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Lowell - Re constituted agreements

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Lowell - Re constituted agreements

Post by Theatchet on Tue Jan 02, 2018 3:09 pm

Below is a copy of the digital application which they are claiming is enough for a reconstituted agreement. I just copied it from another page but have had the same thing.
I have completed their paperwork and sent back, along with the CCA request, pre-action protocol letter and CPR 18 request. They have since sent me the default notice. I wrote back stating that this is not a credit agreement and also asked for the prescribed terms and conditions, to which they replied ( see below ).



.
Anybody with a bit more of an idea than me know if this would be an appropriate reasoning for a response to their reconstituted agreement claim?
All they have sent is a digital application, to which, there is no heading prescribed by the CCA, no copy of the terms and conditions or any variations which may have occurred, they have not given any reasoning to why there is no copy of the CCA either.

(3) The terms and conditions should be those applicable at the time the agreement was executed. The name and address at the time of execution must be included.
(4) The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice.
(5) If the reason why no copy is given in response to a request under these sections is that there never was an executed agreement, the firm should acknowledge this in its response.
(6) If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also either:
(a) a copy of the latest variation given in accordance with section 82(1) of the CCA relating to each discrete term of the agreement which has been varied; or,
(b) a clear statement of the terms of the agreement as varied.



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Re: Lowell - Re constituted agreements

Post by warwick65 on Thu Jan 04, 2018 8:56 pm

Hi
So there have sent you a letter before action?

Why have you sent a CPR18 request- that is to be used once a claim has been issued

So if I am right you asked Lowell solicitors for the agreement and the default notice- anything else?

You sent a CCA request to Lowell ?

The cca request should have the terms and conditions at inception and at default
As the agreement is from 2010 they can get away with an electronic signatire so do not need it, also the fact the card has been used etc is usually enough for a judge to say it is enforceable , however you need to argue bad DN , and assignment issues

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Re: Lowell - Re constituted agreements

Post by Theatchet on Fri Jan 05, 2018 1:51 pm

@warwick65 wrote:Hi
So there have sent you a letter before action?

Why have you sent a CPR18 request- that is to be used once a claim has been issued

So if I am right you asked Lowell solicitors for the agreement and the default notice- anything else?

You sent a CCA request to Lowell ?

The cca request should have the terms and conditions at inception and at default
As the agreement is from 2010 they can get away with an electronic signatire so do not need it, also the fact the card has been used etc is usually enough for a judge to say it is enforceable , however you need to argue bad DN , and assignment issues

Sorry, I got a little excited there, I haven't sent a CPR 18 request yet. They have sent me the notice of assignment, default notice, digital application and statements, but no terms and conditions. They are telling me I can do this online.  I have sent requests ( three times ) for the credit agreement and prescribed terms and conditions, both to Lowells and their solicitors.
I'm a little confused here as to why they don't have to produce a copy of the credit agreement. Obviously, it's been sold on prior to this, as someone would have a copy of it at least. I had a few wonga loans over the years, so I thought I would just try this approach on a small amount. They sent me every agreement and piece of documentation for every loan I have had with them in the past, going back a good few years, yet lowell can only scrape together a digital application with no terms and conditions.
I've had one case go to court and discontinued the week before the hearing, due to them not sending me one piece of documentation.  They never produced me any documentation, whilst threatening me all the way. If all they need is a copy of the digital application and statements, then every company will surely have that information at least if the agreement has already been sold on.

My question was about the rules I posted about a re constituted agreement, and should I write to them asking those points?

(3) The terms and conditions should be those applicable at the time the agreement was executed. The name and address at the time of execution must be included.
(4) The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice.
(5) If the reason why no copy is given in response to a request under these sections is that there never was an executed agreement, the firm should acknowledge this in its response.
(6) If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also either:
(a) a copy of the latest variation given in accordance with section 82(1) of the CCA relating to each discrete term of the agreement which has been varied; or,
(b) a clear statement of the terms of the agreement as varied.

Thanks for reply anyway

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Re: Lowell - Re constituted agreements

Post by warwick65 on Fri Jan 05, 2018 3:00 pm

Hi
If you sent the CCA request with the fee they indeed need to provide what you have listed .

This is the second time recently I have heard them say the terms and conditions can be found on the website but if the S78 request was sent, IMO that is not enough.

I recently beat Lowell in small claims court and was awarded costs because of them continuing with a hopeless case, There problem was threefold
They could not send even a reconstituted DN , they supplied an illegible copy of the agreement but did not comply with S78 and finally they could not prove assignment

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Re: Lowell - Re constituted agreements

Post by Theatchet on Fri Jan 05, 2018 3:17 pm

@warwick65 wrote:Hi
If you sent the CCA request with the fee they indeed need to provide what you have listed .

This is the second time recently I have heard them say the terms and conditions can be found on the website but if the S78 request was sent, IMO that is not enough.

I recently beat Lowell in small claims court and was awarded costs because of them continuing with a hopeless case, There problem was threefold
They could not send even a reconstituted DN , they supplied an illegible copy of the agreement but did not comply with S78 and finally they could not prove assignment

I. Pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974) copy of the Original Signed Consumer Credit Agreement, along with a copy of the original Terms & Conditions and any and all subsequent changes in said Terms & Conditions.
That was the very first thing what was asked for with the pre-action protocol letter.
I'll just write to them again, pointing this part out and that I want a copy of the terms and conditions and any subsequent changes. It just gets pretty annoying when you have to ask four times for the same thing.
I was hoping that someone on here has had the same experience with lowell and the reconstituted agreement approach.

