Lowell advice

[emmski]

Hi,

I'm hoping those of you with previous knowledge dealings of this company may be able to offer me some advice.
I opened a choice ( catalogue) account in 1999, this later became a shop direct account. All fine for nearly ten years, in 2008 I struggled with re-payments and fell into arrears. From then I paid £50 each month as it was all I could afford. I got numerous letters from shop direct and later Ndr and was charged £12 per month in charges but just carried on paying the £50. I never knew till later but they never officially defaulted me just Ap marker on my file 2008-2013.
in June 2013 they passed/sold the account to Lowell. Immediately they defaulted me. I initially carried on paying the £50 but took some advice (MSE) and requested a cca.
I would like to add at this point that I have every intention of honouring my debt, I had the goods ,I'm happy to pay. But I find the default date unfair, surely it should have been done in 2008?
In reply to my cca request lowell have send a credit agreement for one item I purchased on extended terms in 2008, for £387. It is signed but is not my original credit agreement.
My questions are what to do next? I'm looking at complaining to the fos re the default date but , in the meantime should I pay them anything? I'm worried a statutory demand will be their next move if I don't pay, but can they without the original cca? The current balance outstanding is £1953. Anybody advise what Lowell are likely to do next? The phone call and texts have started already.
Thanks in advance.

[FlamingParrot]

Re: Lowell advice

I opened a choice ( catalogue) account in 1999, this later became a shop direct account. All fine for nearly ten years, in 2008 I struggled with re-payments and fell into arrears. From then I paid £50 each month as it was all I could afford. I got numerous letters from shop direct and later Ndr and was charged £12 per month in charges but just carried on paying the £50. I never knew till later but they never officially defaulted me just Ap marker on my file 2008-2013.
in June 2013 they passed/sold the account to Lowell. Immediately they defaulted me. I initially carried on paying the £50 but took some advice (MSE) and requested a cca.
I would like to add at this point that I have every intention of honouring my debt, I had the goods ,I'm happy to pay. But I find the default date unfair, surely it should have been done in 2008?
In reply to my cca request lowell have send a credit agreement for one item I purchased on extended terms in 2008, for £387. It is signed but is not my original credit agreement.

It's not a matter of honouring your debt, Lowell would probably have paid Shop Direct 10% of the alleged outstanding value, which is likely to include heaps of charges.

As far as I know, none of those catalogue companies ever required people to sign a credit agreement before sending out the goods, and you are confirming it by saying they sent you *something* (obviously NOT a credit agreement) for ONE item you purchased in 2008. That was nearly 10 years after you opened the account, and relates just to that purchase.

Without a properly executed agreement, the debt is unenforceable. When was your last payment made? If it was in 2008, this is close to Statute Barred. :thumb:

My questions are what to do next? I'm looking at complaining to the fos re the default date but , in the meantime should I pay them anything? I'm worried a statutory demand will be their next move if I don't pay, but can they without the original cca? The current balance outstanding is £1953. Anybody advise what Lowell are likely to do next? The phone call and texts have started already.
Thanks in advance.

Lowell are, indeed, very fond of SDs, but Celestine, one of the site owners, loves to get them set aside. She's managed to set aside over 50 of them in the last six months, mostly from Lowell.

Take a look here: http://www.legalbeagles.info/forums/...ands-READ-HERE

...and here:

• http://www.legalbeagles.info/forums/...W-Legal-Lowell
• http://www.legalbeagles.info/forums/...ory-Demand-WON!!!!
• http://www.legalbeagles.info/forums/...w-SD-withdrawn
• http://www.legalbeagles.info/forums/...ory-Demand-WON!!!!!

[FlamingParrot]

Re: Lowell advice

I opened a choice ( catalogue) account in 1999, this later became a shop direct account. All fine for nearly ten years, in 2008 I struggled with re-payments and fell into arrears. From then I paid £50 each month as it was all I could afford. I got numerous letters from shop direct and later Ndr and was charged £12 per month in charges but just carried on paying the £50. I never knew till later but they never officially defaulted me just Ap marker on my file 2008-2013.
in June 2013 they passed/sold the account to Lowell. Immediately they defaulted me. I initially carried on paying the £50 but took some advice (MSE) and requested a cca.

My questions are what to do next? I'm looking at complaining to the fos re the default date

The FOS does not deal with credit defaults, nor does it deal with debt purchasers like Lowell. It's concern is with financial institutions. The ICO deals with credit defaults.

