Asbestross vs Lowell Group

Asbestross

Hey all,

Ok here goes. Have an ongoing saga with Lowell Group which I thought I would share, as I forsee this going to court in the near future. Run down of events as follows:

At the beginning of september, having checked my credit file with all three CRA's, I became aware of a defaulted account registered by Lowell Portfolio I. Started xx/04/2009, Defaulted xx/03/2010 for the sum of £19x, current balance £30x. Quite concerned I immediately sent a prove it letter, recorded delivery. Waited a week and no acknowledgement, just a continual barrage of threatening letters advising from Red / Lowell Financial / Lowell Portfolio. Within the first week of me sending this prove it letter, I had 8 threatening letters in total.

So at the middle of the second week in September, I sent them a copy of the prove it letter, as well as a formal CCA Section 77/78 request - again, recorded delivery. This was acknowledged by Lowell in the form of an email from their complaints department 11/09/2012.

Over the course of the following three weeks, I had continual letters from Red threatening court action. One letter I have states that 'the next correspondence you will receive will be in the form of an agent personally handing you a Statutory Demand, and following this we may file for bankruptcy'. All letters ignored obviously.

Received, on 03/10/2012 a copy of what Lowell claim was a reconstituted executed credit agreement which I would have signed with Shop Direct prior to being granted credit. Two documents.

The first document, was dated xx/10/2008, contained my name and address, no signature. So this document was dated some two-three months before I actually moved into the property. Six months before the start date of the account on my credit file also.

The second document, contained no personal details, and was dated xx/05/2010. Some two months after the defaulted date listed within my credit file.

No statement included, no Notice of Assignment, no copy Default Notices. So, I immediately emailed the complaints department, as well as sent a letter stating that these documents do not imply a reconstituted agreement for the reasons above, also that I have not received any other documentation which they are required to provide. As such I considered my Section 77/78 request unfulfilled. This was 03/10/2012 22 calendar days after my 77/78 request.

As yet, I have had absolutely zero responses from Lowell. No acknowledgements, no letters, no further contact and they are now refusing to discuss this account with me even on the telephone (I know I shouldnt have called, but felt like reminding them of their obligations under the CCA).

A further letter was sent to Lowell's last week, stating that unless within 7 days they either provide the required documentation, or remove all my personal data from their files and remove all information from within my credit files then a county court claim will be issued to have Lowell present their evidence in court. Again, this was ignored. I've had zero responses.

A formal complaint was sent to the ICO, OFT, Trading Standards over the weekend also. Still waiting on an acknowledgement in light of these, but i'm sure they will come in due time.

So, as it stands, Lowell are maintaining a defaulted account within my credit file, refusing to provide proof that this account is ligitimate, and refusing to enter into any correspondence with me, despite numerous reminders that they are in breach of Sections 77/78, Sections 88 of the Consumer Credit Act as well as numerous sections of the Data Protection Act for processing and handling my data with no authorisation (No Notice of Assignment).

I have set a reminder for the 22nd October, that if nothing else is heard I will send a copy of the N1 form to Lowell to give them a slight prompt, and 7 days of no response from there the claim form will be submitted. So may need a little help with the PoC's if possible around that time.

Unbelievable, that they are so willing to just bury their heads in the sand and ignore me completely. Especially when I have made it perfectly clear that if they dont make adequate steps to amicably resolve the situation, I will take this to court.

...and I will take this to court if necessary.

Apologies for such a lengthy thread, comments, feedback or questions are welcomed as always.

Asbestross

fermi

http://e-sue.co.uk/docs/Lowell_Claim.pdf

http://www.e-sue.co.uk/docs/lowell_judgment.pdf

Asbestross

Thanks Fermi, some great literature there. I'll definately be using a lot of that as it certainly applies.

Will of course keep you all updated with feedback as available,

Asbestross

Just an update in relation to this, OFT had acknowledged and logged my complaint against Lowell Group. Another black mark against their record.

