Threat

[Jimbo]

Ok, I have a significant problem and need some help here.

I had an account with Capital One with them claiming I owed them circa £1200. They in fact owe me £1600 plus so disputed with them. They have sold on to scum bags called Lowell Financial who use other organisations from their address in Leeds as a front for collection.
I have advised them consistently in writing that the claim is in dispute legally with Capital One, as I have others. I have advised them to stop harrassing me, which they dont, I have also asked for the Cerdit agreement between me and them, which they cannot produce (is this a criminal offence?)

They have now issued me with a Statutory Demand threatening Bancruptancy Petition. What do I do now? I am minded to go to the police for harrassment because I have advised them the amount is in dispute, that I intend to take Capital One to Court, that I have asked them to stop harrassing me and still the scum persist. I am ready to explode in a nutshell.

I really need some sound advice, can they Bancrupt me for £1200? I never borrowed anything from them, Capital One owe me considerably more, and these people are basically not listening, not complying with my requests on Data Protection or any ind of law. Doing this now at this time of year is clear harrassment to my mind, especially when I've told them they are harrassing me and it should stop. I really want to hit them hard, but more than anything I want to stop them harrassing me. If anyone did this to me face to face they wouldn't still be standing, so what is their problem?

What I do basically, within the law. Any help greatly appreciated.

[Tools]

Re: Threat

Hi Jimbo Welcome to Legal Beagles.

First thing I would recommend is that you have a good read of our Debt & Harrassment Advice section of the DEBT & BAILIFF'S Forum.Also have a read of the different bank/credit card forums in your case Capital One where quite a few people have been succesful in reclaiming against them and will be able to give you some advice from personal experience.

I know there is quite a lot to read through but trust me , take your time , it prevents hiccups later.

Feel free to adapt this letter I sent to Fairhalsen Collections Limited regarding a debt Yorkshire Bank is chasing me for . Could you also let us know the names and addresses used of the other organisations Lowells are using. Strangely enough , a lot of the time diferent named collectors all use the same address(or a different PO Box number)

Change this letter to suit your needs if it is appropriate for your circumstances

Mr Jimbo
Your Address

Their Name
Their Address
(For comparison Fairhalsens is PO Box 649,Leeds ,LS1 9BF)

Client : Capital One
Client Reference :xxxxxxxxxx/xxxxxx
Debt Number : xxxxxxxxx
Amount : £xxxx.xx

Dear Sirs,
Further to your recent letter, xx/xx/2007, please be aware that this account is currently in dispute with your clients, Capital One , I would suggest you contact your client for confirmation of this.

The account in dispute consists of a debit figure made up of unlawful bank charges and subsequent administration charges levied. Until this dispute is resolved with your client, no payments will be made.

Please be aware it is a breach of the banking code, to which your client subscribes, to default the account or take enforcement action whilst it remains in dispute.

The Office of Fair Trading also issues guidance in which it states;

“putting pressure on debtors or third parties is considered to be oppressive. This includes; Ignoring disputes about whether money is owed and refusing to freeze action if the debt is in dispute.”

The lawfulness of the charges disputed is currently the subject to a test case to be ultimately determined in the High Court, involving several banks and the Office of Fair Trading. As I am sure you are aware, it is not expected that the issues will be resolved until early next year at least and I expect the debt to be held until such time as this is concluded.(remove this paragraph it the debt/charges are credit card related)

You offer no option as to acknowledge or challenge the debt in question.
Your threats of legal action ,county court judgements or a home visit from a debt collector are unacceptable. These are clearly designed to be intimidating , coercive and are in direct breach of the banking code where a debt is disputed .

I am also aware of many similar letters sent out by yourselves on behalf of your clients. As a member of LegalBeagles.info, I intend to forward the contents and details of your letters to them, with a view to submitting a mass complaint to your clients and the relevant regulatory and Government bodies.

I hope, therefore, to receive your full co-operation in this matter and request a written response to that effect.

I also suggest you forward a copy of this letter to your clients.

Yours faithfully


Mr Jimbo

If you could supply us a little more information Jimbo , ie . are the charges bank or credit card related description of charges , your progress so far in making your claim , what letters(whether it be templates from here or other forums) you have sent / received . All this info will help us help you and give you a better chance of getting the right advice for your circumstances.

[Nattie]

Re: Threat

A further point is that if they cannot provide the Credit Agreement then without it they cannot bankrupt you. I have a feeling Capital One or rather Lowell have a habit of sending threatening letters about bankruptcy.
You say that they(Capital One) owe you £1600, what steps have you taken to get the money back? Have you sent letters to Captial One and what responses have you had?

