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Moon phases


Lowell threatening me Again !!

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Post by daveiron on Sat Jul 20, 2019 10:23 am

If the account is 90's .what they have sent does not comply. There is every chance that is all they have ,hence they have not moved this forward.
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Post by barnwebb on Mon Jul 22, 2019 8:38 pm

Many apologies waylander, I somehow missed your input, sorry about that.

Yes it is very close to the final hearing, I don't want a CCJ as it'll be another six years of hassle but other than that I don't suppose it means too much as far as I can tell should I fail to win.

In answer to your question concerning the default letter, I don't recall getting one at the time my account went wayward, and up to now I've been badgering Lowell to produce one and they never have, which, if you include Fredricksons in the mix, has been five years. I sent a SAR to Capital One, the OC, and in the pile of paperwork that arrived was a default letter which they say was sent to me at the time. After that had arrived the Lowell witness statement arrived and in their pile of paperwork was a copy of the same letter which they will be using against me.

Thanks also to daveiron, they've moved forward enough that they consider themselves the winning team at the hearing even though it hasn't happened yet.

A self righteous bunch they are as their letter with their witness statement told me that according to my witness statement my Defence is without merit which must mean they have Mystic Meg on their team with a crystal ball as I hadn't yet sent my one when their one turned up.

They offered a settlement proposal too with a threat that if settlement isn't received within 7 days they'll ask that my Defence be struck out, seek to recover the full amount of debt, instruct an advocate to recover all costs if the case goes to a hearing and the advocate will produce the ws cover letter in Court to eveidence any wasted costs they have incurred. Costs that could have been avoided if I'd agreed a settlement to conclude the matter at an ealier stage.

Don't want much do they !

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Post by daveiron on Mon Jul 22, 2019 9:40 pm

Look at CCA sec 78.1 They must supply a copy of the agreement .If the agreement is not legible ,who knows those blurred words say.
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Post by waylander62 on Tue Jul 23, 2019 12:57 am

is the default notice compliant, have you checked this ? use the fact that Lowell have never provided one until the witness statement was produced which if this had been produced when it should have been then mediation would have been an option ?

the agreement needs to be fully compliant, you have the great advantage of being able to call on section 127, which does not allow the court to enforce the agreement unless it is fully compliant. This section has since been repealed but still applies to your agreement.

and a simple notice of assignment does not prove title they MUST prove that they hold full title in order to bring the matter before the court and exercise their right as lender under any agreement.

who EXACTLY are the claimant on the claim form, full name of the claimant.


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Post by barnwebb on Wed Jul 24, 2019 12:55 pm

Absolutely daveiron, the downfall will be if the judge accepts any old rubbish as has happened to me before.

waylander ..... 'is the default notice compliant, have you checked this ?' ..... no, I haven't, I'm not actually sure what compliance I'm looking for. I used to use the old goodf site as a reference library but that vanished and I hadn't saved most of the info and have been trying to work things out ever since.

I will be pointing out that the DF has never been produced up until the witness statement.

'the agreement needs to be fully compliant,' ..... I guess you mean what is below

https://www.legislation.gov.uk/ukpga/1974/39/section/127/enacted
127, Enforcement orders in cases of infringement
(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).

https://www.legislation.gov.uk/ukpga/1974/39/section/60/enacted
60, Form and content of agreements.
(1)The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a)the rights and duties conferred or imposed on him by the agreement,

(b)the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

(c)the protection and remedies available to him under this Act, and

(d)any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

(2)Regulations under subsection (1) may in particular—

(a)require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

(b)contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

https://www.legislation.gov.uk/ukpga/1974/39/section/61/enacted
61, Signing of agreement
(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.

https://www.legislation.gov.uk/ukpga/1974/39/section/65/enacted
65, Consequences of improper execution
(1)An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

I'm hoping the judge will agree with me (that'll be a first) and force them to prove they hold full title.

I'm wondering who the name on the claim form belongs to or even if the name is a real person particularly as I've read recently that Lloyds have been in trouble for inventing fake names/people and putting it on letters etc.

Anything I've posted to "the name" at Lowells has never been replied to. I only ever receive an unsigned letter signed by the Lowell company/solicitors company/header name.

I got this from the old goodf site but I don't know where it originated and whether it is valid, I risked putting it in the witness statement anyway:-

* Any copy of the Agreement lawfully requested by the debtor under section 78 of the Consumer Credit Act 1974, must be the Original Agreement or at the very least a valid and true Certified Copy of the Original Agreement - in this instance, reconstituted agreements are not valid, true copies and are unacceptable.

* The Agreement must contain a Credit Limit, or a reference that the Credit Limit will be set at a later date, or a statement that no Credit Limit is required.

* The Agreement must declare the APR% rate, monthly and/or annually.

* The Agreement must contain a date/or indication of a date such as weekly, monthly or annually, for payments to be made, or state a date will be decided upon later, or that monthly statements will be provided to show the date of required payment.