Consumer Credit Act 1974 (the Act)
Complaint Against: Lowell Portfolio I Ltd, Shop Direct Home Shopping Limited trading as Shop Direct
Licence No: 0544015, 0535858

Thank you for your email received on 13 October 2012.

I can confirm that the business you mention holds a consumer credit licence. Under the Consumer Credit Act, holders of consumer credit licences must be fit and competent to do so and the Office of Fair Trading (OFT) has a duty to monitor the fitness and conduct of all traders who hold such a licence.

The OFT has issued guidance to consumer credit licence holders engaged in the debt collection industry. The guidance is intended to ensure that debt collectors treat individuals fairly. Non-compliance with this guidance will call into question the fitness of licence holders and applicants. You can view our guidance at:www.oft.gov.uk/advice_and_resources/resource_base/legal/cca/debt-collection

We have therefore recorded the details of your complaint, and we will consider this alongside any other complaints we have received with a view to any consumer credit licensing or other action we may decide to take. If we do take any action against this trader we may need to contact you again in the future. Unfortunately, we cannot disclose any details about any action we may take, due to legal restrictions on the OFT relating to disclosure of information.

While we are very sorry to hear about the difficulties you have been experiencing, the OFT has no authority to become involved in individual disputes between consumers and traders so we cannot advise you directly in this matter.

The Financial Ombudsman Servicecan help with most complaints about consumer credit products and servicesif the consumer has failed to satisfactorily resolve the matter directly with the consumer credit licensee itself.The Financial Ombudsman Service can be contacted at:

The Financial Ombudsman Service
SouthQuay Plaza
183 Marsh Wall
London
E14 9SR

Telephone: 0800 0234 567

With regards to your concern on your credit reportthe Data Protection Act 1998 (DPA) requires data relating to individual’s credit files must be accurate, relevant, held for a proper purpose and not out of date. If you feel the information on your credit file is wrong, then the quickest way to have it altered or updated is to contact the lender concerned.

For more information about credit reference agencies and the DPA you may wish to contact the Information Commissioner's Office [ICO] at the address below.

The Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

Tel: 01625 545 745

The OFT has published a consumer guide about debt collection which you may find helpful. The guide can be viewed on the OFT’s website: http://www.oft.gov.uk/shared_oft/consumer_leaflets/credit/oft1299.pdf

Thank you again for writing to us and bringing this matter to our attention.I hope the above is helpful.

Yours sincerely

Still waiting on any kind of correspondence or acknowledgement from Lowell. They're maintaining the 'silence will get us paid' stance it would appear... :undecided

FireWyrm

I can't help you much, only sympathise.

These companies must be getting sick of this site and all it represents because day in day out, we are advising on consumer rights, regulations and how to deal with these sharks. It strikes me that this is a clearing error of omission on the part of the government that there is so much legislation out there to help the consumer and yet, it is incredibly hard to get to that information in any sensible way. What I don't understand is why the likes of Lowell who garner complaints left and right have not yet been pulled up and fined for continuous breaches of the law.

fermi

Usual response from the OFT.

They don't act on your individual case, but they do add it to the evidence pile on these sharks and it will get used in any investigation they are doing on them or may do.

Asbestross

Quick update, Lowell have responded via email as below:

[FONT=&quot]Our Reference: xxxxxxxx[/FONT]
[FONT=&quot]Original Creditor: Shop Direct[/FONT]

[FONT=&quot]Dear Mr ME[/FONT]

[FONT=&quot]Thank you for taking the time to contact us again and I am sorry to learn that you remain dissatisfied with our responses to your concerns raised. [/FONT]

[FONT=&quot]My understanding of your complaint, as outlined in your correspondence of x, xx and xx October respectively, is detailed below:[/FONT]