[Jimbo]

Re: Threat

Hi and thanks for both of these replies. Capital One seem to have 'sold' the disputed debt to Lowell and Lowell are using a company called Red at the same address as Lowell Financial, Red is obviously a front for Lowells collections.
Capital One have made a very poor offer in settlement to me so the final step now is Court basically, which I am going to have to do.
Having told Lowells the amount is disputed and legally disputed I thought they had to abide by leaving the whole business alone until resolved. I also believe that they are legally duty bound to provide details of a Consumer Agreement, I aso requested details of all monies paid to them so far, neither of which have been forthcoming, I believe this is a criminal offence, if not providing within a certain time frame, which Lowells haven't. I have told them endless times that their continued pursuance of this 'debt' is harrassment, which is also a criminal offence.
I need to respond to the threat to petition for Bankrupcy in the next few days and intend to start proceedings against Capital One as a seperate matter this side of Christmas. What I don't understand is that having clearly advised Lowells that they've been sold a pup, they are harrassing me for it. I've just about had enough either way and may well use monies recdovered from Capital One to bring a civil case against Lowells and sue them as well.
I will have a thorough read of details here on this site shortly but many thanks for the replies so far.

[Nattie]

Re: Threat

I have a few points.
1) Harrassment: You need to have a log of all calls from the Debt Collection Agency and any letters that you wrote asking them to only contact you by letter. If it is calls all day every day then immediately complain to the Financial Ombudsman Service.
2) CCA: 12 days the debt is unenforceable and 30 days more and it is a criminal offence.
3) The importance of the bankruptcy petition is that it can be challenged.

[thephoenix]

Re: Threat

Few things to take into consideration when using the CCA angle:

1) If you have used the credit card, a judge will see that as you authorising the use of the account that you have acknowledged exists.

2) After the periods set out in the Consumer Credit Act, the agreement would become unenforceable until such time as the CCA is produced either initially to you or alternatively to the court.

3) If it is adjudged that the account is unenforceable due to no CCA (no CCA, no agreement, no debt, no charges) it will become increasingly difficult to claim charges on an account that does not exist.

[Guest]

Re: Threat

Have they actually sent you a Statutory Demand or just threatened to do so?

A Statutory Demand is not to be taken lightly, either by the issuing party or the recipient. If there is any dispute as to the validity of the alleged debt, then their issuing a Statutory Demand can backfire on them quite spectacularly.

You need to deal with the Statutory Demand, however, I would not be too concerned about bankruptcy if you are certain that you can dispute the debt as, following the Statutory Demand, they would need to issue a petition to make you bankrupt and it is a well settled principle of law that a petition founded on a disputed debt should be dismissed by the Court. The test often applied is whether the debt is disputed in good faith and on substantial grounds. If this is the case, the petition will be dismissed as of right because the petitioner will not be a creditor with the standing to present a petition.

Such petitions are normally treated with great caution by those receiving one, but should also be treated thus by those issuing due to the serious consequences of a wrongly issued petition which may result in an injunction against you, the issuer and a sizeable order for costs.

[WendyB]

Re: Threat

I see you have already sent Prelim and LBA to Capital One, they will definitely not up their pathetic first offer, The only way to get anywhere near the full amount is to file at Court. They usually say they're going to defend then pay up quite quickly, well before it gets anywhere near a courtroom. Of all the credit card companies, I have to say that they are the easiest one to get money out of, in my opinion. Start a thread in the Capital One forum and let us know how far you've got. I've taken them on twice (for myself and OH) and settled both. It might be a bit more complicated with having a DCA on the case, but not too bad.

[WendyB]

Re: Threat

This is a copy of a letter I've used to good effect with DCAs

Dear Sirs

REFERENCE NUMBER:

I am writing with regards to the recent Letter Before Action received on xxxxxdate 2007.I consider this debt to be in dispute as your office, despite a request from myself, has not provided me with any breakdown whatsoever as to how this debt is made up. May I respectfully remind you that as the purchasers of the aforementioned debt, that it is your responsibility to provide details of the debt, and as such it was quite inappropriate of the gentleman who contacted me by telephone to suggest that I myself should contact xxxxxxxxx and ask for details of the amount outstanding.

According to yourselves , the amount outstanding on the account is £xxx, which will remain in dispute until a breakdown of charges has been received from yourselves.

As this account is in dispute, I suggest that the case is passed back to its originator, in this case xxxxx. If you are unwilling or unable to do this, then please be advised that any further communications should be in writing, not by telephone. I DO NOT give you permission to contact me by telephone, and request that my telephone number is removed from your records immediately.

