Bryan Carter LLP / Lowell Portfolio

[PauloLP]

Hi All,

I'm new here and I am desperately seeking help with the above listed Solicitor/DCA.

Cut a long story short I recently received a letter from Bryan Carter LLP in respect of their client Lowell who had many years ago, purchased an old debt from an account I held with Capital One Credit Card. As this debt was purchased c. 2006, I believed it to be statute barred so sent a template to this effect. I received a further letter advising that as the last payment was made in 2010 this debt was not statute barred. After further reading of various forums I submitted a CCA request on March 21st 2015. I heard nothing further until a letter received Saturday dated 21st of May advising that as per my request, contained within was the CCA agreement and various other statement and payment related information with the end of the letter stating that they look forward to hearing my proposal for discharge of this account.

The CCA signature which I do not dispute is my own and is clearly dated from 2002 (when the account was opened) does not to my limited knowledge, detail the terms and conditions on the basis that the agreement was formed upon. At least not from my reading as the image quality is rather poor. It is literally just the Capital One livery, my name and former address details and a small signature box at the bottom of the page signed by me and by an authorised signatory on behalf of Capital One.

My questions are as this does not appear on any of my credit reports as a time span of greater than 6 years exists from original default date is this debt actually enforceable? Also if I make arrangements to pay this outstanding sum are the company able to record this information on my credit file given that it no longer exists on any report? For the sum involved I would not allow this to get to the CCJ stage as I've worked tirelessly hard at reducing my debt but this is one that until very recently I had missed. I would not like this information on my credit file as I would like to apply for a mortgage in the very near future and I am hoping that this will not prove to be a spanner in the works!

Any and all assistance would be greatly appreciated and if forum rules allow, I would happily upload a copy of the signature information for your perusal.

Thank you all in advance.

[FlamingParrot]

Re: Bryan Carter LLP / Lowell Portfolio

Welcome aboard

Cut a long story short I recently received a letter from Bryan Carter LLP in respect of their client Lowell who had many years ago, purchased an old debt from an account I held with Capital One Credit Card. As this debt was purchased c. 2006, I believed it to be statute barred so sent a template to this effect.

Could you remove your personal details and post up a copy of the letter?

I received a further letter advising that as the last payment was made in 2010 this debt was not statute barred.

According to your recollection, do you believe this statement to be true? If the debt was sold in 2006 it would have been defaulted earlier, the question is, did you keep making payments and if so, until when?

Lowell are well known for dirty tricks, one of their favourites being making up phantom payments.

The CCA signature which I do not dispute is my own and is clearly dated from 2002 (when the account was opened) does not to my limited knowledge, detail the terms and conditions on the basis that the agreement was formed upon. At least not from my reading as the image quality is rather poor. It is literally just the Capital One livery, my name and former address details and a small signature box at the bottom of the page signed by me and by an authorised signatory on behalf of Capital One.

My questions are as this does not appear on any of my credit reports as a time span of greater than 6 years exists from original default date is this debt actually enforceable?

Enforceability is not dependant on whether it appears on your credit reports or not but whether any payments were made in the last six years and, if so, whether they can show there was a properly executed agreement with all the prescribed terms to start with.

Also if I make arrangements to pay this outstanding sum are the company able to record this information on my credit file given that it no longer exists on any report? For the sum involved I would not allow this to get to the CCJ stage as I've worked tirelessly hard at reducing my debt but this is one that until very recently I had missed. I would not like this information on my credit file as I would like to apply for a mortgage in the very near future and I am hoping that this will not prove to be a spanner in the works!

No, you can only have ONE default recorded against each account, for a period of six years. Once it drops off it cannot be re-instated. However, if the debt is not yet statute barred, any repayment offer would constitute acknowledgment of the debt and reset the clock. :scared:

Any and all assistance would be greatly appreciated and if it forum rules allow, I would happily upload a copy of the signature information for your perusal.

Thank you all in advance.

Yes, the forum allows you to post up copies of redacted documents. You may want to look at this thread: http://www.legalbeagles.info/forums/...r-details-safe!)

[PauloLP]

Re: Bryan Carter LLP / Lowell Portfolio

Hi FlamingParrot,

Many thanks for your reply.

Please see below the relevant documents and I was possibly incorrect in my initial post in regards to the terms. There are various sentences that I presume are the actual terms. I can confirm that I have reviewed my bank statements for the times they state payment was made and it does prove to be true. This was March 2010 so I am aware that this would not be considered statute barred. It's good to know that whatever the outcome that this cannot be re-recorded onto my credit file so thank you for clearing this up!

Any further thoughts are welcomed as to how I should now proceed!

Many Thanks,

[FlamingParrot]

Re: Bryan Carter LLP / Lowell Portfolio

Hi FlamingParrot,

Many thanks for your reply.

Please see below the relevant documents and I was possibly incorrect in my initial post in regards to the terms. There are various sentences that I presume are the actual terms.