· [FONT=&quot]You do not acknowledge ever signing a credit agreement with the original creditor Shop Direct. [/FONT]
· [FONT=&quot]You believe that the documentation supplied is not a reconstituted agreement, as the date stamp pre-dates the open date and the second part does not contain any of your details such as name and address. [/FONT]
· [FONT=&quot]You have not been provided with a notice of default prior to the entry being registered on your credit file.[/FONT]
· [FONT=&quot]You have not been furnished with statements of the account, notice of default and the letter of assignment, and the absence of the latter constitutes a breach of the Data Protection Act as Lowell Portfolio I Ltd are unlawfully processing and storing your data. [/FONT]
· [FONT=&quot]You do not believe Red Debt Collection Services is listed on our Consumer Credit License as a trading name.[/FONT]
· [FONT=&quot]You feel that the letters received from Red Debt Collection Services are aggressive and threatening.[/FONT]
· [FONT=&quot]You feel that Lowell Portfolio I Ltd are abusing the rights granted to them under their consumer credit license.[/FONT]
· [FONT=&quot]You would like details of how to make a Data Subject Access Request (DSAR) with us and Shop Direct.[/FONT]


[FONT=&quot]I would like to begin by apologising for the delay in responding to your concerns but I can confirm the account was placed on hold whilst we carried out a further review following our initial response and your continued dissatisfaction. [/FONT]

[FONT=&quot]The account in question was opened in the name of Mr Me, date of birth showing as the xxxxxxx and taken out at xxxxxxxxx.[/FONT]

[FONT=&quot]Beginning with your statement that you did not sign a credit agreement with Shop Direct, I can advise that this account was opened online and therefore a handwritten signature would not have been necessary to obtain the credit agreement; during the online application process, the customer is asked to tick a box to confirm that they wish to proceed with the agreement and that they consent to Shop Directs terms and conditions. Failure to give your consent in this manner would result in the inability to proceed any further with the application. Furthermore, I would like to clarify that accounts opened over the internet are subject to The Consumer Credit Act 1974 (Electronic Communications) Order 2004 which came into force on December 31st 2004. [/FONT]

[FONT=&quot]The documents required to be supplied in relation to a request made under section 77/78 of the Consumer Credit Act 1974 have been the subject of a legal test case: Carey v HSBC Bank PLC [2009]. In this case it was held by the High Court that to comply with a section 77/78 request:-[/FONT]

[FONT=&quot]1. [/FONT][FONT=&quot]The original signed agreement need not be supplied, as a reconstituted copy of the agreement is sufficient provided it contains the name and address of the person as it was when the credit agreement was signed; and[/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]If the terms and conditions of the credit agreement have been varied following the date it entered into then a copy of the last varied terms should also be supplied.[/FONT]
[FONT=&quot]We have sent you a copy of the reconstituted original agreement which details your name and address but these details will not feature again on the second document as its sole purpose is to provide you with a copy of the last varied terms and conditions relating to the agreement. I would like to make it clear that the dates on the bottom of the documentation do not reflect when the account was opened but capture the date from which that version of Shop Directs agreement and varied terms were first introduced into their business, though this does not mean this was the date they applied to your account specifically. It is correct to state the account was opened on xx April 2009. I must respond that we strongly object to your statement that this documentation has been fraudulently produced or in any way inappropriately altered and we are satisfied that it meets the requirements of a section 77/78 request.[/FONT]

[FONT=&quot]I must stress that a default notice is a one off document that cannot be reproduced as an account can only default once and therefore notification of the account entering default status can only be given at that time. Given the above, I am unable to forward you the default notice as you have requested; however, it is worth noting that I have been advised that the document was issued on xx xx 2010 and sent to xxxxxxxxx, which Shop Direct held on their records as your address at the time. Therefore, I must respectfully advise that the correct course of action was taken by the original creditor at the time the account entered default and the information available to us confirms that the required notification was sent to you at the time. [/FONT]

[FONT=&quot]I have attached a copy of the reconstituted credit agreement and varied terms, which we have previously sent to you, as well as a statement of the account. Section 136 of the Law of Property Act 1925 requires Lowell to give you notice of the assignment (copy attached) of the debt to them from Shop Direct. Our records show that our letter of assignment was sent to you on xxxxxx 2010 to xxxxxxx and xxxxxxx 2012 to xxxxxxx following the purchase of the debt from Shop Direct, which satisfies the relevant provision of the Law of Property Act 1925.[/FONT]