If you defaulted in 2008, this should be dropping off later this year. Lowell should appear as the new account owners but the default date should be the original date:

The ‘sale’ or assignment of debts on defaulted accounts

52
When the rights to a debt are sold to a third party, the lender has to make sure the records with the credit reference agency are accurate, up to date and adequate. If they want information about the debts to continue on the credit reference file they will need to come to an agreement with the purchaser about who is to be responsible for this.


53 If the purchaser agrees to take control of the record, the customer should be informed that the debt has been sold or assigned and to whom. The credit reference agency file should be changed to show the name of the purchaser and that the rights to t

he debt have been sold or assigned.


The purchaser should then make sure the record is kept up to date including changes to the amount still owed. The purchase should not affect how long the record is kept. It should be removed six years after the default.

---

Source: http://ico.org.uk/~/media/documents/...%20%20doc.ashx

You can complain to the ICO but you'd be expected to complain to Lowell first, so you should write to them, asking them to change the default date to 2008. Debt purchasers don't get any paperwork when they buy debts in bulk, so attach anything you may have showing you defaulted in 2008. If they don't address your complaint to your satisfaction, you can the go on to complain to the ICO. :thumb:

but , in the meantime should I pay them anything? I'm worried a statutory demand will be their next move if I don't pay, but can they without the original cca?

I wouldn't... :nono: :tinysmile_twink_t2: I have an MBNA card I've not paid since Jan 2010 as they can't find the CCA. :bounce: :bounce:

[FlamingParrot]

Re: Lowell advice

The current balance outstanding is £1953. Anybody advise what Lowell are likely to do next? The phone call and texts have started already.
Thanks in advance.

With regards to their harassment, do take a look at this thread: http://www.legalbeagles.info/forums/...om+harrassment

I forgot to say welcome to LB!

[emmski]

Re: Lowell advice

Hi,

thank you for you replies so far. I probably didn't explain my self well, but just to clarify. The debt is nowhere near statute barred, I have paid on time each month albeit a lesser amount up until September 2013 ,when I requested the cca.
in terms of the default.Shop direct never defaulted me despite me falling behind with payments in 2008. My credit report was marked with AP markers. It was Lowell who defaulted me in June 2013 immediately after they bought the account. So now I'm looking at 6 years before this goes off although because of how late it is I'm actually looking a at a trashed credit file for 11 years.
Are you saying I can't complain about the default date to the fos? Does it have to be the ico instead?
What would be your reply to Lowell? they've written to be me again today demanding payment. They seem to think they've fulfilled their obligations by sending me the credit agreement they did but it's not my cca. I'm struggling to know what to say to them. If the default stays,my credit file is shafted, can I use their lack of a cca as leverage for an amendment to the default date? Or should I be looking to get the debt written off/ settled for a low amount and then accept the default will be there for the next 5.5 years?
Finally can anyone confirm that lowell can't /won't send a statutory demand if they haven't got the original cca?
Sorry for all the questions but I really don't know what approach to take.

thank you in advance.

[FlamingParrot]

Re: Lowell advice

thank you for you replies so far. I probably didn't explain my self well, but just to clarify. The debt is nowhere near statute barred, I have paid on time each month albeit a lesser amount up until September 2013 ,when I requested the cca.

I do understand, statute barred and default dates are totally separate issues precisely for that reason.

in terms of the default.Shop direct never defaulted me despite me falling behind with payments in 2008. My credit report was marked with AP markers. It was Lowell who defaulted me in June 2013 immediately after they bought the account. So now I'm looking at 6 years before this goes off although because of how late it is I'm actually looking a at a trashed credit file for 11 years.
Are you saying I can't complain about the default date to the fos? Does it have to be the ico instead?

Yes, the ICO deals with credit defaults. Even if they didn't officially default you, by failing to meet your contractual payments, I'd say there would have been an indication of a default, as per the guidance notes: http://ico.org.uk/~/media/documents/...%20%20doc.ashx

The ICO would expect you to complain to the offending company before complaining to them.

If the default stays,my credit file is shafted, can I use their lack of a cca as leverage for an amendment to the default date?

Sadly this isn't the case, on Mcguffick v RBS it was established that reporting to the CRAs does no constitute enforcement, however, you should still be able to argue about the default date, but not with regards to non-compliance with a CCA request, simply because it should reflect your conduct with the account, i.e. you broke the agreement in 2008, not in 2013!