If that's ALL there was, there's no way that would be enforceable, since none of the prescribed terms are there. To give you an idea, this is what should be there: http://www.legislation.gov.uk/uksi/1...chedule/6/made

My guess is, they may have sent them later with the card, if at all.

I can confirm that I have reviewed my bank statements for the times they state payment was made and it does prove to be true. This was March 2010 so I am aware that this would not be considered statute barred.

OK, as long as you are satisfied you did make payments.

With regard to Carter's letter, I was more interested in seeing their original letter, i.e. whether they were threatening court action. Those guys are very trigger-happy as you may have seen.

[PauloLP]

Re: Bryan Carter LLP / Lowell Portfolio

Hi FlamingParrot,

Thank you for your further reply.

That was the entire content of the letter excluding a payment table and statement history from when the account was active and not in default.

The original letter from Bryan Carter LLP dated 26th February 2015 is your standard 'letter of claim' highlighting my failure to respond within 14 days would result in a claim being issued against me without further notice. Also highlighted were the additional costs set to be incurred should I fail to respond.

The letter provided a date by which final payment was to have been made unless I disputed the debt in which case I had to inform them as to what grounds I base my dispute on.

In your opinion and from what has been received, am I best to send a letter stating that on the grounds of what has been received that this debt although not statute barred is unenforceable due to the failure to provide proof of a properly executed CCA?

As before, many thanks for your invaluable advice so far! - Much appreciated.

[nemesis45]

Re: Bryan Carter LLP / Lowell Portfolio

What date in march exactly was that payment made and what is the date of issue on the N1 claim form please.

nem

[PauloLP]

Re: Bryan Carter LLP / Lowell Portfolio

Hi Nem,

Thank you for your response.

It was early March between the 6th - 10th as was a recurring payment from the looks of things as is displayed as a POS payment on my statement. I am out of the house at present but can provide further clarity upon my return home.

This is a letter of claim from Bryan Carter LLP and not Northampton Courts but the letter of claim is dated as 26th of February from BC LLP on their standard cream coloured letters.

Any further input both welcomed and appreciated.

[nemesis45]

Re: Bryan Carter LLP / Lowell Portfolio

Hi Paul,

All you have had is a threat template from Carter? No actual Court Document?

Carter's letter in this case is nonsense if the claim has not been actually issued prior to a date
in the period 5-10 March the debt is stat barred.

nem

[FlamingParrot]

Re: Bryan Carter LLP / Lowell Portfolio

What date in march exactly was that payment made and what is the date of issue on the N1 claim form please.

nem

There was no mention of a claim form, just a letter of claim. Knowing Carter, they DO issue proceedings, often even without sending such letters.

Hi Paul,

All you have had is a threat template from Carter? No actual Court Document?

Carter's letter in this case is nonsense if the claim has not been actually issued prior to a date
in the period 5-10 March the debt is stat barred.

nem

I have looked at PauloLP's profile because there used to be a field stating the legal system of each member, i.e. England or Scotland. I can't see that field on his profile. :noidea:

Unless he is in Scotland, this debt won't be statute barred till next year, not when payments were made in March 2010 as seen in the quote below.

Hi FlamingParrot,

Many thanks for your reply.

Please see below the relevant documents and I was possibly incorrect in my initial post in regards to the terms. There are various sentences that I presume are the actual terms. I can confirm that I have reviewed my bank statements for the times they state payment was made and it does prove to be true. This was March 2010

Looks like requesting the agreement had the desired effect this time and they didn't issue proceedings, however, should they send another letter of claim, that would have to be responded to as well.

[PauloLP]

Re: Bryan Carter LLP / Lowell Portfolio

Thanks FlamingParrot & Nem for your respective replies.

I am based in Wales so would not be able to defend on grounds of statute barred which as mentioned by Nem would be applicable under Scottish law.

I have checked the records more thoroughly and can see the last payment was actually made on February 28th 2010 according to the statement provided and I have attached a photo showing this.

FlamingParrot - In regards to the document I attached earlier, this signature sheet is all that is contained which certainly does not look anything like what a credit agreement ought to look like as per the link you kindly provided.

I will prepare further correspondence to be sent to BC LLP and upload this for a general consensus prior to my sending via recorded delivery.

Thank you once again both, really appreciated.

[PauloLP]

Re: Bryan Carter LLP / Lowell Portfolio

Hi All,

After some digging have found a rather interesting template which I believe reflects the merits of my concerns. As ever, thoughts welcomed!


Mr xxxxx
xxxxxxxx
xxxxxxxx
xxx
xxxxxxxx
25/05/15

Bryan Carter Solicitors LLP
11 De Havilland Drive
Weybridge
Surrey
KT13 0YP


Thank you for your letter dated 21st May 2015, which I have read with interest.

As you are no doubt unaware the enclosed documentation in no way complies with the consumer Credit Act 1974 (CCA) in so far as it is completely lacking any of the prescribed terms required for a credit agreement.
The prescribed terms specified in Sch 6 of Consumer Credit (Agreements) Regulations 1983 SI1553 are as follows:

* credit limit
* repayments
* rate of interest

There is no mention of any of these terms in the Capital One Application form and as such this document has no validity in law as a regulated credit agreement.