* The Agreement must contain ALL Terms and Conditions in existence on the date of signing.

* The agreement must be legible, and the type face distinguishable from the background colour.

* ALL of the above, must be contained within a single, signed document.


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Post by David1990 on Tue Jul 30, 2019 6:21 am

i had the same issue with Lowell, thanks for help

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Post by barnwebb on Tue Jul 30, 2019 9:12 am

I'm glad this thread has been of use to you David1990, good luck with what ever your challenge might be Smile

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Post by barnwebb on Thu Aug 01, 2019 5:47 pm

Am I correct in saying that in the case of Carey & Others v HSBC Bank plc & Others [2009] EWHC 3417 (QB) (“Carey”) the judges decision to allow any old rubbish is not retrospectively applicable to Agreements opened before 6th April 2007 and that because of this I can refuse to accept any reconstituted documents etc (and hope the court does too) and "they" have to provide a true copy of the agreement in compliance with section 78 ?

I ask this as waylander has said that section 127 is still valid for agreements before that date but not after as it has been repealed.

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Post by daveiron on Thu Aug 01, 2019 6:22 pm

Yes that is also my understanding, I looked through the acts a while ago and drew the same conclusions.
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Post by barnwebb on Thu Aug 01, 2019 7:24 pm

Thanks daveiron, I just thought I would clarify that thought.

Unfortunately the judge in my previous encounter nearly two years ago didn't have the same thought but I'll give it a bash this time round and see what happens.

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Post by daveiron on Thu Aug 01, 2019 9:23 pm

Just to confirm. I have one thats pre 2006 ,in fact they have told me is not enforceable .
The only reasons I can see is that all they can supply is a blurred photocopy .In fact they can only supply that in 2 halves.
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Post by waylander62 on Thu Aug 01, 2019 9:54 pm

@barnwebb wrote:Thanks daveiron, I just thought I would clarify that thought.  

Unfortunately the judge in my previous encounter nearly two years ago didn't have the same thought but I'll give it a bash this time round and see what happens.

judges do this all of the time particularly where LIP's are concerned, the law is the law and section 127 can be used for agreements before the changes.

do not overlook the fact that they have not proven that assignment has taken place a simple A4 sheet of paper does not prove your account has been lawfully assigned and that the claimant have full title to sue.

i am sure the judge will be on the side of the claimant from the onset but you always have a case particularly where actual assignment has not been proven.

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Post by barnwebb on Thu Aug 01, 2019 10:35 pm

Thanks waylander,

You'll like this.

The paragraph below is from the lowell witness statement, word for word.

'There is no legal basis for the Defendant's request for a Deed of Assignment ("the Deed") from the Claimant. The Deed is a commercially sensitive document of little evidential value. The Deed refers to the assignment of a bulk of agreements, and would not necessarily refer to this Agreement specifically. Nothing contained within the deed can ever provide, assist or be relevant to any legitimate defence.'

I read that as being that there isn't a DoA with which they can prove the legitimate transfer of an agreement under the Law of Property Act 1925 and are winging it.

What do you think ?

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Post by barnwebb on Thu Aug 01, 2019 10:40 pm

daveiron, sorry, I overlooked your post about your blurred two halves photocopy, the one I've been provided with (the application) you can't read the terms etc, the same as my previous case but back then the judge allowed it anyway.

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Post by waylander62 on Thu Aug 01, 2019 11:52 pm

@barnwebb wrote:Thanks waylander,

You'll like this.

The paragraph below is from the lowell witness statement, word for word.

'There is no legal basis for the Defendant's request for a Deed of Assignment ("the Deed") from the Claimant.  The Deed is a commercially sensitive document of little evidential value. The Deed refers to the assignment of a bulk of agreements, and would not necessarily refer to this Agreement specifically.  Nothing contained within the deed can ever provide, assist or be relevant to any legitimate defence.'

I read that as being that there isn't a DoA with which they can prove the legitimate transfer of an agreement under the Law of Property Act 1925 and are winging it.

What do you think ?

what a load of bullsh*t, the deed of assignment evidences whether or not they have full title of the account which is what they are claiming. By issuing a claim they are telling the court they are now lender in this case, and they can only replace the original lender if they have full right title and interest in the account. If they DO NOT KNOW whether it refers to your agreement specifically then how can they know if they actually purchased your agreement ??? FFS they cant !!!!

The question to the court is... WHAT HAS BEEN ASSIGNED ??

what is contained in the deed can most certainly help and assist the defendant as there are many many terms and conditions that the debt purchaser MUST adhere to.

utter cr*p, it evidences whether or not the account has actually been lawfully assigned and also evidences whether or not the purchaser, in this case Lowell, have adhered to the terms of the agreement, if that is, your account has actually been assigned to them.


