Lowell - Statute Barred and Default Date

[kidney69uk]

Hi all, new here

Best of starting with a bit of history behind my issue. Basically I broke up with my partner in mid 2008 and a few months later I was made redundant meaning I fell behind with all my payments of various CC's/Overdrafts/Loans. By the time I was back in full time employment things were very much out of control so me being me, I decided to bury my head in the sand and 'go off the grid' so to speak. Fast forward to today and things are much better, I am finally confident to go on the electoral role, have savings and my bank seem to want to know me again and are offering credit cards etc (not making that mistake again!).

All my previous debts are now statute barred (I've not made a payment on any since 2008). One keeps cropping up though and this is a debt sold to Lowell (originally from HFC bank) for £300. The credit was given for a PC in curry's in January 2005. They have been sending letters to my mums address (don't know how they got that) for years now even though my mum send them various letters telling them I didn't live there!!. They have finally caught up with me at my current address I share with my GF. I would of just left them to send the standard cycle of letters but I get enough junk mail as it is. Checked everything out and felt confident to send the standard SB letter a few weeks ago. Their reply (knew they wouldn't drop it) was this:

"We confirm that your account remains legally enforceable by us and is not statute barred under the limitation act 1980 as suggested. This is because your debt did not become fully due and payable until HFC bank issued a default notice which you did not comply with. According to information provided by HFC bank the default date was 30/11/11 and therefore we consider that the debt is enforceable for 6 years after this date. Please be advised that we have placed your account on hold while we request a copy of statements from your original creditor"

I haven't checked my latest credit file just yet but i'm 100% certain no payments have been made (I can prove this from bank statements). I have a copy of my credit report from 2010 and it says the account was made 'Delinquent' in March 2009. The account must have finally been defaulted in November 2011 and sold to Lowell (have seen others on here with a similar date).

Haven't kept many letters from Lowell as thought the issue had gone away. Funnily enough I do still have the original credit agreement for this debt. I did write to HFC in January 2009 as I had PPI on this debt, they never replied. In my terms and conditions of the original credit agreement it says that they 'may' take action 21 days after a missed payment. Would this be the 'cause of action' ??? My credit report from this time also shows when the payments stopped so I have that as evidence.

So all in all;

• Credit agreement started in Jan 2005
• Payments stopped in July 2008, HFC 'could' of taken action in August 2009
• Account made 'delinquent' in March 2009 and is 6 years clear.
• Either Lowell or HFC added the default in November 2011
• No payments made since July 2008, this can be proved from bank statements.
• I've made no contact about the debt since the standard SB letter.
• I never received a default notice in 2011 from HFC or Lowell.
• If Lowell was sure this wasn't SB why are they asking for statements from the creditor?

My question is where do I go from here? Having all the evidence should I inform them of this or wait until they get (or make up) copies of statements? Also would the cause of action be first non payment +21 days as my T&C's state? Surely it cannot be the date Lowell are quoting as HFC had 3 years to do this?? Also what credit agency should I check my report with? Heard Noddle is free?

Many Thanks in advance and sorry for the long post!!! Lowell just get my goat :tinysmile_grin_t:

[kidney69uk]

Re: Lowell - Statute Barred and Default Date

Judging by the lack of replies I must have bored everyone to death with the length of my post

Had an update, the statement of accounts have now been sent through and Lowell have just proved that I haven't made a payment since Jun 2008.

[FlamingParrot]

Re: Lowell - Statute Barred and Default Date

Hi and welcome aboard.

This is a rather big site and posts sometimes get missed. For future reference, if there's no reply within a day or two, it's a good idea to bump up the thread as you did just now, otherwise it no longer shows up amongst the new posts that need replying to.

"We confirm that your account remains legally enforceable by us and is not statute barred under the limitation act 1980 as suggested. This is because your debt did not become fully due and payable until HFC bank issued a default notice which you did not comply with. According to information provided by HFC bank the default date was 30/11/11 and therefore we consider that the debt is enforceable for 6 years after this date. Please be advised that we have placed your account on hold while we request a copy of statements from your original creditor"

They can consider whatever they want, it one of their numerous tricks, :mad2: :mad2: :mad2: to argue that the default date on our credit file (which is the only date they could refer to as they wouldn't have a copy of the default notice) is when the clock starts to run. It ISN'T! :nono: In many cases Lowell themselves 'update' the date on file to a much later date, which is not lawful either.