I would also like to make you aware of The Office of Fair Trading Code of Guidance in which it states: putting pressure on debtors or third parties is considered to be oppressive. This includes: Ignoring disputes about whether money is owed and refusing to freeze action if the debt is in dispute. I have included copies of the Guidance for your information, with the relevant items highlighted for ease of reference.

I therefore hope to receive your full co-operation in this matter and would like to request a written response to that effect.

Yours Sincerely

[Maxwall]

Re: Threat

Few things to take into consideration when using the CCA angle:

1) If you have used the credit card, a judge will see that as you authorising the use of the account that you have acknowledged exists.

2) After the periods set out in the Consumer Credit Act, the agreement would become unenforceable until such time as the CCA is produced either initially to you or alternatively to the court.

3) If it is adjudged that the account is unenforceable due to no CCA (no CCA, no agreement, no debt, no charges) it will become increasingly difficult to claim charges on an account that does not exist.

If an account had no agreement, would they not have to pay back PPI, charges and interest?.

[thephoenix]

Re: Threat

If an account had no agreement, would they not have to pay back PPI, charges and interest?.

you have to understand that s.77-79 of Consumer Credit Act is there to protect the consumer against unscrupulous lenders/DCA that may be trying there hand at recovering a debt that from a consumer it does not belong to. Not to say that happens :rollelf: but you know what I mean.

If it is proven in court that no agreement exists and therefore becomes unenforceable at common law it would be almost impossible to convince a judge you knew nothing of the agreement in the first place. Anything you may have paid on the agreement will show you have acknowledged the debt exists.
So in my opinion, NO monies will not be returned.
If an agreement is unenforceable due to not being of the prescribed terms pursuant to s.60 of the Consumer Credit Act, that would be a different matter.

IMHO

[Mochamoos]

Re: Threat

They in fact owe me £1600 plus so disputed with them.

.

Hello Jimbo,

:blond: coming up.

The money they owe you is it from charges or over payments or...?

Everyone has offered fab advice... I just like details rudolf

[plymouthvictim]

Re: Threat

STATUTORY DEMANDS CAN BE FOUGHT SUCCESSFULLY.

I recently sent this long e-mail to Lowell Financial.

You have contacted us regarding the account with the above reference number, which you claim is owed by ourselves.

We would point out that under the Limitation Act 1980 Section 5 “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

We would also point out that the OFT say under their Debt Collection Guidance on statute barred debt that “it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period”.

The last payment of this alleged debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from us in the relevant period under Section 5 of the Limitation Act, we suggest that you are no longer able to take any court action against us to recover the alleged amount claimed.

The OFT Debt Collection Guidance states further that “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”.

We await your written confirmation that this matter is now closed and that no further contact will be made concerning the above account after that last letter.

Please supply me with All my personal data you hold including a complete list of transactions and charges (or alternatively a set of statements) relating to my account history with your organization or any you are representing. I also require a complete breakdown of each Late Payment fee and Over Limit fee charged to this account, or any similar related charges. The complete breakdown of each charge must contain the following:

Hourly rate of each member of staff involved with each administration of the fees / charges. The time each member of staff spent on the administration of the fees/charges. Details of the work carried out and completed by each member of staff involved with each administration of the fees/charges. Total cost of the paper, envelopes, ink, and postage of each automated and manually written letter relevant to the issuing of the fees/charges, and any other costs incurred in each fee/charge including other employee’s involvement, their hourly rate, time spent on the involvement, and what their involvement consisted of.

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person or any that you represent, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you or any that you represent. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

Furthermore please provide me with a copy of my contracts with you and any company you represent, and a copy of my original terms and conditions. I make this request under the Data Protection Act 1984 and 1998, and including the right of subject access under these acts.

I understand that under the Consumer Credit Act 1974 section 78, I am entitled to receive a true SIGNED copy of any credit agreements and a statement of account on request.

I understand a copy of any credit agreement along with a statement of account should be supplied within 12 working days.

I further 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 am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing. I have verbally requested that these stop, but I am still receiving calls.

I now require all further correspondence from your company to be made in writing only. I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997. If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine. Be advised that any further telephone calls from your company will be recorded.

Following recent contact with your company before I am prepared to take this matter of outstanding balance and make ANY payments I would like you to provide me with the following information.

I do not acknowledge ANY debt to your company.
I require you to supply the following documentation before I will correspond further on this matter.

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit) - your obligation also extends to providing a statement of account.