Last edited by assassin on Fri Aug 02, 2019 1:57 am; edited 1 time in total (Reason for editing : Language)

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Post by barnwebb on Fri Aug 02, 2019 12:30 am

Thanks waylander, I thought that would be the case, I'll make a point of that at the court and see what the judge thinks. Cheers !

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Post by waylander62 on Fri Aug 02, 2019 12:38 am

the burden of proof lies with the claimant and the claimant have not proven that your account has been lawfully assigned.

their refusal to provide evidence that this account has in fact been lawfully assigned and their signedstatement of truth shows evidence that they cannot be sure that it has in fact been lawfully assigned, then it begs the question " what are the Claimant trying to hide" your honour/sir/madame whatever they are called.

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Post by barnwebb on Fri Aug 02, 2019 7:40 am

Thanks waylander, I'm off now to give it my best shot ...... crossing all fingers and toes Smile

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Post by Mrblue on Fri Aug 02, 2019 8:22 am

Brilliant as always from Waylander62, you’re in good hands barnwebb Smile
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Post by barnwebb on Sun Aug 04, 2019 3:57 pm

Thanks Mr Blue, unfortunately it didn't work out.

Needless to say I lost, how unsurprising is that.

The judge was actually a nice fella and spoke in language I could actually understand and in normal conversational style unlike the automated robot I had last time. He was attentive to my arguments although he dismissed them one by one which told me that I was on a losing battle.

Lowell tried to get me with CPR 27.14 (g) which is ..... '(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably;' but the judge dismissed that and surprised me by refusing to allow the Lowell man to claim his attendance fee as I had been honest and had brought up valid questions that needed to be addressed. All other costs I got hammered with.

The judge told me off for using the word 'proof' a legal word he said, instead of the word 'evidence'. Didn't know that 'proof' was so sensitive.

Basically to cut a long story short, anything to do with having sight of any part the Deed of Assignment wasn't going to happen and the judge thought it an unnecessary and almost impossible task to ask Lowell to go though gigabytes of data stream containing thousands of accounts just to find mine. He decided that all the four different Notice of Assignment I had been sent by normal post were valid despite all of them coming from Lowell and notice was enough to validate actual assignment. This is the type of moment where I wish I could afford a proper lawyer who knows his stuff as despite my disagreement that was his final decision.

The judge did annoy me when he started questioning why Lowell had only added one year of interest at 8% and said that four years at 4% would be more proper. In my head I was screaming "you cannot be serious" the famous John McEnroe line. Thankfully he have me a choice so I plumbed for the 8% as that works out cheaper.

So 14 days to pay up or CCJ registered in 28 days = I'll have to do a payment plan of some sort and cross my fingers that I can keep it up and also join the untold numbers of people who have their financial future complicated by a CCJ.

On to the next one which is this thread for anyone who wants to know ..... https://goodf.forumotion.com/t1830p50-hoist-portfolio-howard-cohen-letter-of-claim#24139

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Post by Tvarred on Sun Aug 04, 2019 6:48 pm

Tried to send you a message about this Barnwebb, but for some reason I can't. Please can you contact me.

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Post by waylander62 on Sun Aug 04, 2019 9:44 pm

this result does not surprise me in the least another 'dodgy' judge

you have grounds for appeal as the 'judge' has erred at law however you would most certainly need a solicitor
you have 28 days to appeal the decision would you consider talking to a solicitor likely FOC for an initial consultation they would then tell you if success on appeal would be likely.

these debt purchasers cannot keep getting away with this.

If it is something you would like to consider let me know asap.

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Post by Mrblue on Mon Aug 05, 2019 8:30 am

@barnwebb wrote:Thanks Mr Blue, unfortunately it didn't work out.

Needless to say I lost, how unsurprising is that.

I am sorry to hear that barnwebb and it comes as quite a surprise to me, I must admit! But if anyone can help still, your best chance will be Waylander62. Your fight is not over yet! Smile
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Post by barnwebb on Mon Aug 05, 2019 1:02 pm

Thanks Tvarred, waylander, messages sent.

Thanks Mrblue but it might be all over because in a moment of madness I seem to recall saying in the court that I've never disputed the debt with Capital One but have always disputed the debt with Lowell.

Shot myself in the foot big time I think grrrrrrrrr !!!!!

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Post by waylander62 on Mon Aug 05, 2019 2:08 pm

@barnwebb wrote:Thanks Tvarred, waylander, messages sent.

Thanks Mrblue but it might be all over because in a moment of madness I seem to recall saying in the court that I've never disputed the debt with Capital One but have always disputed the debt with Lowell.

Shot myself in the foot big time I think grrrrrrrrr !!!!!

NO you havent, the argument is on assignment therefore you still dispute the monies owed to Lowell as they have never proven that the account was assigned.

they still havent but as usual the judge simply 'believes' the claimant, with no proof er i mean evidence Rolling Eyes

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