being chased by lowells....

[New_Age_Biker]

For a while I have been receiving letters from the various faces of Lowells.
they concern an old Barclaycard/ Goldfish / MSDW account
How can I ensure they do not issue an SD?
I am confident of my ground through the courts but less so in opposing an SD

Barclays were unable to provide a copy CCA, Mercers did the DN etc

NTTF

[New_Age_Biker]

Re: being chased by lowells....

Any ideas anybody?

[Hurricane Puffrose]

Re: being chased by lowells....

not sure biker hun but I have shouted for help, you havent been forgotten but there was an outage for a while last night.. sorry for the delay

[Sparkie1723]

Re: being chased by lowells....

For a while I have been receiving letters from the various faces of Lowells.
they concern an old Barclaycard/ Goldfish / MSDW account
How can I ensure they do not issue an SD?
I am confident of my ground through the courts but less so in opposing an SD

Barclays were unable to provide a copy CCA, Mercers did the DN etc

NTTF

HI New_Age_Biker,

this may be of assistance. I have just had Stat DEmands set aside served on me and one served on my partner, this can set aside a stat demand on its own...there are quite a few reasons that can set them aside

I had a lot of help of members with this and shows it can be done

Sparkie

While it is not an abuse of process to serve a demand on a company that is clearly solvent, it is an abuse of process to serve a demand where the creditor knows there to be a genuine dispute in relation to the debt or where the creditor is concurrently pursuing other proceedings in relation to the claim".

[Sparkie1723]

Re: being chased by lowells....

Some more info to read

Sparkie
How to reduce the risk of bankruptcy following a statutory demand.

• To avoid bankruptcy reduce the debt to less than £750.
• Offer to pay the debt by instalments.
• Make a reasonable offer to settle the debt.
• Apply to have the statutory demand set aside

The procedure to get a statutory demand set aside.

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy.
One method of avoiding bankruptcy is to get the statutory demand set aside.
To successfully get a statutory demand set aside one or more of the following must be satisfied:-

• The amount stated on the statutory demand is disputed.
• The person issuing the statutory demand also owes money. This is called a counterclaim.
• The person issuing the statutory demand is holding security that equals or exceeds the amount owing.
• The demand was issued in error.
• The amount owing is less than £750
• Execution has been stayed on a judgement debt.
• The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.

Creditors should generally keep in mind the courts discretion to set aside a demand for “some other reason” and the reputational and cost implications such a decision may have
Statutory Demands


When to use and when to hold back.

In the recent case of Collier v P& M.J. Wright (Holdings) Limited the Court of Appeal discussed the circumstances in which it is appropriate to issue a statutory demand, and those circumstances in which there is sufficient doubt or dispute concerning a debt to render the attempted recovery of it unsuitable for the insolvency sphere. The case provides further useful guidance for both businesses and lawyers who routinely issue statutory demands in order to circumvent the more protracted route of litigation in either the High Court or the County Court.

An ill advisedly issued statutory demand spells bad news for a business, as it can be set aside, with the successful applicant recovering hundreds or, in some cases, thousands of pounds in costs from the person or business who issued the statutory demand. One can easily envisage a scenario in which a business or person is owed a relatively small sum, for example £1,000, and issues a statutory demand. The statutory demand is set aside, and the issuer is ordered to pay more than the disputed debt in costs alone. The test for when to, and when not to, issue a statutory demand should therefore be at the forefront of litigators and/or litigants’ minds when dealing with a claim to a fairly small sum, and/or a claim to which there is at least the semblance of a Defence.

The facts of the Collier case are not particularly arresting or relevant. The facts are probably of more relevance to a discussion on the doctrine of promissory estoppel. It is the comments made by Arden LJ concerning the test to be applied when deciding whether or not to issue a statutory demand which shall be the focus of this article.

Arden LJ pointed out that under Insolvency Rule 6.5(4) a court may grant an application to set aside a statutory demand where a debt is “disputed on grounds which appear to the court to be substantial”.

Further, in paragraph 12.4 of the Practice Direction on insolvency proceedings it is said that a statutory demand should be set aside where there is a “genuine triable issue”. The burden of proof in an application to set aside a statutory demand rests firmly on the shoulders of the party making the application.

The Judge discussed the unreported case of Keller v BBR Graphic Engineers (Yorks) Limited from 14 December 2001. Mr Roger KayeQC, sitting as a Deputy Judge of the Chancery Division, had given that decision. Mr Kaye had remarked that it seemed to him to have been plainly intended that an application to set aside a statutory demand need only meet a threshold that is lower than that applicable to applications for summary judgment under Part 24 of the CPR. The rationale he gave for that analysis was that the serious consequences of a statutory demand meant that they should only be upheld in the most clear cut of circumstances.

The applicant in the Collier case seized on those comments and submitted that they meant that the applicant only had to show a “genuine triable issue”, rather than a “real prospect of success”, and asserted that such an issue was equivalent to a merely “arguable case”.