[FONT=&quot]I note your comments that Lowell Portfolio I Ltd have breached the Data Protection Act by failing to provide a letter of assignment, therefore unlawfully processing and storing your personal data, however, I must respectfully disagree that this is the case. Firstly, the letter of assignment was provided to you as detailed above. Secondly, at the point of purchase of the rights and benefits associated with this account from Shop Direct, Lowell Portfolio I Limited became the data controller in respect of this matter, as defined by the Data Protection Act, replacing Shop Direct. When you applied for this account you agreed to a Fair Processing Notice which provided Shop Direct with your consent to obtain and process your personal data. Consequently, when Lowell Portfolio I Limited purchased the rights and benefits of the account, this included the Fair Processing Notice and the requisite permission to process and store your personal data.[/FONT]

[FONT=&quot]I can confirm that Red Debt Collection Services is a trading style of Lowell Financial and is represented on Lowell Financials Consumer Credit License. Therefore, we are not in breach of any regulations or guidelines issued by the Office of Fair Trading. [/FONT]

[FONT=&quot]It is naturally disappointing that you feel letters sent to you by Red Debt Collection Services are aggressive and threatening, as it is certainly not our intention to cause our customers any undue concern or distress. All of our letters are written in accordance with the standards required by the Office of Fair Trading’s Debt Collection Guidance and the Credit Services Association’s Code of Practice. The tone of the letters in question is carefully considered and intended to convey the seriousness of the matter and to reflect the fact that we have been unsuccessful in our attempts resolve the outstanding balance. [/FONT]

[FONT=&quot]Turning to your statement that Lowell Portfolio I Ltd are abusing the rights granted under our consumer credit license, again I would like to apologise that you feel this is the case; having reviewed our conduct in its entirety since we purchased the account, however, I do not agree that we have acted inappropriately in relation to our license and we will vigorously defend ourselves from any future allegation to the contrary in relation to this matter.[/FONT]

[FONT=&quot]If you would like to make a Data Subject Access request, please write to us confirming this wish and make clear your request is made under section 7 of the Data Protection Act 1998. Please accompany this request with a cheque for £10 which represents the statutory fee applicable to such a request. If you intend to make the same request of Shop Direct, please contact their Customer Excellence Team at [/FONT][EMAIL="customerexcellence@shopdirect.com"][FONT=&quot]customerexcellence@shopdirect.com[/FONT][/EMAIL][FONT=&quot] for further details on how to proceed with this. [/FONT]

[FONT=&quot]Having concluded my investigation, I believe we have satisfied our obligations in terms of providing supporting information and a thorough response to your concerns. Based on the information provided I trust you will understand that all of the information currently in our possession, and which we have shared with you, supports that this is a valid debt requirement repayment. In order to allow you sufficient time to review our response and provide any additional information, I will place the account on hold for 28 days. Please be advised that if we do not hear from you within this time your account will be returned to our Collections Department.[/FONT]

[FONT=&quot]I believe I have fully answered your complaint, however if you would like to discuss things further please do not hesitate to contact me 0800 542 0058 or write to me at the address below. If I do not hear from you in the next couple of weeks, I will consider the matter closed, but this does not prevent you from coming back to us after this time. [/FONT]

[FONT=&quot]The Financial Ombudsman Service (FOS) provides a dispute resolution service to assist customers who feel their complaint remains unresolved. You have a right to use this service for up to six months from the date of this letter. For more information please visit the Financial Ombudsman’s website using the following hyperlink: [/FONT][FONT=&quot]http://www.financial-ombudsman.org.uk/publications/consumer-leaflet.htm[/FONT][FONT=&quot]. Naturally we hope that you will not feel the need to do so.[/FONT]

[FONT=&quot]Should you require a paper copy of this leaflet, please let us know and we will arrange to send one to you.[/FONT]

[FONT=&quot]Yours Sincerely[/FONT]

Asbestross

My response, comments appreciated as always:

Dear x,

Thankyou for the response, contents of which have been duly noted.