I haven't checked my latest credit file just yet but i'm 100% certain no payments have been made (I can prove this from bank statements). I have a copy of my credit report from 2010 and it says the account was made 'Delinquent' in March 2009. The account must have finally been defaulted in November 2011 and sold to Lowell (have seen others on here with a similar date).

Haven't kept many letters from Lowell as thought the issue had gone away. Funnily enough I do still have the original credit agreement for this debt. I did write to HFC in January 2009 as I had PPI on this debt, they never replied. In my terms and conditions of the original credit agreement it says that they 'may' take action 21 days after a missed payment. Would this be the 'cause of action' ??? My credit report from this time also shows when the payments stopped so I have that as evidence.

So all in all;

• Credit agreement started in Jan 2005
• Payments stopped in July 2008, HFC 'could' of taken action in August 2009
• Account made 'delinquent' in March 2009 and is 6 years clear.
• Either Lowell or HFC added the default in November 2011
• No payments made since July 2008, this can be proved from bank statements.

It all indicates it would be SBd. :whoo:

I've made no contact about the debt since the standard SB letter.

• I never received a default notice in 2011 from HFC or Lowell.

The default notice should have been issued in 2008/09 when you stopped paying, by HFC, not Lowell, the DN should be issued by the original creditor before they pass it on to a DCA. There shouldn't have been a fresh DN in 2011 and if I was you I'd challenge that date on your credit file and ask them to amend the record so the default drops off as it should rather than remaining in place till 2017!

If Lowell was sure this wasn't SB why are they asking for statements from the creditor?

Because 1) they can't be sure of anything since they buy debts without any paperwork, hence the need to go back to the OC and 2) the burden of proof is on them to show it's not SBd.

[FlamingParrot]

Re: Lowell - Statute Barred and Default Date

My question is where do I go from here? Having all the evidence should I inform them of this or wait until they get (or make up) copies of statements?

As above, the onus is on them to prove the debt is SBd.

Also would the cause of action be first non payment +21 days as my T&C's state? Surely it cannot be the date Lowell are quoting as HFC had 3 years to do this?? Also what credit agency should I check my report with? Heard Noddle is free?

Many Thanks in advance and sorry for the long post!!! Lowell just get my goat :tinysmile_grin_t:

As above, whatever date your credit report says has nothing to do with limitation, however, you may want to make sure the default is backdated to the correct date so it goes away without having to wait another year. This is where all the evidence you have comes in, if you can show you actually defaulted in 2009 then the default should have been recorded between three and six months after you missed a payment, not three years later. See this for reference: http://www.scoronline.co.uk/sites/de...ment_final.pdf

4. If you fall into arrears on your account, or you do not keep to the revised terms of an arrangement, a default may be recorded to show that the relationship has broken down. As a general guide, this may occur when you are 3 months in arrears, and normally by the time you are 6 months in arrears.

A default will remain on your credit file for 6 years from the default date.

Where there is a problem with the content of a CRA record, you should contact the organisation concerned to give it an opportunity to put things right. If that fails, you can contact the ICO helpline on 0303 123 1113. Please note though that we can only deal with issues to do with the accuracy etc. of your record, not with lending decisions based on it.

[FlamingParrot]

Re: Lowell - Statute Barred and Default Date

Judging by the lack of replies I must have bored everyone to death with the length of my post

Had an update, the statement of accounts have now been sent through and Lowell have just proved that I haven't made a payment since Jun 2008.

That should shut them up! :tinysmile_kiss_t4:

All the more reason for you not to shut up about the incorrect record on your credit report though! :grin: :grin: :grin:

[kidney69uk]

Re: Lowell - Statute Barred and Default Date

Thanks Flaming Parrot, I'm more used to FB forums where the keyboard warriors bite if you attempt to bump anything. You've pretty much confirmed what I've spend endless nights reading up on

With the statement they sent a covering letter was attached saying something along the lines of "hope this answers your questions, please call to make payment". I am presuming this is just a standard letter spat out by a computer? I've not heard from them in a week but get a little nervous when I come home from work as I feel what ever I say will fall on deaf ears. I had planned on sending all my evidence with the next inevitable letter they send. I presume this is the wrong way to do it. Should I be focusing more on saying "you haven't answered my questions, prove it's not SB'd with more than a default date??

I guess this all relies on when the default notice was issued, it's the last piece of evidence I need. Should I ask HFC for the original or would can I get Lowell to check this for me? I can only see limited information with Noddle, do the other credit agencies provide more detail, such as when a date is updated?

