Lowell and a borderline statute barred debt.

[Nibbler]

Re: Lowell and a borderline statute barred debt.

I'll stand ground to them then. First missed payment was 25/05/2007 so I'd argue that this is the initial CoA. Absolutely no other contact was made between then and June 2013 so there are no other factors in regards to restarting the clock.

Thank you

The one thing I would say is that Lowell are sometimes arrogant enough to try their luck on these cases in court. So while hopefully they won't here, I would not like to say that they are always all bluff.

[FlamingParrot]

Re: Lowell and a borderline statute barred debt.

The one on public view on GAG, then yes. Subject to appeal, but who knows where that will go......

That's the one I was referring to, one can only hope the whole appeal thing doesn't backfire and we end up with case law that says the clock starts from the date of the DN! :scared:

- - - Updated - - -

The one thing I would say is that Lowell are sometimes arrogant enough to try their luck on these cases in court. So while hopefully they won't here, I would not like to say that they are always all bluff.

By the time this actually goes to court (defence filed, hearing date set, etc.) we may well have a result on the case above.

[kidney69uk]

Re: Lowell and a borderline statute barred debt.

The way I see it is that your last payment was 26/4/2007. You missed your payment on 26/5/2007, they'd of then written to you to inform you of this and given you X amount of time to put it right, probably by 26/6/2007.

Even though you are technically right and going by 'last payment' it would of been SB'd you might have a hard time convincing a court of this because of the payment you made in 2013 which they could argue reset the clock

I guess it depends what they define as 'cause of action' in your original T&C's as that might clear it up.

[FlamingParrot]

Re: Lowell and a borderline statute barred debt.

The way I see it is that your last payment was 26/4/2007. You missed your payment on 26/5/2007, they'd of then written to you to inform you of this and given you X amount of time to put it right, probably by 26/6/2007.

Even though you are technically right and going by 'last payment' it would of been SB'd you might have a hard time convincing a court of this because of the payment you made in 2013 which they could argue reset the clock

Only if the debt wasn't SBd at the time that payment was made. :noidea:

I guess it depends what they define as 'cause of action' in your original T&C's as that might clear it up.

If you really really want to read up on the subject, you may want to look at:
http://www.legalbeagles.info/forums/...red#post399097 and
http://www.legalbeagles.info/forums/...red#post400620

[FlamingParrot]

Re: Lowell and a borderline statute barred debt.

This may be applicable:

MBNA do not issue default notices for 6 months. However according to their T's & C's they are entitled to call in the outstanding balances immediately on missed payment. They could of course issue the DN after the first missed payment or 2nd but they choose to wait for six months. I think it unlikely that the courts would allow MBNA to extend the COA this way. Personally I agree with the procedural point and that the COA in this circumstance would be 30/31 days after 1st missed payment.

[Aymz]

Re: Lowell and a borderline statute barred debt.

Ok....I think what I will do is hold fire sending anything further regarding the SB to Lowell for the minute. I've read the posts on CAG (followed link) but it didn't look like he was going to appeal? Unless there was another thread about it.

I presume Nibbler that you have seen on MSE that someone mentioned whether I had done a CCA request or not (which we haven't). Would you think this is worthwhile doing at all? And would it have to be the original copy? Template letters on MSE state original copy...but they also said 6 years from last payment .

Would this go to Lowell or Welcome? As far as I know, Welcome (at least our regional office) archived everything by sending it to Head Office in a scanned format. When I asked Welcome for docs relating to my debt (informally, not through a CCA request) they sent me everything but the agreement was a print out of a scanned copy.

Thank you all

[Nibbler]

Re: Lowell and a borderline statute barred debt.

Ok....I think what I will do is hold fire sending anything further regarding the SB to Lowell for the minute. I've read the posts on CAG (followed link) but it didn't look like he was going to appeal? Unless there was another thread about it.

I believe they have a lawyer helping them, so any thread, wherever it may be, won't be publicly viewable.

I presume Nibbler that you have seen on MSE that someone mentioned whether I had done a CCA request or not (which we haven't). Would you think this is worthwhile doing at all? And would it have to be the original copy? Template letters on MSE state original copy...but they also said 6 years from last payment .

CCA request? Maybe. Or may be better to save that in case legal action is started, as it's a useful tool in that process. Welcome did keep a lot of agreements.

Original copy? Which 'MSE' template is that? Have you a link?

Would this go to Lowell or Welcome? As far as I know, Welcome (at least our regional office) archived everything by sending it to Head Office in a scanned format. When I asked Welcome for docs relating to my debt (informally, not through a CCA request) they sent me everything but the agreement was a print out of a scanned copy.

It goes to Lowell as they are now the 'creditor' and the legal duty falls on them. If they have to beg Welcome for it then that is their problem.

[FlamingParrot]

Re: Lowell and a borderline statute barred debt.

Ok....I think what I will do is hold fire sending anything further regarding the SB to Lowell for the minute. I've read the posts on CAG (followed link) but it didn't look like he was going to appeal? Unless there was another thread about it.

There is but is not on CAG. :tinysmile_kiss_t4:

I presume Nibbler that you have seen on MSE that someone mentioned whether I had done a CCA request or not (which we haven't). Would you think this is worthwhile doing at all? And would it have to be the original copy? Template letters on MSE state original copy...but they also said 6 years from last payment .

I'm afraid that's no longer the case, on Carey -v- HSBC it was established that a reconstructed copy is acceptable response to a CCA request.
http://legalbeagles.info/carey-v-hsb...december-2009/

(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
(5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;

Would this go to Lowell or Welcome? As far as I know, Welcome (at least our regional office) archived everything by sending it to Head Office in a scanned format. When I asked Welcome for docs relating to my debt (informally, not through a CCA request) they sent me everything but the agreement was a print out of a scanned copy.

