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Lowell Solicitors v Stupidstudent

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  • Lowell Solicitors v Stupidstudent

    All,

    I have received a claim from Lowell Solicitors Limited, acting for Lowell Portfolio I Ltd, issue date 12 May 2017. I'm a mature student, having just finished my final examinations. I have some unsecured debts from my first couple of years as a student, 2 credit cards and an overdraft. I had some difficulties with the student loans company this year and didn't get paid correctly, which led to financial difficulties. I've had very little income, to the degree I have needed access to learning funds from my university to finish my course, and my landlord started eviction proceedings. This claim appears to relate to an Aqua credit card. My other two creditors would appoint a DCA every couple of months who would write a standard letter, I would reply about my situation, including a budget showing my expenditures exceeding my income, and they would pass it back to the creditor. The only exception was the Aqua card, who appeared did not appoint a DCA, so I wrote to them unsolicited in January as both my other creditors wrote at the same time (this may well be important).

    The claim form arrived with a "letter of claim". The letter of claim is dated the 17th of April, although it and the claim form arrived on the 16th of May. I also received another letter from Lowell's, letting me know they were acting on behalf of Lowell's Portfolio I Ltd , which arrived on the Thursday, the 18th. This was the sum total of contact from Lowells Solicitors,and I heard nothing from Lowells portfolio I Ltd. I have not changed address or anything.

    The particulars of claim (amended to avoid identifying myself) read:

    Code:
    1) The defendant entered in to a Consumer Credit Act 1974 regulated agreement with NewDay Ltd Aqua under account reference [wrong reference] ('the Agreement')
    2) The Defendant failed to maintain the required payments and a default notice was served and not complied with.
    3) The Agreement was later assigned to the Claimant on 12/10/2016 and notice given to the Defendant.
    4) Despite repeated requests for payment, the sum of [approx 3.5k] remains due and outstanding.
    And the Claimant claims:
    a) the said sum of [3.5k]
    b) Interest pursuant to s69 County Courts Act 1984 at the rate of 8% per annum the the date of assignment to the date of issue, accruing at a date of [X pense] but limited to one year, being [Y]
    c) Costs.
    They are claiming a court fee of 185, and Legal representative's costs of 80, for a total of just over 4k. These toerags are lying through their teeth about being assigned this debt, or at least giving notice. As I said, I have a letter I sent to Aqua in January, although I did not receive a reply (something to which I had become accustomed). I also emails I sent to my student union in February and April as they were advising me. I give the names and address of the DCAs dealing with my other two accounts, and state in the April email "Aqua have not written to me since June".

    I filed the AOS online that day, but did not taken any further action until Monday, after my exams had finished. On Monday, I sent a SAR to both Aqua and Lowell Portolio I Ltd. I also sent a CCA request to Lowell Portfolio, and a CPR 31 request to Lowell Solicitors, asking for copies of every document mentioned in the particulars ie: the agreement, default notice, assignment notice, and any requests for payments if they are alleged to have been sent by letter.

    I received a reply today. Lowells Solicitor say they have requested the agreement and the default notice from the original creditor. They enclose what is obviously a reconstituted assignment notice, in that it says "It is essential that all..correspondence be directed to" and then gives an address, with a telephone and email of "0". It appears to be a mail merge where something went wrong with the fields. It is not on letter headed paper, although the other documents are. The account number of this notice matches the claim, but does not match my documentation from Aqua (including my very first statement) . The other documents are a copy of the letter of claim, and 2 other letters which I suspect are the "repeated requests for payment", both dated the 11 of April.