Arden LJ disagreed with the approach of Mr Kaye and referred to the recent case of Ashworth v Newnote Limited [2007] EWCA CIV C793 in which Lawrence Collins LJ said that the debate as to a difference between a “genuine triable issue” and “real prospect of success” involved only “a sterile and largely verbal question” before going on to say that there was no difference between the two.

It was said that whilst a refusal to set aside the statutory demand is a serious matter, so is the grant of summary judgment. If Mr Kaye were correct in his assertion, then on an application to set aside a statutory demand an applicant would have to show merely an arguable case. That would contradict the use of the word “substantial” in the Insolvency Rule, and the use of the word “genuine” in the Practice Direction.

Arden LJ concluded that the requirements of “substantiality” or “genuiness” would not be met simply by showing that there was an “arguable” dispute. It was said that in order for an application to set aside a statutory demand to be successful an assertion as to a dispute must be “sustainable”. In assessing whether an argument is sustainable the court should examine the evidence before it, and also make an assessment of the law on which the applicant’s case is based.

Arden LJ then discussed the evidence which should be produced. She said that the “best evidence” for the court would be “incontrovertible evidence to support the applicant’s case”. It would however, in general, “be enough if there were some evidence to support the applicant’s version of the facts, such as a witness statement or a document, although it would be open to the court to reject that evidence if it was inherently implausible or if it was contradicted, or was not supported, via contemporaneous documentation”.

A mere assertion by the applicant that something had been said or happened would not generally be enough if those words or events were in dispute and were material to the issue between the parties.

The end result was that there was no material difference on disputed factual issues between a “real prospect of success” and a “genuine triable issue”. A party which applies to set aside a statutory demand based on an implausible or inherently unlikely argument without any evidence to support it likely to find itself on the wrong end of an adverse costs order. On the other hand, a party which is considering issuing a statutory demand when there is a genuine or substantial dispute regarding the alleged debt, and evidence to support the position of the other party, should instead issue proceedings in the County Court or the High Court.

Gibson & Co
January 2008

[Angry Cat]

Re: being chased by lowells....

For a while I have been receiving letters from the various faces of Lowells.
they concern an old Barclaycard/ Goldfish / MSDW account
How can I ensure they do not issue an SD?
I am confident of my ground through the courts but less so in opposing an SD

Barclays were unable to provide a copy CCA, Mercers did the DN etc

NTTF

New_Age_Biker, your post says it all...an MSDW account.

Barclays were unable to provide a copy CCA, Mercers did the DN etc

Apologies for being simplistic.
X

[Angry Cat]

Re: being chased by lowells....

Perhaps, the LEEDS LOSERS should take heed of this:
OFT imposes requirements on 1st Credit over debt collection practices - The Office of Fair Trading

The OFT's machine is so slow. But it does eventually catch up on the firms who take liberties with the General Consumer: circumnavigation akin to pirates!

[Curlyben]

Re: being chased by lowells....

Have a read of this as well: Debt Collection Agencies Statutory Demands, a few strategies - Legal Beagles Consumer Forum

The lack of a CCA compliance is a clear reason for setting aside and SD as well as the fact that they are NOT intended for use on regulated debts of this nature.
That fact does tend to escape the DCA's..

[labman]

Re: being chased by lowells....

Hi Biker,

Sorry, I've only just read this thread. I was away nearly all yesterday, and have been battling with the site being down today, so have only just scanned your post. I haven't read much beyond the first post properly, so apologies if you've already got your answer - better to have it twice than not at all!

DCA's have been heavily criticised over recent months for issuing Statutory Demands. From what you say in your initial thread - no CCA etc... I don't see how they would even dare to go near court with it, let
alone issue a SD.

The problem is it costs not one penny to issue a SD, but has the effect on most of a hefty dose of laxative, so is fairly effective in achieving results as debtors think (usually incorrectly) they are about to be made bankrupt. To follow it through to BK itself costs a fair amount of money, so is actually cost ineffective for most companies unless dealing with a largish debt.

If, as it appears, they are using it as a threat, you should report them to the OFT. One complaint in itself will achieve little, but you never know, yours could just be the one that makes them take action against these parasites.

[New_Age_Biker]

Re: being chased by lowells....

Thanks all for your input

Their threatograms state we may issue an SD or go to court
I am happy to meet them in front of a judge but am less certain about the SD set aside process should it come to it.

So far I have ignored all their letters but thought there may be a strategy which could preclude tham from using the SD approach - hence the question

In the meanwhile I will do some more reading :tinysmile_aha_t:

[Curlyben]

Re: being chased by lowells....

You have more than enough to DESTROY any SD they may, or may not, possible, if the sun's shining on a windy day, choose to issue.

[labman]

Re: being chased by lowells....

Thanks all for your input

Their threatograms state we MAY issue an SD or go to court
I am happy to meet them in front of a judge but am less certain about the SD set aside process should it come to it.

So far I have ignored all their letters but thought there may be a strategy which could preclude tham from using the SD approach - hence the question

In the meanwhile I will do some more reading :tinysmile_aha_t:

The highlighted word speaks volumes. They could equally have put 'may not'

[New_Age_Biker]

Re: being chased by lowells....

Sounds good to me