirements by

Sending a copy of your originl BC agreement at the time you opened the account.
What my balance was
What the credit limit was
Next miniumum payment
and state that the T&C will will be sent under a seperate cover.

However what they atually sent was a photocopy of T&C which is headed as Barclarycard Conditions - credit agreement regulated by the CCA 1974 but the application form/credit agreement was never attached to the letter on the T&C (which do not give a date on them, so I have no idea when these T&C were actually in force and are relevant to the time I tok out the card. There is a blank cancellation box on the bottom of one of the T&C pages, but there are details in there, no accoutn number, name etc. The T&C make no reference to me, my name isn't on them anywhere, nor is there a account number, credit limit - they are just T&C's and I can't believe that they think that consitutes a credit agreement

In reponse to their letter I sent a further letter on 31 March 2009 stating that they defaulted on the CCA request 21 March 2009 and that i still required a copy of the credit agreement as there was not one included in the paperwork they sent me. The acutal phrase I use was

"My request remains outstanding, the supplied documentation does not consitute a true copy of a cedit agreement (as no credit agreement was enclosed) and that which you did send doesn't even contain all the prescribed terms and is not properly excuted.

I have a letter that i sent to them that informed them that they also had not sent a default notice to me.

A further letter from BC was sent to me on 30 September stating that as far as they were concernd that they were "satisifed that the documents already provided to me have discharged out obligations under the CCA act and are not obligation to provide any further information to me in this regard." The T&C's included wg

In October 2009I received a letter from calders which claimed they were authorised to act on BC's behalf to collect the alleged debt. I sent them back as Dsipute letter and they sent the account back to BC.

In August 2010 they sent yet another copy of terms and conditions, which are undated and totally different to the ones previously sent! They also say that they were satisifed that the documents altready provided to me have discharged out obligations under the CCA act and are not obligation to provide any further information to me in this regard.

This was thr last I heard from them until Lowwlls joined in.

I've never had a defalut notice, nor a NOA.

My argument today is basically BC never complied (not have lowells to that matter) met the required obligations under the CCA request and therfore the enforceability of this debt is in question as the required dcumentation has never been sent to me

I have not receivved a default notice of asginment and therefore ask if the clamiant has the authority to request payment

That the stat demand listed an incorrect court therefore has failed to to comply with the insolvency rules

Lowells are abusing their power and not following OFT guidelines in respect of debt collection. Lowells should have explored alternative procedures 9suchbas applying for a CCJ) before resorting to insolvency as a first choice.

That i respectful ask the judge to consider settig the stat demand aside and award costs against the claimant as the applcation of a stat demand was uncessary and has caused me time and money to defend - i.e cost of attending court twice (to drop off paperwork and attend the hearing) Time off work for hearing, photocoping and time spent researching my defence and preaprign for the hearing.

If the courts agree with me and do dismiss the stat demnd and entertain the request of costs what costs would be reasonable to ask for?

Now considering the other side of the coin, what hapens if the judge does not dismiss the stat demand - what should I do and what is the best way forward?

Thank you so much, I really appreciate your advice, support and wisdom - thank you very much for helping me.

[Kafka]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

If the courts agree with me and do dismiss the stat demnd and entertain the request of costs what costs would be reasonable to ask for?

At the end of the hearing after judgment, you can raise this is the SD is dismissed. You should prepare a quick list in date order of time spent dealing with the SD, ie hours per day to the nearest 15 mind, including the hearing, with what the work was. That will give you a total of maybe 10/20 hrs and it doesn't have to be precise, just sufficient to show the judge as a serious estimate. There is an hourly rate you can claim this at and it used to be £9 something (hope someone can help) so you multiply that by the hours. Add on any additional costs you have too.

[Kafka]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

fuzzy

I have sent you a PM if you want to call briefly re this, regarding court dealings

[Kafka]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Bear in mind that SDs are a very unprofessional method and courts are wise to the antics of firms like Lowell using them unnecessarily. This one area of claim against creditors where - in my experience - the courts are often sympathetic to the claimants and give the claimants a harder time.

in court always refer to the judge as Sir or Ma'am and only speak to them, never to the other side. You will be given the chance to speak and make sure that all your points are put on the table.

Good luck with it.

[Kafka]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

I've just had a long chat with Fuzzy and I think that's helped to clarify the issues and approach.

Hearing is scheduled for 2:00 and we now await the feedback. Fingers and legs crossed.

[Celestine]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Well done Kafka xxx

[Kafka]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

there's some per-hearing hassle and she's been asked if she accepts the SD, which she rejected. They seem to be trying to avoid having the hearing.

[ODC]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Of course the Leeds losers want to avoid a hearing. Their bluff has been called

[Kafka]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

They have asked for an adjournment on the grounds that they haven't had all the paperwork from the OC and seemed surprised when Fuzzy refused. they're now awaiting a hearing for the court to decide whether to grant the adj. There are health issues here too and these will figure in the opposition to the adj. being granted.

If anyone has any quick advice to pass on I can do this, but time is short...

[TUTTSI]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Just now waiting for Fuzzy to report back fingers crossed - all ok xxxx

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Can't believe it - the solicitor asked me to agree to an adjournment! She said Lowells haven't located the required paperwork so they want another 2 months!! I said no chance, BC have had since 2009 to find the paperwork so I think it's unfair to requested an adjournment. They aid that was BC and this is Lowells so it's irrelevant. I then replied that as they have allegedly brought the debt then they shod have all the paperwork that goes with it so if they haven't managed to find it by now its extremely unlikely they will ever find it.
Solicitor said she is pressing ahead with adjournment so will have to battle it out in front of the judge. Any tips are exetemely welcome!!! Getting Internet is difficult but I'll try and stay in touch