Lowell have no documentation but still persist

[highwire]

Hi all,

I had an old student credit card (not statute barred) assigned to Lowell and I requested documentation a few months back. Today they wrote to me to say they have been unable to retrieve documentation from the original creditor and that I am able to go to the Financial Ombudsman if I wish.

Then they go on to ask me to contact them to make payment arrangements..... ermmm if they have no documentation whatsoever, aren't they obliged to close the account?

Shall I just ignore them from now on or go to the FOS? I'm worried if I go to the FOS they might actually retrieve documents from Lloyds themselves and royally screw me over....

[FlamingParrot]

Re: Lowell have no documentation but still persist

The FOS doesn't usually get involved in enforceability arguments. When you say you requested documents, was it a CCA request you sent? The one with the £1 fee?

Any idea when you took out the card?

[highwire]

Re: Lowell have no documentation but still persist

The FOS doesn't usually get involved in enforceability arguments. When you say you requested documents, was it a CCA request you sent? The one with the £1 fee?

Any idea when you took out the card?

Thanks for the reply, that's what I was thinking re the FOS. It wasn't a CCA request exactly as I didn't send them the £1 fee, but I requested the agreement, default date, default notice, statement of account. It's been about 10 weeks and they say Lloyds didn't respond to them. Is it worth sending a formal CCA request with the £1 fee? I've read that if they don't respond to that then the agreement becomes unenforceable if it comes to court. Any truth in this?

The card would have been taken out around 2010-11 and last paid about 18 months ago. It was a student card linked to a student account. What's strange is that there has never been a record of this card on my credit file at all, even before I defaulted on it. Lowell also quote an original account number for the card that is completely different. The balance has been quoted differently between their letters as well, the first said it was about £1200, now they're saying it's about £800 (not with discounts or anything).

Do you reckon they will have to fold with this one? Lloyds obviously either can't find the agreement or can't be bothered to send it, so presumably without it Lowell can't continue harassing me?

[FlamingParrot]

Re: Lowell have no documentation but still persist

Thanks for the reply, that's what I was thinking re the FOS. It wasn't a CCA request exactly as I didn't send them the £1 fee, but I requested the agreement, default date, default notice, statement of account. It's been about 10 weeks and they say Lloyds didn't respond to them. Is it worth sending a formal CCA request with the £1 fee? I've read that if they don't respond to that then the agreement becomes unenforceable if it comes to court. Any truth in this?

Yes, definitely worth sending the proper request with £1. It is true that the agreement is unenforceable but only for as long as they are in default of your request, if they manage to produce the documents then they have to be evaluated on their own merits.

The card would have been taken out around 2010-11 and last paid about 18 months ago. It was a student card linked to a student account. What's strange is that there has never been a record of this card on my credit file at all, even before I defaulted on it. Lowell also quote an original account number for the card that is completely different. The balance has been quoted differently between their letters as well, the first said it was about £1200, now they're saying it's about £800 (not with discounts or anything).

Do you reckon they will have to fold with this one? Lloyds obviously either can't find the agreement or can't be bothered to send it, so presumably without it Lowell can't continue harassing me?

Being such a recent card it could well be easier to find than if it was an old one. Send the CCA request and see what happens, if the contact you whilst they are in default of your request you can just say the account is in dispute because they haven't complied. :thumb:

[nemesis45]

Re: Lowell have no documentation but still persist

Who was the card issued by originally.
Some student loan accounts were only reported to one of the 3 main agencies, some not at all.
CCA request to Lowell certainly £1 fee. (use a cheque or postal order endorsed "for statutory fee only".

The FOS wont take this on but the FCA would be interested in a " report" regarding Lowell's conduct in pursuing a debt without having any evidence to prove liability or even that debt ever existed.

The FCA acts in the same manner not acting on individual matters but it does take all information
reported very seriously and if sufficient information about a particular company is forthcoming it will
take action.
My personal feeling would be to tell Lowell to produce the CCA within the next 7 days failure to do
so you will consider the matter closed and you will report the matter to the FCA.

nem

[jon1965]

Re: Lowell have no documentation but still persist

If they can not find the documents they are not obliged to close the account but they can not enforce it with a CCJ. They can do anything up to and including issuing a claim , so they can call you, write to you and generally be a pain in the ass although most of those scenarios can be dealt with.

[highwire]

Re: Lowell have no documentation but still persist

I think I'll put them to task with the formal CCA request. Then according to the FCA, they are not allowed to contact me as the account will be in formal dispute. Until the dispute is resolved they can't do jack.