1> Firstly I take note to your comments in relation to The Consumer Credit Act 1974 (Electronic Communications) Order 2004. You will be aware that this amendment to the act explicitly refers the electronic transfer of documentation in relation to a regulated agreement, in no sectional amendment included within this order does it imply that a 'reconstituted' agreement is legally binding, purely that the transmission of documentation via electronic means is deemed adequately served when sent via electronic form. As such, I challenge you to provide the relevant section which clearly defines this.

With regards to your reference of the test case Carey vs. HSBC, I am fully versed with this case and must point out several factors relating to this case which as yet you have failed to realise.

• The Carey case has clarified that the court has the power to declare whether there has or hasn’t been a breach of section 78 and each case will be considered on its own facts. This test case does not outline that failure to provide a signed credit agreement, unequivocally rules for or against a section 78 breach;
  
• The Carey case also made mention that the inability to produce a verified copy of the executed agreement, does not imply unenforceability where clear evidence is available that credit or goods have been provided. As yet, you have failed to clearly show that credit or goods have been provided. So, until the time at which you are able to provide such information, this account will remain in dispute.

2> I now take note of your comments in relation to the alleged agreements which you have resent. The first, alleged agreement, regardless of what internal process may have been followed by Shop Direct, contains a date which is over 4 months prior to the alleged date of this account being opened, as the footnote of these document contains a date as well as the account reference relating to this account, it is construed that the date directly applied to the specific agreement and not the date at which this version of the terms was introduced within Shop Direct. Whilst I appreciate your clarity and confirmation that this alleged account was opened xx April 2009, neither document reflects this date, and as such the first document is not in any way, representative of a reconstituted agreement. The second document which you claim is a varied terms document, is dated after the alleged default date for this account. Once an account is terminated as per sections 87,88 of The Act, no further variation of terms can be entered into. As such this document is also not accepted.

3> In reference to your comments in relation to a Default Notice, I refer you to section 87 Consumer Credit Act;

Need for default notice.(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—
(a)to terminate the agreement, or
(b)to demand earlier payment of any sum, or
(c)to recover possession of any goods or land, or
(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e)to enforce any security.
(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.
(3)The doing of an act by which a floating charge becomes fixed is not enforcement of a security.
(4)Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.
[F1(5)Subsection (1)(d) does not apply in a case referred to in section 98A(4) (termination or suspension of debtor's right to draw on credit under open-end agreement).

As per your own admission, you are unable to provide proof that this document was served. This has been duly noted. Your belief that a Default Notice was correctly served is in no way evident that sections 87/88 of The Act have been adhered to. As such the account in question was unlawfully terminated and will remain so until you are able to provide documentary evidence, in the form of a verified copy default notice and proof of posting.
I must remind you that queries made by the relevant Credit Reference Agencies to Lowell Portfolio I, have resulted in acknowledgement that all necessary documentation is available. Failure to provide a copy Default Notice, also suggests that your conduct and communication to both Experian and Equifax was dishonest. Copies of your correspondence giving clear admission that you are unable to provide evidence that sections 87/88 have been adhered to, will be sent to both Experian and Equifax in light of this.

4> I now must refer to your statement in relation to any Notice of Assignment. I must point out that the Notice of Assignment which you have included shows assignment to Lowell Portfolio I Ltd, Consumer Credit Licence 0544015. Therefore your comments that Red Debt Collection Services is a trading style of Lowell Financial is irrelevant. Within your Notice of Assignment, this states that all legal rights to this alleged debt has been assigned to Lowell Portfolio I Ltd, not Lowell Financial.
As such, please provide to me a copy of the Notice of Assignment from Lowell Portfolio I, to Lowell Financial. Both Lowell Portfolio I, and Lowell Financial are two seperate entities as defined by differing Consumer Credit Licence numbers as well as differing Company Registration numbers. Your failure to provide a Notice of Assignment prior to processing my personal data by Lowell Financial / Red Debt Collection Services is a direct breach of the Data Protection Act, as clarified in my recent discussion with the Information Commissioners Office. If you have any doubts as to the legal process in respect of this, I advise you to seek legal counsel in respect of your rights relating to the Law of Property Act 1925.