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Re: Lowell - Re constituted agreements

Post by warwick65 on Fri Jan 05, 2018 6:32 pm

I think I see a flaw in your argument

You asked for these in the preaction protocol response
Did you include the £1 fee and did you send to Lowell or their solicitors? If there was no fee included then you have not asked for a S78 request just a copy of the agreement.

If in doubt, and as long as it is a month since you sent the last one, I think you could send a new S78 request along with the fee to Lowell and NOT the solicitors - you could of course send the solicitors a letter saying please find attached for your reference a copy of a S78 request I have sent to your client

That letter will no doubt confuse their poor little heads

I had the same document sent to me when I CCAd them for a vanquis account a couple of years ago. The problem is that as you applied online there was not an agreement in the same way as there would be if you did it manually
As such they just repopulate a template with your details

If the details are correct then it is an enforceable agreement

however, vanquis are not that good at sending out compliant DN's and after a lot of correspondence they final closed the account which had a balance of £1200

Once it does become SB I will be contacting Vanquis with a SAR to see if there was any PPI repayable

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Re: Lowell - Re constituted agreements

Post by Theatchet on Fri Jan 05, 2018 7:38 pm

@warwick65 wrote:I think I see a flaw in your argument

You asked for these in the preaction protocol response
Did you include the £1 fee and did you send to Lowell or their solicitors? If there was no fee included then you have not asked for a S78 request just a copy of the agreement.

If in doubt, and as long as it is a month since you sent the last one, I think you could send a new S78 request along with the fee to Lowell and NOT the solicitors - you could of course send the solicitors a letter saying please find attached for your reference a copy of a S78 request I have sent to your client

That letter will no doubt confuse their poor little heads

I had the same document sent to me when I CCAd them for a vanquis account a couple of years ago. The problem is that as you applied online there was not an agreement in the same way as there would be if you did it manually
As such they just repopulate a template with your details

If the details are correct then it is an enforceable agreement

however, vanquis are not that good at sending out compliant DN's and after a lot of correspondence they final closed the account which had a balance of £1200

Once it does become SB I will be contacting Vanquis with a SAR to see if there was any PPI repayable  

A cheque for £1 was sent to both lowell and their solicitors with the CCA letter. Is it not only enforceable with terms and conditions? For whatever reason, they don't seem to want to send them on, and if they say they can be viewed online, then they don't have a copy in their possession. I don't think it really matters what I send them, because they clearly don't take any notice and probably already have a response lined up.

This was part of the last letter I sent to them.

What you have sent does not contain the prescribed terms and conditions, therefore, cannot possibly a 'true copy' of an agreement and as you are aware will not be enforceable, in any court of England and Wales.

I/we understand that under the Consumer Credit Act 1974 creditors are unable to enforce an agreement if they fail to comply with the request for a copy of the agreement and statement of account under these sections of the Act. Please be aware that until you provide a copy of the credit agreement the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.
* You may not add further interest or any charges to the account.
* You may not pass the account to a third party.
* You may not register any information in respect of the account with any credit reference agency.
* You may not issue a default notice related to the account.
* You may not issue a court summons.

You should also be aware that unless or until you provide me/us with the agreement requested under the Consumer Credit Act 1974, it will remain Unenforceable at Law, and any legal proceedings taken out whilst the agreement request remains outstanding, will be Vexatious and Unlawful. Be aware also that the Financial Conduct Authority Regulations apply:

7.3.18: A firm must not threaten to commence court action, including an
application for a charging order or (in Scotland) an inhibition or an order
for sale, in order to pressurize a customer in default or arrears difficulties
to pay more than they can reasonably afford.

7.11.6: A firm must not suggest or state that action can or will be taken when
legally it cannot be taken.



FCA Regulation – CONC 13.1.16

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 the CCA, a firm should make it clear when communicating to a customer about a debt that is in fact unenforceable. Failure to do so, in that case, would in the FCA'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 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/we look forward to hearing from you within the allotted timescale.

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Re: Lowell - Re constituted agreements

Post by daveiron on Fri Jan 05, 2018 8:05 pm

Based upon that last paragraph ,I would give them 5 days to produce a true copy as requested or you will with out delay report them to the FCA.

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Re: Lowell - Re constituted agreements

Post by warwick65 on Sat Jan 06, 2018 9:11 pm

If they haven’t complied with terms and conditions etc it is unenforceable but you need to plead that in your defence if they do issue a claim. There will almost certainly be other issues such as compliant DN and assignment.

Personally I would not send confrontational letters as it might push them into finding what you dont want them to.

It is not an offence to fault to comply - what they shouldn’t do is try to enforce but issuing a claim is not enforecement as per Harrison v Link

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Re: Lowell - Re constituted agreements

Post by Theatchet on Tue Jan 09, 2018 1:03 pm

@warwick65 wrote:If they haven’t complied with terms and conditions etc it is unenforceable but you need to plead that in your defence if they do issue a claim. There will almost certainly be other issues such as compliant DN and assignment.

Personally I would not send confrontational letters as it might push them into finding what you dont want them to.

It is not an offence to fault to comply - what they shouldn’t do is try to enforce but issuing a claim is not enforecement as per Harrison v Link

I've sent them a letter questioning their reconstituted agreement, also for the terms and conditions, plus the cancelation clause applicable to the executed agreement. I think that the default notice should have had that written into it too.

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