[jon1965]

Re: Lowell have no documentation but still persist

Hi Highwire
I think you are mistaken , if they do not comply with your CCA request they can and indeed must contact you, they are obliged to keep you up to date with progress of hunting down the CCA.
This is from CONC 13.1.6 Failure to comply

(1) Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.
(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.
(3) In particular, a firm should not in such cases either threaten court action or other enforcement of the debt or imply that the debt is enforceable when it is not.
(4) The firm should, in any communication or request for payment in such cases, make clear to the customer that although the debt remains outstanding it is unenforceable.
(5) In the judgment of McGuffick -v- The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm) Flaux J held in a case under section 77 of the CCA that passing details of a debt to a credit reference agency and related activities do not constitute enforcement under the CCA. He also held that steps taken with a view to enforcement, including demanding payment from a claimant, issuing a default notice, threatening legal action and the actual bringing of proceedings, are not themselves 'enforcement' under the CCA. On the other hand he confirmed that the actions listed under sections 76(1) and 87(1) of the CCA did amount to enforcement notwithstanding that some of the actions 'less obviously' amounted to enforcement. These actions are demanding earlier payment, recovering possession of goods or land, treating any right conferred on the debtor by the agreement as terminated, restricted or deferred, enforcing any security and terminating the agreement.
(6) While Flaux J agreed with the decision of HHJ Simon Brown QC (sitting as a Deputy High Court Judge) in Tesco Personal Finance v Rankine [2009] C.C.L.R. 3 that commencing proceedings was not enforcement, but a step taken with a view to enforcement, both he and HHJ Simon Brown appear to have been drawing a distinction between commencing proceedings and entering judgment in those proceedings.
(7) This guidance deals only with the question of whether an agreement is unenforceable in relation to sections 77, 78 and 79 of the CCA. A lender's rights to enforce an agreement may be restricted for a variety of reasons, by the Act, by or under the CCA and by virtue of the general law.
(8) However, where a firm is aware that an agreement is unenforceable because of non-compliance with an information request under section 77, 78 or 79 of theCCA, a firm should make it clear when communicating to a customer about a debt that the debt is in fact unenforceable. Failure to do so, in that case, would in theFCA's view unfairly mislead the customer by omission. Any communication that implies expressly or otherwise that a debt is enforceable when it is known that it is not, would be misleading. One way to avoid this would be for the firm to explain to the customer the full meaning of 'unenforceable'.

I am not saying that it is not a good idea to send the CCA request I am just trying to manage your expectations

[nemesis45]

Re: Lowell have no documentation but still persist

I think I'll put them to task with the formal CCA request. Then according to the FCA, they are not allowed to contact me as the account will be in formal dispute. Until the dispute is resolved they can't do jack.

Yes do the proper CCA request, there is no guarantee that an agreement cannot/will not be found at some point, but once you have a reply to the " formal " CCA request and if it is " negative" there are ways to get a desirable out come.
Don't be too troubled with " over complicating " the situation.

CCA request £1.00 fee and we can go from there.

nem

[jon1965]

Re: Lowell have no documentation but still persist

Just mange your expectations

[FlamingParrot]

Re: Lowell have no documentation but still persist

I also believe in providing as much information as possible and quoting the relevant legislation. If the OP finds it complicated, they can always ask, that's precisely what we do here, discuss things and answer questions. :thumb:

[FlamingParrot]

Re: Lowell have no documentation but still persist

If I went to a website to post questions about my own issues, I'd certainly want to know where they get their ideas from rather than just have someone tell me what to do without explaining the reasoning or legislation behind it. To their credit, the sites I was previously on all made a point of telling you what the legal background was and had sections dedicated to quoting legislation, case law, etc. that were often linked to where you could go check. It was useful to develop a full understanding of the whole picture rather than just having someone there telling you what to do or not to do.

Knowledge is Power! :grin: :grin: :grin:

[highwire]

Re: Lowell have no documentation but still persist

**UPDATE**

Today I received a letter from Lowell..... they state they are unable to retrieve any documentation relating to this account from the original creditor and as such have closed the account with no further action!!!
:whoo::whoo::whoo:
One thing, however, is that they are unwilling to remove the default as requested as they believe it is a true reflection of the account...?? Errmm do I have any grounds to dispute this now they have no proof relating to the account whatsoever?

[jon1965]

Re: Lowell have no documentation but still persist

I would say no unless you can prove the default is wrong. No paperwork just means they can not enforce

[FlamingParrot]

Re: Lowell have no documentation but still persist

Brilliant news about closing the account! :high5: :high5: Goes to show it pays to challenge them before they issue a claim! :grin:

Sadly I have to agree with Jon on this one, defaults are only removed if they were recorded in error. There's been a case where it was established a default should be removed if the account was unenforceable but in that case a court had ruled the case as unenforceable.