Normally you'd send the CCA request to whoever is chasing the account (Lowell in this case), however, in some cases it may be worth going directly to the original creditor if your intention is to see what sort of documentation they've got without alerting Lowell. However, in this case I'd probably leave it for later. :ranger:

[MIKE770]

Re: Lowell and a borderline statute barred debt.

For Info:-

From Stepchange:- to me on 20/08/2015:-


For regulated debts, the six years starts from the point the creditor is entitled to take legal action for the whole balance according to the terms of the agreement, not the date the default notice was issued or expired as some creditors will claim. This is because the creditor could unfairly prolong the limitation period by delaying sending the default notice, for example if it took the creditor over a year to send the default notice then that would give them another year to collect the debt. That kind of action would be unfair to you.

To accurately work out the start of the limitation period, we would suggest you check the terms of the agreement and the date of your last payment. The agreement should indicate how many payments you have to miss or how far behind you can get with the payments before they would be entitled to take legal action against you to collect the debt.

So the six year limitation period starts from whichever of these is the most recent:

· The date of default worked out according to the agreement (not the date of the default notice)
· The date of the last payment
· The date of the last written acknowledgement

Based on the information we have, it is difficult to say exactly when the six year period started.

If the creditor believes that the limitation period is coming to end then they can consider taking legal action against you, as if they obtained a valid county court judgment then it would stop the debt from ever being statute barred. If you believe the debt is statute barred then the court would give you an opportunity to file a defence to the action.

If legal action is taken against you then you might want to consider getting legal advice before filing your defence with the court. You can get impartial legal advice from either your local Citizens Advice Bureau or Civil Legal Advice. They might also be able to comment on the potential fees and costs involved.

I hope this helps.


Richard
Web Advisor

[FlamingParrot]

Re: Lowell and a borderline statute barred debt.

For Info:-

From Stepchange:- to me on 20/08/2015:-

For regulated debts, the six years starts from the point the creditor is entitled to take legal action for the whole balance according to the terms of the agreement, not the date the default notice was issued or expired as some creditors will claim. This is because the creditor could unfairly prolong the limitation period by delaying sending the default notice, for example if it took the creditor over a year to send the default notice then that would give them another year to collect the debt. That kind of action would be unfair to you.

The problem is that it wasn't a creditor claiming that was the case, it was a JUDGE! :eek2: :CryJs are not consumer credit specialists, they hear a variety of cases and may not be familiar with the ins and outs of consumer credit so they will take the side of whoever puts forward a more convincing argument. In this case we had a LIP vs a creditor who specialises in that area.

It's not case law but the decision to appeal the judgment means it could become case law if it all goes wrong.

I guess we just have to wait and see... :ranger:

...and hope that we don't get court papers for a near SBd debt before the matter is resolved. ray: ray: ray: Even though it's not precedent, another judge could reach the same conclusion after hearing about that case, particularly one who is not familiar with consumer credit legislation. :incourt:

[Aymz]

Re: Lowell and a borderline statute barred debt.

Thanks Mike. I've emailed Lowell back to ask them to put a hold on the account whilst we figure out a way to resolve the debt. Hoping they'll read it and think I'm on about getting it paid back - I'm not (at the minute), but going to request paperwork from Welcome without alerting Lowell...

[FlamingParrot]

Re: Lowell and a borderline statute barred debt.

Thanks Mike. I've emailed Lowell back to ask them to put a hold on the account whilst we figure out a way to resolve the debt. Hoping they'll read it and think I'm on about getting it paid back - I'm not (at the minute), but going to request paperwork from Welcome without alerting Lowell...

I hope you didn't say something that could be construed as acknowledging the debt. ray: In case it's not yet SBd, if it is then nothing can un-bar it, not even a payment, however, it's best to be on the safe side. :thumb:

[Aymz]

Re: Lowell and a borderline statute barred debt.

I purposely did not make it sound like anything, I don't think it could be construed as acknowledgment anyway

[Aymz]

Re: Lowell and a borderline statute barred debt.

paperwork going to be sent from Welcome, but when on the phone, hubby asked when the account went to default. The man from Welcome said 2nd January 2009 - a year and a half after payments stopped. Lowell have stated default date as 9 October 2007. :confused2:

won't know who is correct until get paperwork from Welcome, but if they are correct, is anything to be done about the 18 months it took to default the account?

[FlamingParrot]

Re: Lowell and a borderline statute barred debt.

paperwork going to be sent from Welcome, but when on the phone, hubby asked when the account went to default. The man from Welcome said 2nd January 2009 - a year and a half after payments stopped. Lowell have stated default date as 9 October 2007. :confused2:

This is rather odd since Lowell are the ones who often 'update' default dates rather than the other way round. When you say paperwork will be sent from Welcome, did you send them a SAR as well as a CCA request? The CCA request is just for a copy of your agreement and, although they are also required to supply a statement of account, if you want statements and payment history, etc. you'll need a SAR. Having said that, many companies argue that they can only supply data for the past six years so it may not go much further than 2009, certainly not 2007.

won't know who is correct until get paperwork from Welcome, but if they are correct, is anything to be done about the 18 months it took to default the account?

Although technically it's not correct to take 18 months to default an account, in reality this is not affecting you in any way. If the default was recorded in 2009 it should have dropped off your credit file early this year and even if you came across a judge that goes by the default date (on the default notice, credit files have nothing to do with it), the debt would still be SBd if the date was taken to be Jan 2009, provided no payments or written acknowledgments were made.