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

3. You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested. Plus take notice that this Capital One account was dealt with by way of an admin order at the County Court, which ended two years ago, and is now therefore statute barred.

Our researchers have been doing some digging into the unlawful behaviour of your company, Lowell Portfolio 1 Ltd / Lowell Financial Ltd / Red, and have discovered some interesting facts. These we now intend to bring in a group civil action in the High Court case against you. This research has included interviews with present and past employees of your companies. Take notice that a complaint has been filed with Devon and Cornwall Police.

1. That the aforementioned companies are in breach of their licence with the OFT, number Z8222569 which covers them for the tracing of consumer and commercial debtors and the collection on behalf of creditors, and the purchasing of trade debts, including rentals and instalment credit payments, from business only. Therefore, the attempted collection of consumer debt is not within your licence remit and therefore illegal.

2. That the aforementioned companies send out 'solicitors' letters when in fact they have not come from any solicitor registered with The Law Society, and details of this have been passed to The Law Society for action to be taken, which will result in severe penalties and fines being levied on Lowell Portfolio / Lowell Financial / Hamptons / Red, whatever you call yourselves.

3. That the aforementioned companies failed to satisfactory respond to consumers Section 78 (1) Consumer Credit Act 1974 requests and fail to produce genuine copies of credit agreements or the like, which is again an illegal act under the Consumer Credit Act 1974, and therefore our research and findings have been passed to the Office of Fair Trading for enforcement action to be taken against you. You agree and are aware that under law, such requests must be satisfied in full within 12 working days. In fact that is such requests are not fulfilled within 40 days, this becomes a criminal offence. A complaint has been filed with Devon and Cornwall Police log 319 of 22-02-08

4. That the aforementioned companies sent out threatening Statutory Demands that are signed by an individual claiming to be a Government Minister, when in fact that person is not. Again, this is highly illegal, and a file with the assistance of the Police is being prepared and will be sent to The Crown Prosecution Service for action to be brought against your companies. Further, the service of such Statutory Demands by 2nd class post is in breach of the rules, and therefore not enforceable in court. This is in direct breach of Administration of Justice Act 1970, Section 40 onwards.

5. That the aforementioned companies repeatedly telephone consumers chasing payments that are not owed, or are in dispute, despite being warned by the telephone regulator not to, and thus is in direct breach of Communications Act 2003, Section 127, and Human Rights Act 1990, Article 8 - Right to respect for private and family life, and Wireless Telegraphy Act 1949, misuse. All telephone calls to us have been recorded for use as evidence in the High Court, where we intend to claim for substantial damages against the aforementioned companies. A report is also being compiled and will be sent to the telephone regulator with a view to having the phone lines of the aforementioned companies cut off under The Protection from Harassment Act 1997.

I have just got off the phone with a Nigel Bevan at Lowell Financial, and he has stated that he has withdrawen the Statutory Demand, and that they have no entitlement to collect the alleged sum, and that a full letter of apology will be with me on Monday morning.

I await the letter before I stop the set aside court action I have taken, and then I will issue court proceedings against them for damages.

I'VE WON!

[plymouthvictim]

Re: Threat

I have today recieved by recorded delivery a letter from the directors of the Lowell Group, saying that they have withdrawn the SD, and have no entitlement to collect the alleged debt. To me that is an open admission that they are in the wrong.

Devon and Cornwall Police would like to hear from other people who have had dealings with Lowells. Their phone number is 08452 777444 and quote log 319 of 22-02-08.

[righty]

Re: Threat

Have they actually sent you a Statutory Demand or just threatened to do so?

A Statutory Demand is not to be taken lightly, either by the issuing party or the recipient. If there is any dispute as to the validity of the alleged debt, then their issuing a Statutory Demand can backfire on them quite spectacularly.

You need to deal with the Statutory Demand, however, I would not be too concerned about bankruptcy if you are certain that you can dispute the debt as, following the Statutory Demand, they would need to issue a petition to make you bankrupt and it is a well settled principle of law that a petition founded on a disputed debt should be dismissed by the Court. The test often applied is whether the debt is disputed in good faith and on substantial grounds. If this is the case, the petition will be dismissed as of right because the petitioner will not be a creditor with the standing to present a petition.

Such petitions are normally treated with great caution by those receiving one, but should also be treated thus by those issuing due to the serious consequences of a wrongly issued petition which may result in an injunction against you, the issuer and a sizeable order for costs.

The above is good advice (& accurate) Whilst I suspect sending an SD is intended to scare you into paying up it can, as has already been stated backfire spectacularly in the pettioner if considered vexatious could end up paying substancail costs