As such this is a clear breach of s61(1) of CCA

* 61.—(1) A regulated agreement is not properly executed unless
(a) a document in the prescribed form itself containing all the prescribed terms
and conforming to regulations under section 60(1) is signed in the prescribed
manner both by the debtor or hirer and by or on behalf of the creditor or owner,
and
(b) the document embodies all the terms of the agreement, other than implied terms,
and
(c) the document is, when presented or sent to the debtor or hirer for signature, in
such a state that all its terms are readily legible.

Futhermore this document is totally unenforceable in a court of law as laid out in CCA s127(3)

* 127.-(3) The court shall not make an enforcement order under section 65(1) if section
61(1)(a) (signing of agreements) was not complied with unless a document (whether
or not in the prescribed form and complying with regulations under section 60(1))
itself containing all the prescribed terms of the agreement was signed by the debtor or
hirer (whether or not in the prescribed manner).

This was also addressed in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:


* 33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

Also in the case of Wilson v First County Trust Ltd [2001] 3 All ER 229, Sir Andrew Morritt said:

* 26 The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in support of his submission that there is nothing in s 127(3) of the 1974 Act which is incompatible with convention rights. It was said, in effect, in relation to art 1 of the First Protocol, that, where there was no document signed by the debtor--or where the document signed by the debtor did not contain all the prescribed terms of the agreement--neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, the creditor had no relevant 'possessions' to the peaceful enjoyment of which it was entitled, or of which it was deprived by s 127(3) of the 1974 Act. In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid; so there is nothing to engage the rights guaranteed by art 1 of the First Protocol. Nor, on that analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent and impartial tribunal. Article 6 of the convention is not in point.

So in a nut shell the lack of prescribed terms renders this agreement unenforceable and the moneys a gift that was never intended to be repaid.

Should your client now continue with this legal action as stated in your letter, I will welcome the opportunity for a judge to look at several offences committed by Capital One under the CCA, as well as your client’s non-compliance with and total disregard for the law on this occasion.

Therefore you have 14 days from receiving this letter to contact me with your intentions to resolve this matter.

I would appreciate your due diligence in this matter.

I await your rapid response.

Mr xxxxxxx

[nemesis45]

Re: Bryan Carter LLP / Lowell Portfolio

Paul,
Being based in Wales means the Limitations Act 1980 is the same as in England, on debts arising out of simple contract it is 6 years.

(Scotland is 5 Years)


No payment or written acknowledgment of the debt in the 6 year period.

As the " recon" agreement fails imo to comply even with a CCA request, it will not I think
be acceptable in court.

Your letter covers all the points necessary.

Before sending add No part of this letter is an admission of any liability to Lowell.



nem

[PauloLP]

Re: Bryan Carter LLP / Lowell Portfolio

Hi Nem,

Sorry to trouble you and I hope Friday finds you well.

The reason for my post is that I have today received the following from BCLLP.

The letter states that a copy of the credit agreement is enclosed but there was nothing other than the letter itself contained within the envelope! A genuine error or intriguing tactic?

Thoughts welcomed on this

[FlamingParrot]

Re: Bryan Carter LLP / Lowell Portfolio

Thanks FlamingParrot & Nem for your respective replies.

I am based in Wales so would not be able to defend on grounds of statute barred which as mentioned by Nem would be applicable under Scottish law.

I have checked the records more thoroughly and can see the last payment was actually made on February 28th 2010 according to the statement provided and I have attached a photo showing this.

FlamingParrot - In regards to the document I attached earlier, this signature sheet is all that is contained which certainly does not look anything like what a credit agreement ought to look like as per the link you kindly provided.

That's not a credit agreement by any stretch of the imagination.

The reason for my post is that I have today received the following from BCLLP.

The letter states that a copy of the credit agreement is enclosed but there was nothing other than the letter itself contained within the envelope! A genuine error or intriguing tactic?

It could be a genuine oversight. I would write back saying "thanks for your letter of 4 June 2015, would you kindly re-send the agreement as it was not attached to the letter as indicated."

I am intrigued by the statement regarding your signature, if you sent the letter you posted above, it argued about the lack of terms amongst a lot of other things but not the authenticity of your signature. In fact, a signature is almost the only thing that "agreement" had! :mmph: Maybe Mr Carter mixed up your letter with someone else's, and sent that someone else the agreement instead... :noidea:

[nemesis45]

Re: Bryan Carter LLP / Lowell Portfolio

Sorry for the delay in replying Paul,

A bit of a signature page and an historic possibly extract part of a statement does not
satisfy a CCA request.

Personally I would not want to represent a claimant in court with that as evidence that
a liability subsists.

Carters daft letters are it seems just used cover up the short comings in the claim.
The query on signature is one he used quite often a few years back, which gave
birth to some " theories " of " signature lifting" from documents provided.
nem

As said the letters good to go!!