    I am hoping my SAR to Aqua will prove they received my letter in January (and ones before it), a letter from my student union on my behalf that would have been sent April, and maybe some notes as to why they didn't bother to reply, which should go someway to showing I had no knowledge of this supposed assignment, but of course the deadline for compliance with a SAR is after my deadline for filing a defence. If Lowell's can establish they are now the creditor, I may have a counterclaim, in that, before the account was defaulted I brought something on the card that turned out not to be fit for purpose. I returned it to the shop, who refused to take it, so I took advice and was told to send it back to the head office by recorded delivery, and start a section 75 claim against Aqua. I phoned Aqua at the time and told them and I was sent some paperwork, which I returned. I didn't receive a refund so I called again, and was told they didn't receive the form I had signed, so they sent another copy, which I returned recorded delivery. I didn't hear anything from them and this was the month I was unable to make payments (about 4 months after the purchase) so I left it. Again, I am hoping the SAR has all the details because while I still have the receipt from the post office, the code no longer works on the website. I assume if Lowell's establish themselves as the creditor by way of assignment, I can make this counter claim against them?

    If they did buy this, I guessing Lowell's is going to regret it, since I am going to defend, and feel like I might have a reasonably good prospect of success, will probably counterclaim if I can, and even if it all goes tits up, I have no income or assets in any case, and latest advice I received (from step change, not the student union who seemed reluctant to advise this) is to consider a DRO or bankruptcy - the only probably with the DRO is that since I will be graduating in July if I passed my exams, there is an argument my situation will improve in the next 12 months, but in any case by the time this case is heard, I will likely to have taken some sort of insolvency action.

    I have some questions.

    1) Is the fact the agreement number is incorrect fatal to their case?
    2) What the hell are Lowell Solicitors doing filing a claim without the agreement and/or default notice? What should I do if they don't produce it by Tuesday, when the 7 days under CPR 31 expires?
    3) Can I delay filing my defence and/or counterclaim until I get a response to the SAR from Aqua, or rather, is there a way I can amend to add these details latter without having to pay for the privilege?
    4) I spoke to step-change before this claim was filed. If I do declare bankruptcy, will that include this claim?
    5) Anything else I should be doing?

    Sorry for the length of the post - I hope I included everything you need, and thanks in advance for any advice you might be in a position to offer.
    Tags: None

  • #2
    Re: Lowell Solicitors v Stupidstudent

    First Steps |

    - - - Updated - - -

    First Steps |CCA Request || CPR 31.14 Request

    - - - Updated - - -

    they can issue without agreement etc, but later they would have to supply one, enforceable/unenforceable, follow the proceedure,


    send CCA1974 to lowells with £1.00 postal order registered delivery


    send CPR31.14 request to solicitors = no charge. also registered delivery

    acknowledge on line and tick defend all no defence needed at this stage ok.?

    - - - Updated - - -

    get above done then list question as 1. 2. 3. sure others will be able to enlighten you

    Comment


    • #3
      Re: Lowell Solicitors v Stupidstudent

      Sorry if I didn't make it clear enough.

      CCA1974 to Lowells sent, received 23/5.
      CPR31.14 to solicitors - done, they replied today, details paragraph 5
      AOS done 16th of May, indicating my intention to defend all of the claim, no defence filed as yet.

      Comment


      • #4
        Re: Lowell Solicitors v Stupidstudent

        Hi & welcombe to LB.

        Approx what date did you start the agreement?

        I have some questions.

        1) Is the fact the agreement number is incorrect fatal to their case?
        Not necessarily....could be de minimus.
        2) What the hell are Lowell Solicitors doing filing a claim without the agreement and/or default notice?
        We often wonder that. Fact is, they can & they do.
        What should I do if they don't produce it by Tuesday, when the 7 days under CPR 31 expires?
        If they haven't coughed up by the time you file your defence, that becomes part of your defence.
        Same with the CCA request.