I was tempted to dispute the default date on my credit file with the agencies, this is one I would like backdated as it's the last on my file! Am I able to hit the dispute button now or should I wait until Lowell has confirmed it's wrong?....if they ever will!

Really wished I'd kept more of the paper work now. Honestly thought it had gone away

[FlamingParrot]

Re: Lowell - Statute Barred and Default Date

Thanks Flaming Parrot, I'm more used to FB forums where the keyboard warriors bite if you attempt to bump anything. You've pretty much confirmed what I've spend endless nights reading up on

We haven't got keyboard warriors on here! :nono: We bark loudly but don't bite. :beagle:

With the statement they sent a covering letter was attached saying something along the lines of "hope this answers your questions, please call to make payment". I am presuming this is just a standard letter spat out by a computer? I've not heard from them in a week but get a little nervous when I come home from work as I feel what ever I say will fall on deaf ears. I had planned on sending all my evidence with the next inevitable letter they send. I presume this is the wrong way to do it. Should I be focusing more on saying "you haven't answered my questions, prove it's not SB'd with more than a default date??

The SBd letter clearly says they should either prove it isn't or else take a hike. :bolt:
I guess this all relies on when the default notice was issued, it's the last piece of evidence I need. Should I ask HFC for the original or would can I get Lowell to check this for me?

Banks don't usually retain copies of the DNs which is why the likes of Lowell struggle to supply the documents requested when they issue a claim. Although a judge recently ruled that the clock starts on the date the DN is issued, this isn't yet case law so they can't say the DN date (whatever it may be as they're not likely to be able to get hold of it) is when the clock starts to run.

I can only see limited information with Noddle, do the other credit agencies provide more detail, such as when a date is updated?

Default dates on credit files are not an indicator of SBd status. :nono:

I was tempted to dispute the default date on my credit file with the agencies, this is one I would like backdated as it's the last on my file! Am I able to hit the dispute button now or should I wait until Lowell has confirmed it's wrong?....if they ever will!

Really wished I'd kept more of the paper work now. Honestly thought it had gone away

I would dispute it, if you haven't paid since 2008 there shouldn't be anything left on your credit file seven years later. :thumb:

[kidney69uk]

Re: Lowell - Statute Barred and Default Date

Well it turns out that Lowell sending me evidence of no payments within 6 years has not shut them up :mad2:

Received a letter saying that I haven't provided a valid reason for non payment and that they may take further action if I do not call them. This is a different letter to the standard ones however??

I've disputed the date via Noddle (call credit) and am drafting Lowell a letter stating all the facts and that they have not provided any evidence that this debt is not SB'd.

Although a judge recently ruled that the clock starts on the date the DN is issued, this isn't yet case law

What would be the chances of them bringing this up, is that the BMW case I've read?

Thanks!

[Debt Camel]

Re: Lowell - Statute Barred and Default Date

I've disputed the date via Noddle (call credit)

That is probably a waste of time. CRAs don't make any decisions on default dates, they just report what they are told. You need to dispute the default date with the lender, see http://debtcamel.co.uk/debt-default-date/.

[nemesis45]

Re: Lowell - Statute Barred and Default Date

I would expect Noddle (Call Credit) to contact the lender and or the debt purchaser to query the date, but I would also expect the stock answer i.e. "The default is correct and must remain".

The date of the default certainly appears to be outside the ICO guidelines, write to the Data Controller of the Original Creditor ( with all your evidence of the last payment etc.) demand that the default is back dated as the lateness in registering the default places you in unreasonable disadvantage.

nem

[Nibbler]

Re: Lowell - Statute Barred and Default Date

What would be the chances of them bringing this up, is that the BMW case I've read?

Thanks!

I would imagine it is this?

http://www.consumeractiongroup.co.uk...=1#post4776427

[nemesis45]

Re: Lowell - Statute Barred and Default Date

I would imagine it is this?

http://www.consumeractiongroup.co.uk...=1#post4776427

Late registering of defaults is dealt with in the Information Commissioners Office Technical Guidance on Defaults 2014.

The judge in the case above should imo have been directed to that document.

nem

[kidney69uk]

Re: Lowell - Statute Barred and Default Date

Thing is with this one is that I'm 100% certain no DN was issued on this date and they are most certainly going by the credit file date. I can see they haven't made a search on my credit file however so don't think they have looked into this one really. I've drafted out a letter with all the fact's in, will post it shortly to see what you guys think. Be gentle it's my first time writing something like this

[FlamingParrot]

Re: Lowell - Statute Barred and Default Date

Thing is with this one is that I'm 100% certain no DN was issued on this date and they are most certainly going by the credit file date. I can see they haven't made a search on my credit file however so don't think they have looked into this one really. I've drafted out a letter with all the fact's in, will post it shortly to see what you guys think.