5> With regards to your comments in relation to the conduct of Red Debt Collection Services. I have attached a copy of the letter for your perusal, this letter is in direct contravention of the standards required by the OFT guidance and Credit Services Association's Code of Practice. I must point out that a Statutory Demand is only viable where a debt is of the sum of £750 or greater, as such this letter is in direct breach of the OFT Debt Collection Guidance, sections 2.2, sections 3.1, sections 3.3(b), sections 3.5(b), sections 3.7(e).

6> Finally the document which you have enclosed with your email in no way represents a statement of account. For clarity, a Statement of Account must clearly detail all financial transactions that are conducted on an account, including any charges / interest which may have been applied, as well as credit provided. This document contains no breakdown of the amounts which you claim are owed under this alleged agreement and as such is not accepted. This document, I may add, details charges of £1xx. I expect a full breakdown of what these charges relate to, as well as a full breakdown of the goods ordered, including Proof of Delivery.

In conclusion, I hope that I have helped to clarify the situation by clearly detailing the mistakes and unlawful actions as set out above. I will be raising a formal complaint to the Financial Ombudsman Service due to your failure to provide the correct documentation as detailed within my original Section 77/78 request and in light of your own admission that a copy Default Notice cannot be provided. All documentation provided and received will be submitted as evidence to the Financial Ombudsman Service.

I will allow a period of 7 days from today, for acknowledgement of my complaint to the FOS, and will be serving a Subject Access Request upon Shop Direct. Upon receipt of this documentation, I will take appropriate action.

If you wish to discuss this further in the meantime, please feel free to contact me.

Yours Faithfully

little old me

fermi

You said in a previous thread that this was not your account and that you had never opened it.

Because of that, one thing I would stress beyond anything else is do not get too involved in technical discussions and disputes over what can or should be provided under a s78 request.

It is a blunt tool when it comes to requesting proof that you owe something, and although they should not reconstitute an agreement unless one originally did exist that you actually took out, the technical arguments on the "get out" of reconstituting can tie you in knots a make you lose focus on the fundamental issue of "proof".

You want "proof". A reconstituted agreement can never be adequate proof, no matter what they cobble together.

You did not take out the debt or account. So by definition, there is no sufficient proof that Lowells or Shop Direct could possibly have.

In fact, by supplying a recon and claiming that this is "proof" of the debt, Lowells are being deceitful.

You did not take out the debt. The default is not yours.

You have disputed both, and Lowells have only produced inadequate and deceitful responses and not offered any real proof (because none exists).

That is the fundamental dispute/complaint.

I'm sure you are aware of the above, but I say it more for other people reading.

If the debt is in fact not yours, it's usually best to just dispute outright. Making CCA requests and getting tangled in the issues surrounding those can distract you from the real issue. Plus they do tend to make debt collectors just think the debt is yours, but you are simply trying to avoid it on a technicality.

Asbestross

I couldnt agree more, and do agree it does seem to take focus away from the ultimate fact that this debt is not mine. I just want the invalid account removed from my file.

The problem I've faced here is that I put Lowells to prove that it was my debt, they just threw the account number at me and claimed this was all the proof they needed, refused to budge one inch. Further requests for evidence then resulted in the CCA request being served.
I know that its not my debt, but all claims to that effect fall on deaf ears hence the long winded attempt to prove it via lack of documentation.

fermi

Also useful to read.

http://news.bbc.co.uk/1/hi/programmes/moneybox/8098674.stm

With Dr Mike Thompson's thread here:

When false debt chasing becomes defamation - Aktiv Kapital