        3) Can I delay filing my defence and/or counterclaim until I get a response to the SAR from Aqua,
        Why would you want to? Any delay can only benefit the Claimant. (Gives them more time to get their ducks in a row).
        or rather, is there a way I can amend to add these details latter without having to pay for the privilege?
        Possibly. See the forum's example defence.
        4) I spoke to step-change before this claim was filed. If I do declare bankruptcy, will that include this claim?
        I don't know too much about the in's & out's of BR, so I'll give Debt Camel a nudge for you for expert advice.
        5) Anything else I should be doing?
        SAR NewDay.
        [MENTION=48934]Debt Camel[/MENTION]
        CAVEAT LECTOR

        This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

        You and I do not see things as they are. We see things as we are.
        Cohen, Herb


        There is danger when a man throws his tongue into high gear before he
        gets his brain a-going.
        Phelps, C. C.


        "They couldn't hit an elephant at this distance!"
        The last words of John Sedgwick

        Comment


        • #5
          Re: Lowell Solicitors v Stupidstudent

          Thank you for your reply.

          I started the agreement in 2012. I paid the balance in full every three months or so when I received a student loan instalment up-to 2015, when I started making the minimum payments. Mid 2016, I entered a arrangement to pay £1 a month after telling them about my circumstances over the phone. They defaulted me after 2 months of such payments, I stopped paying altogether in the next month in September 2016 when I starting to need to make applications for access to learning funds.

          The reason I was thinking about trying to delay my defence until after the SAR was that I am 100% positive Lowells did not serve a notice of assignment, but they sent me this knocked up document today in response to my CPR request. I thought it would be a stronger defence if, instead of saying "I don't admit you sent a notice, and I require you to prove it" because it is a clear they intend to produce this thing they sent me in response, I am in a position to say "You did not send a notice - and I'm going to put this evidence to the judge that not only are you lying about it, you have knocked up this in a blatant attempt to mislead the court". I know I can't prove a negative, but at the moment I can say to the judge - Look, here are all my letters I got from my unsecured creditors and the appointed DCAs, and you can see I reply, or have my union reply, to each and every one of them, I wasn't hiding. The claimants POCs say they sent me a notice in October, and repeated demands for payment thereafter, but here I am writing to Aqua in January, February and April, obviously oblivious to Lowell's involvement. It might be enough alongside the issues with the document they sent to prove it on the balance of probabilities, but I am hoping Aqua, or maybe even Lowell's themselves, might send something in response to the SAR that will help me nail them for certain. I don't believe for one second that Lowell's sent me a notice of assignment, not on letter headed paper with the letter merge fields wrong, then also sent repeated requests for payments and they all miraculously got lost in the post, and I am out to catch them out.

          As far as I know, Aqua is a trading style of NewDay, so NewDay won't have anything Aqua don't, right? I sent it to the address they gave for the data controller in the privacy policy, online.
          Last edited by stupidstudent; 25th May 2017, 21:10:PM.

          Comment


          • #6
            Re: Lowell Solicitors v Stupidstudent

            Hi Student

            I hope your finals come in as you want.
            Have you spoken to anyone at the SU, they often have people who can help. Another point to think about , if this has impacted on your performance in your final assignments/exams it might be worth talking to the SU and your personal tutor

            I am assuming you are on the new student loans I.e post 2012 , sadly these can not be written off via BR ( I suppose if they could we would all do it)
            BR will clear all your regular debts but is a serious undertaking and can impact insurance and job prospects . There is however a debt relief order if your allowable debts are less than I think 20K

            How much is the claim for?

            It is a bit naughty that they haven't followed the pre action protocols I.e getting that letter of claim to you 2 weeks before and I would mention it in your defence or if not in your witness statement

            There are a few things that could really damage Lowells chances and these are in reality , the default notice and the assignment . The recon of the agreement will probably suffice unless the agreement was pre 2007 which I doubt as it is an aqua card

            Lowell are really quite naughty sending out mail merge or other letters not completed. In one letter they sent me they said they had included a reconstituted default notice and a notice of assignment - well it seems that the lette fairy had stolen them
            . If you look at a thread of mine you will see I am some months ahead of you in the claims process


            One final point, even if it looks like you may lose you could set up a Tomlin order which would mean an affordable amount and not registered CCJ as long as you keep up payments. To be honest , maybe if this was set up at a time in between graduation and getting a job it would show you with minimal income

            Sorry a lot of info there, if you need anything clarifying just ask and I am sure one of the old farts on here will be only too happy to help
            [MENTION=87380]Diana M[/MENTION] ( No she is not one of the above ) just really helpful

            - - - Updated - - -

            Just to add, it is possible that the wrong number may be fatal but remember that when accounts are sold the new debt owner often gives it a new number.