The meaning of enforcement

The Act does not define what constitutes "enforcement" and therefore does not define what actions a creditor may not undertake during a period when the agreement is unenforceable. The debtor argued that any coercive action to compel or secure performance of the removed obligation or liability of the debtor to make repayment amounted to "enforcement" including any reporting to CRAs.

Mr Justice Flaux concluded that not only did reporting to the various CRAs not amount to enforcement, but that a number of other activities did not constitute enforcement either, such as:

• reporting to CRAs without also telling them that the agreement is currently unenforceable
• disseminating or threatening to disseminate the debtor's personal data in respect of the agreement to any third party
• demanding payment from the debtor
• issuing a default notice to the debtor
• threatening legal action
• instructing a third party to demand payment or otherwise to seek to procure payment
• bringing proceedings.

Consequently, the injunctive relief sought on behalf of the debtor was refused for the above (and other) reasons.

[FlamingParrot]

Re: Lowell advice

What would be your reply to Lowell? they've written to be me again today demanding payment. They seem to think they've fulfilled their obligations by sending me the credit agreement they did but it's not my cca. I'm struggling to know what to say to them.

How about this:

Dear Sirs

ACCOUNT NO: XXXXXX
Your attention is drawn to the fact that this account is subject to a serious dispute. On XX/XX/XX, I requested that you supply me with a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 77-79. To date, you have failed to comply with my request. Without production of the said agreement, I am unable to assess if I am indeed liable for any alleged debt to Shop Direct, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

In line with recent OFT Guidance surrounding Unenforceability, I presume you're aware that the OFT has stipulated the following;

Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:

• a copy of their agreement
• copies of some of the other documents mentioned in their agreement
• a statement of account.

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

• make the debtor pay the debt before they're supposed to
• get a court judgment against the debtor

As this account is clearly unenforceable, I expect you to write back and confirm that no further action will be taken and that the account is now closed and no further correspondence will take place.

Yours faithfully,

Or should I be looking to get the debt written off/ settled for a low amount and then accept the default will be there for the next 5.5 years?

It's unlikely to be written off as such, however, in some cases, even Lowell have agreed to close the account. :grin: Otherwise you can just sit it out till it becomes SBd. :thumb:

Finally can anyone confirm that lowell can't /won't send a statutory demand if they haven't got the original cca?

I don't think anyone can confirm that they won't send a SD, what I CAN confirm is that, were they to issue one, Celestine would fight it till the end!

She's 'only' set aside 60 something SDs in the past few months, most of them from Lowell! :bounce:

[emmski]

Re: Lowell advice

Thank so much for your replies and information. I'm going to send the letter you suggest and then a separate one to start the ball rolling on the default date complaint.

[CleverClogs]

Re: Lowell advice

I have an MBNA card I've not paid since Jan 2010 as they can't find the CCA. :bounce: :bounce:

Don't you feel any moral responsibility to repay the money you borrowed from the Mafia Bank of North America?

[CleverClogs]

Re: Lowell advice

What would be your reply to Lowell?

Under the circumstances you describe, I doubt that my personal response would differ significantly from that in the celebrated case of Arkell v Pressdram. (link) :grin:

they've written to be me again today demanding payment.

It's more likely that their computer has done that.

They seem to think they've fulfilled their obligations by sending me the credit agreement they did but it's not my cca.

Then they're idiots. Until and unless they do comply with your s78(1) request, s78(6) bars them from obtaining judgement against you.

I'm struggling to know what to say to them.

One can think of several things, most of which are unpleasant and some of which would be anatomically improbable. msl:

If the default stays,my credit file is shafted, can I use their lack of a cca as leverage for an amendment to the default date? Or should I be looking to get the debt written off/ settled for a low amount and then accept the default will be there for the next 5.5 years?

You might try, but I doubt it would work; they may be idiots, but they're also greedy idiots.

Finally can anyone confirm that lowell can't /won't send a statutory demand if they haven't got the original cca?

No - they certainly can send a Statutory Demand with or without any proof of the alleged debt - there were two cases dealt with through LB last year of a spiv landlord sending out Statutory Demands to people who owed him nothing whatever!

Those cases were easily set aside and, if Bowells try sending an SD to you without having complied with your s78(1) request, it should not be too difficult for Celestine to get it set aside too, with Bowells being ordered to pay costs yet again.