If you are referring to SBd, that's got nothing to do with the default date on the credit file. Lowell themselves often fiddle with the original date to start with, probably so they can later argue the debt is not SBd and some people who don't know any better may well fall for it. :rant: :rant: :mad2:

Be gentle it's my first time writing something like this

We are nice beagles here. :tongue2:

...except where Lowell are concerned... :grin: :grin: :grin:

[kidney69uk]

Re: Lowell - Statute Barred and Default Date

...except where Lowell are concerned

If I owed the money to the original creditor then fair enough but these people are vultures who profit on others misery through scare tactics. To be fair it's not a huge debt but I'm doing this out of principle...anyway letter I plan to send is in the next post. Contents there, just the structure really and whether I'm including parts that I don't need too.

- - - Updated - - -
Dear Sir,

Thank you for your letter dated 28^th August 2015 inviting me to call your organisation to arrange payment of the above account which you claim is owed by myself. I wrote to you on the 17^th July informing you that the Limitation Act 1980 applies to this account as no payments or acknowledgement have been made in over 6 years and therefore the debt is statute barred.

I would like to refer you to the Limitation Act 1980 Section 5;

“An action founded on simple contract shall not be brought after the expiration of six years from that date on which the cause of action accrued.”
The Consumer Credit Sourcebook produced by the financial conduct authority states the following rules;
“…a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period.” 7.15.4
Unfortunately your organisation has so far failed to provide any credible evidence that the Limitation Act 1980 does not apply to this debt.

In your correspondence dated 27^th July 2015 you state that the Limitation Act does not apply because you consider the default date to be 30^th November 2011, which in your opinion was when a default notice was issued by the original creditor making the full balance due.
As you will be aware the default date, firstly bares no relationship as to when a default notice was issued and secondly cannot be used to determine when the cause of action starts. This is because the default date registered is a procedural matter and can be entered at any point in time by the controller of the data. In the case of my alleged debt, it would appear that this date has been entered just prior to sale to your organisation by HFC. This is backed up with evidence I have in the form of a credit file statement dated 3^rd February 2010 which shows a delinquent date of 19^th February 2009 on this debt.
I would like to refer you to your letter dated 18^th August 2015 which contains a copy of the statement of account for this alleged debt for the period 27^th January 2005 to 5^th August 2015. The statement provided by you shows evidence that no payment has been made on this debt since 27^th May 2008.
The Information Commissioner’s Office (ICO) guidelines for Principles for the Reporting of Arrears, Arrangements and Defaults at Credit Reference Agencies, Section 4 state;
“If you fall into arrears on your account, or you do not keep to the revised terms of an arrangement, a default may be recorded to show that the relationship has broken down. As a general guide, this may occur when you are 3 months in arrears, and normally by the time you are 6 months in arrears.”



Using the ICO’s guidelines the latest this debt would have been considered to be in default would have been 28^th November 2008, as by this date, the account would have been 6 months in arrears and a default notice would have been issued. That default date quoted by yourselves is 3 years later than when this debt was considered to be in default, therefore I consider the default date you have on file to be incorrect and I have raised this as a dispute on my credit file.
I would like to remind you that the “cause of action” for simple contract debts is when the agreement says the creditor is able to take court action because the debtor has fallen behind with payments. This is usually one or two missed payments. A simple contract debt will normally be statute barred if;

• The creditor has not already obtained a county court judgement on the debt.
• No payment has been made towards the debt during the last six years.
• No acknowledgement of the debt has been made during the last six years.

Section 5, Paragraph 1, “When we may end the agreement early” of the terms and conditions of the original credit agreement for this debt for which I have evidence states that they may end the agreement early if you fail to pay a monthly payment within 21 days of its due date. For this debt this can be considered to be the “cause of action”.
Unless you can provide evidence of written contact from me in the relevant period under Section 5 of the Limitation Act. I suggest that you are no longer able to take any legal action against me to recover the amount claimed.
Please be aware all of the above facts stated by myself can be backed up with physical evidence. Should you continue to pursue this debt on the basis that the Limitations Act does not apply due to the default date or ignore and of the statements made above then I will have no choice but to raise a complaint to both your customer relationships department and the Financial Ombudsman Service.

I look forward to hearing from you.