            Some solicitors may give free initial advice and again, try the SU - you are still a member, use them

            Comment


            • #7
              Re: Lowell Solicitors v Stupidstudent

              I think you are overthinking the assignment issues, accounts are sold in massive groups which are often called non performing , as you were paying just £1 a month you would be classed as non performing ( how many years would it take you to pay it off )

              Comment


              • #8
                Re: Lowell Solicitors v Stupidstudent

                Thanks warwick. I realised I was probably overthinking things with regards to the assignment issues, and I was editing my post to take it out and answer charitynjw's point about why I want to delay filing my defence. I see you covered it, however - Ill take a read of your thread next.

                I have been in touch with the SU through out. They actually wrote to my creditors at least once on my behalf. They were, however, largely concerned with dealing with my landlord and trying to get things sorted with the student loans company. I made a complaint to the independent assessors, who very recently issued a report giving them a dressing down, pay me a small amount of compensation, and recommend they given me another years funding if I need to repeat my studies as a result of this. With regards to mitigating circumstances for my exams, I have already made a submission. To be honest, as tough as its been, these financial problems haven't really been the half of it; I was detained briefly, under the mental health act until my wife, who if my nearest relative, used her powers to get me discharged; but I missed an assignment while I was detained, so I have been awarded mitigating circumstances on those grounds.

                The claim is for a smidgen over 4k. This aqua card was the bulk of my unsecured debt. Lloyds have just decided (or rather credit security) that they will take £1 a month towards my 1.5k overdraft, thank you very much, although 2 other DCAs didn't even bother taking that, just returned the debt straight back to them when they saw the mess that is my income/expenditure sheets.

                Thanks again for your replies.

                Comment


                • #9
                  Re: Lowell Solicitors v Stupidstudent

                  I am glad you have got the SU involved and have given SFE a kicking, i had problems this year as well .

                  If i can be of help , shout. I hope you graduate without having to redo a year

                  Sounds like you have had a rotten time

                  Comment


                  • #10
                    Re: Lowell Solicitors v Stupidstudent

                    I spoke to step-change before this claim was filed. If I do declare bankruptcy, will that include this claim?
                    yes, any claims or CCJs for consumer debts are included. Did StepChange recommend bankruptcy? How large are your total debts excluding student loans?

                    Comment


                    • #11
                      Re: Lowell Solicitors v Stupidstudent

                      Thank you all for your replies.

                      Today, I received replies to my SARs from Lowell Solictors and Aqua.

                      Firstly Aqua, who sent me a very short letter which says "I can confirm that the letter included in your correspondence is invalid, and as such I am unable to deal with this request". They did not return the £10 postal order I included. I assume I go straight to the ICO with that one.

                      Secondly Lowells. Despite addressing the SAR to Lowells Portfolio I Ltd, Lowell Solicitors replied, including just the copies of the correspondence they sent in response to my CPR request and a screenshot of a computer screen with my name and address and 3 notepad entries detailing receipt of 3 letters - my CPR request, my CCA request and my SA (addressed to Lowell Portfolio as explained). Clearly, I addressed the SAR to their clients as I was interested in the data they held relating to period before Lowell Solicitors got involved. Should I also complain to the ICO about this, or reply and give them a chance to sort it out?

                      I note that the notepad entry states my CCA request was received 30.05.2017, but the post office has it delivered on 23.05.2017. It too was addressed to Lowell Portfolio - obviously, both have been forwarded to Lowell solicitors and took a week to arrive.

