Apologies - i don't want to bump for no reason as I kow there are many people on here wanting help but I only have a few days left to file a defence to get the SD set aside. I have a a defence outlined further up but I really wanted to know if it would hold water and also get some suggestions. Many thanks BMF

okay - thanks for the comment I'll amend. I also recall someone mentioning (on another thread) about strict proof of recepit of DN & Assignemnts - but i can't fine the link to the statement for a SD defence - can anyone point me or cut & pate please? Thanks BMF

I've been mulling this over now for a few days - my gut instinct is that this is just a threat-o-gram from Hamptons but i'm unsure if i want to risk seeing if they would do anything else i.e. stump up the £1500 to make the petition. I have a few days left to file for for a set aside and i have cobbled togther (from other threads on here) the following - if I could get some comments back on it's suitability that would be great. (as yet i have not sent for a SAR or CCA request but will if needed). My afadavit will read. The defendant totally disputes the debt. The alleged creditor has provided no consumer credit agreement with the prescribed terms. The alleged creditor has not provided any default notices in the prescribed form. The alleged creditor has provided no statements for the duration of the account. The alleged creditor has not provided any notices of assignment. The alleged creditor has not sent me a letter before action. REFERENCE TO CASE LAW As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that: ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’ SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40 THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT The law states that without a prescribed agreement the courts may not enforce under 127(3) and 1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:- “Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.” 2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:- “The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;” I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29 ” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.” If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the bankruptcy petition was issued. DEFAULT NOTICE The Need for a Default notice Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition. It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237) Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974 Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119 The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956]. The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169 The alleged creditor has not 'served' anything on me, but simply posted a demand through the letterbox - I believe that this is a frivolous attempt at scaring me into paying and therefore an abuse of the process. I refer to: Judge Boggis QC - RE AWAN - [2000] BPIR 241 'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON. As a part time earner with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court. I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount. In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:- Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:- 27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

sorry - one more thing that has popped into my head, this thing was not served at my home address - what would happen if my father just posts it back with 'not at this address' on it? BMF

Almost forgot - the document does mention a court and it's address but no reference. I have seen conflicting opinions on this - some people have said unless it is stamped it's a fake but other people have said it does not need a stamp as it can be done outside the court process. Can anyone clarify ? Thanks again BMF

I've never received anything off these guys, no assigment or demand. They only bought the debt a few months ago and it looks like they have just jumped straight in with a SD. They may think there is equiety but the house already has a substantial charge on it from my father who lent me a third of the value at the height of property prices. We used a solicitor to draw up the loan and it was secured against the property. The net effect is it's in technical negative equiety. I understand the baiscs of applying to set it aside but i'm concerned with what happens next. will they start from scratch? If I face the SD down and they do move to petion for bankcrupcy would i be able to put that aside due to the incorrectly served SD - if they did go for it they would find them selves at the back of a long line and with a very small percentage of the not a lot. In the meantime can anyone point me towards a template or set of reasons for setting the sd aside. Based on served not at my address and no prior communication, notice etc... Cheers BMF

I think the scanned file should now be attached to this post. MODS - if i have done this incorrectly or if in your opinion there is data there that will reveal too much then please remove it. I look forward to your, ever helpful, comments. BMF HAMPTONS SD.pdf

You must have read my mind - i've just scanned it. I'll remove the personal stuff and then post it - i think most people use photo bucket - is that right? BMF

Thanks for that correction - i felt it strange i could find no posts from him. BMF

Many thanks for your replies so far. I can't see any court reference on the forms just there own reference. In Martin's post he mentioned it would be dangerous to ignore, but it does look to have been served improperly - would this consitute a defence if they then tried to take it further? My concern is if i move to get this 'sd' set aside would i then be opening myself up to lowells who may then bombard me with letters and threats. If this letter has not cost them anything to produce i.e. no court costs then it may just be an attempt to scare me into submission (they have obvioulsy have not met me!) The next step would mean them coughing up £1100 (i understand) and moving to a bankrupcy petition - have they actually done this to anyone on here yet? I'll seek out Man 24's post as suggested in the meantime. Cheers BMF

Hi everyone, I have received (not posted but pushed into the unlocked outside porch) a stat demand from Lowells with cover letter from Hamptons. I've looked around the forum and can see that this is now a common tactic from DCA's to pile the pressure on. The debt is 4K+ and is from a cap one card from a couple of years ago. From the date of the last payment till this letter has popped through my Fathers door (i don't live at the address but I am on the deeds) i've had no communication from them. I understand I can attempt to set the SD aside but i wondering if it's real or fake. It is not stamped from a court and looks like a downloaded form (form 6.1) printed out. it has my name and my fathers address, they list lowell portfolio as the creditor. In the part A section they have listed a county court which is in the next town to me (i.e. not the couty court for my area - not sure if thats important ot not). part B is their details and then Part C. shows a date from just a few months ago when the alleged debt was sold from cap 1 to lowell. So my question is - is this just a threat or do i need to take steps to get it set aside. The letter and sd are dated from over a week ago. I think my ground for setting it aside would be the no corresopences and not notice of termination or assigment - can somebody offer me some guidence here please? Many thanks BMF

i have listed the particulars of the claim in my first post - should there be more or are you asking about the background of the case? I can see Paul has provided an excellent template for me to use - i think i was expecting to see more about the facts of no prior default notices etc.. received. I'm guessing that must come a bit later on. I'm not stressed about defending but the timing could not be worse - i leave to go to the states in a weeks time for 3 weeks for a work project. That's slap bang in the middle of when i should recieiving replies!!! Once they get a defence are they likley to still pursue the current claim or will they back off due to their lack of following due process - i know it would be a guess - i just wondering if anyone had been in a similair position. Cheers BMF

Many Thanks Paul for the reply - I pm'd a MOD last night to move the thread to the Legal section (where i think it would be appropriate) - Hopefully someone will move it across soon. I had thought that you could not pursue a case under the CCA1974 if you had not followed procudures including proving that a default notice etc... had been correctly served. Can I assume that at some point i will be requesting proof from RBS that they have followed due process? Or will i be looking for 'dodgy' notices etc... Cheers BMF

Sorry - I shouldhave added that the account was opened in 2000 and i think the loan was 2006 but not too sure. Betamaxfan

Hi, I'm hopring somebody can assist me with this, RBS have issued court proceedings to recover an overdraft and loan from me. I have had no default notices or termnation notices before this, althought i have moved house since i had the problems a year ago. I had a current account with them and a 15K overdraft as well as a loan (orignally for 10k) which stood at about 7k. They are claiming a total of 23k by lumping both sums together and adding £360 for the court costs and £100 for the solicitor. They are claiming repayment back under the consumer credit act 1974. In their particulars they have claimed to have complied with Parts III and IV of the Pre Action Conduct Practice direction (?) and that a default notice has been servered (i have had nothing). The acting solicitor is Shakespeare Putsman LLP. I could do with a hand filling a defence for this !!! Thanks Betamaxfan