                      In answer to debt camel, StepChange advised that I would be eligible for a DRO but for the fact that might circumstances might significantly improve in the next 12 months. I have about 12k total debt, not including the student loans, which according to my last statement, are now an eye watering 90k (I have both plan 1 and plan 2 loans after an aborting attempt to study at a different institution in 2009).

                      Comment


                      • #12
                        Re: Lowell Solicitors v Stupidstudent

                        Re the SAR, are you saying that they refused to send any details whatsoever?
                        If so, did they give a good reason for the refusal?
                        Just stating 'invalid' is unlikely to be a good reason.
                        CAVEAT LECTOR

                        This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

                        You and I do not see things as they are. We see things as we are.
                        Cohen, Herb


                        There is danger when a man throws his tongue into high gear before he
                        gets his brain a-going.
                        Phelps, C. C.


                        "They couldn't hit an elephant at this distance!"
                        The last words of John Sedgwick

                        Comment


                        • #13
                          Re: Lowell Solicitors v Stupidstudent

                          Yes, they refused to send any details, and the reason they gave was 'the letter was invalid'. My letter was the standard template, I enclosed a photocopy of my passport and the postal order for £10, so I have no idea why it was 'invalid'

                          Comment


                          • #14
                            Re: Lowell Solicitors v Stupidstudent

                            Can you post up what you sent to Aqua?

                            Yes a complaint to the ICO is in order

                            Even something like

                            As provided for under S7 DPA 1988 http://www.legislation.gov.uk/ukpga/1998/29/section/7

                            Please provide me with all information in any format you hold on me. If you need to further confirm my identity please inform me what you require

                            I can not believe they have said that.

                            i am tempted, if you do post the copy to send a SAR myself using the same template and see what they say - or have I had one Vodka too many ?

                            Comment


                            • #15
                              Re: Lowell Solicitors v Stupidstudent

                              Thank you for the replies, and apologises for the late reply. As you suggested, I contacted the ICO to make a complaint, but the adviser on the telephone line suggested I contact Aqua first and ask them what the problem was first as the 40 day deadline as still ticking. I did so, and apparently "the letter" that was invalid wasn't the template letter, but a copy of utility bill I sent with the copy of my passport to help them with regards to my identity, since it was a few days older than 3 months when I sent it in. After relaying some choice words from the second helpful lady I spoke to at the ICO helpline, pointing out that they wrote to me at the very same address Aqua have now agreed to proceed with my SAR, with the deadline ticking from my original request. I am to follow that up with letter and make a formal complaint if I don't see anything within 40 days. I am also advised to likewise phone Lowell's, but I've decided to just write to them instead.

                              In any case, Lowell is, by my reckoning, now in default of my CCA request. I'm planning on submitting my defence on that basis, but I would like your advice on whether or not I should also be setting out my defence at this stage if they do at some point come up with the agreement. I am confident, even if they produce a valid agreement and default notice tomorrow, I have enough to prove the case on the balance that the debt was not assigned, or at least that notice was not given - I have the dodgy reconstituted notice they sent in response to the CPR34.1, I have the letters to Aqua and the students union showing I was labouring under the impression that Aqua still own the debt upto the date the claim was issued, the wrong agreement number, and Lowell response to the SAR (which interestingly, enclosed everything they ever sent me apart from the notice of assignment) not having any date earlier than 24th March, which appears to be the first time Lowells had anything to do with this.

                              So, should I be writing to Lowells, telling them they are now in default and ask them to supply or discontinue? [I've seen responses to other threads suggesting this is a bad idea, and why prompt them, but the template defence has reference to asking the claimant again on X date]; or should I be filing my defence now, and if so, do I set out my defence as outlined above or rely solely on the failure to comply re: CCA?

                              Thanks again for your help.

                              Comment

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