I did send a SAR early on, but they didn't even produce the contract... just now they are sending a reconstituted one. So in close inspection, I realised that this was the document it came with the new Barclays card when they took over. So they won't have a copy of a signed agreement from me, and neither that one is a true copy of what I originally signed, if I ever did. I think I applied for that card online...

Hi Just realised, thinking back and looking for clues on my records, that I actually my card was originally taken with Goldfish, who were taken over from Barclays... I can't seem to find any records, though, as we discarded anything older than 2005 on our last move... Is there any way I can find out about my original account? Would Barclays have the info if it was an account they acquired then?

They have produced a reconstituted agreement that shows my name and address, and the T&C. I think the judge might have been satisfied with that because she actually stayed the petition... Order reads: AND UPON the Court determining that the service of the statutory demand and petition are good and permitting the enforcement of the original agreements under section 78 of the Consumer Credit Act 1974 IT IS ORDERED THAT at the adjourned petition unless the Petitioning Creditor provides evidence acceptable to the court of the assignment of the original of the sending debt to the Petitioning Creditor and evidence of a correct Notice of Assignment having been sent, the petition will be dismissed

Thanks. Is there any other way they can convince the court if they dont' have the deed? any other docs? I just want to understand and be prepared for what it might come...

Hi all, I'm going back to court for the petition hearing next week. The previous order states that unless Lowell provides the below, the petition will be dismissed: 1. Provide evidence acceptable to the court of the assignment of the original of the sending debt to the Petitioning Creditor and 2. provide evidence of a correct Notice of Assignment having been sent I would like to know what sort of evidence would be court expect to see... Is that just a Deed of Assignment and a copy of a Notice of Assignment? What details should I be checking – if these are put forward – to verify they are valid? Many thanks

Dear all, I have some great news, the BANKRUPTCY WAS ANNULLED! I went along to the hearing with my wife, no lawyer, and with the fantastic defence all at CAG helped me to put together, the annulment was overturned. Details as follows: 1. The order was overturned due to the inconsistencies in the Notice of Assignment. It seems they filed copies of these presumably sent to me (I've never seen them!), and there were 2 of them. One stated that Lowell Financial had bought the debt, the other one that Lowell Portfolio had. They both have the same date! 2. Further to that, they filed a new witness statement with a copy of a reconstituted contract and a letter of compliance from Barclays which states that my account (with Barclays) has a due balance of £3,600 (the amount claimed by Lowell) 3. On this basis, the judge decided it was not clear who actually owns the debt and that Lowell should provide a copy of the Deed of Assignment. 4. Even if the bankruptcy was stayed, they needed to prove the debt to the official receiver, and without the deed, it seems would have been a lost case for them... It was decided, though, that because the SD and Petition are deemed correctly served (my wife got them), that the petition is stayed, so I need to come back in 4 weeks to fight the last battle. I am counting that they won't produce the Deed, but if they do, is there anything else I can hold on to? Thanks to all again. Although this is not quite over yet, I feel hugely relieved. I have learned so much and hope I can be of help to others.

Well, in view of the annulment hearing next week, I wanted to gather some advice as to whether I should bring a lawyer along... I think my defence is very thorough, but as I've never been in court before I am unsure of the protocol. Shall I get a lawyer to come along and where to find one at short notice! I'm in North London...

I am in the exact same process, except that my start date is October 2008. Does that mean that reconstituted is valid and need to start paying them?

As a matter of update, I had a review of the case on 28/2. Given a hearing date on 2/5!

Today we received a copy of witness statement filed against my defence posted above. They HAVE NOT stopped the collection process as they claimed in the last letter they sent me, of course. They are asking for the application for annulment to be dismissed, even while they're in default to supply the agreement. It seems they have fabricated 13 letters supposedly sent to me, among which is a Notice of Assignment. (none with letterhead) The NoA states they bought the debt from Barclays on 28/07/11. In my SAR to Barclays I received copies of statements. The January 2010 statement shows the debt is paid off in full. Feb statement shows balance £0. Am I right in thinking that they bought the account then (January 2010) and are making it appear as a later date because they did nothing in the following 18 months? If so, what are the legalities in regards to the Notice of Assignment?

That is really useful, but I think they sent me this 'template' response just a routine procedure and are not aware that my account is actually already in court. What about I play fool and send them a strong 'you have not complied with CCA request therefore close my account immediately or I will report you for misconduct' type of letter?

I will, thanks. What is the next letter to send to them in reply to that 'complaint' acknowledgment? I want to reply to that and file a copy with the court.

I wanted to post the amended 'defence'. The London court does not do Affidavits any more, so it was filed as a witness statement... CLAIM No. xx/xx APPLICATION TO ANNUL THE BANKRUPTCY PETITION OF MR xxxxx ________________________________________________________ Statement of MR xxx _________________________________________________________ I, Mr xxx of xxx xx will say as follows:- CIRCUMSTANCES SURROUNDING THE ISSUE OF THE BANKRUPTCY ORDER 1. I first became aware that a bankruptcy order had been made against myself upon receiving documentation from the Insolvency Service on xx/xx/12. If I had known that there were court proceedings against myself, I would have applied to set them aside. I am a professional with 20 years business experience and as such, I am aware of the importance of court documentation and therefore would not ignore it. 2. I immediately applied for annulment under S. 282 1(a) of the Insolvency Act after I was made aware of the grounds on which the order was made. 3. I believe I should not have been made bankrupt on the grounds that: (a) I am not insolvent and I can afford to pay my creditors. I refer to the receipts enclosed marked (‘A’) to confirm that I have paid all my other creditors in full as soon as they were listed by the official receiver. (b) In respect to the alleged original creditor, I was in communication with both Barclaycard and Mercers, their internal debt collection, in October 2009 when I offered a settlement plan to which I received no reply. I refer to letters attached marked (‘B’). No other communication was attempted by any company claiming any sums for a period of 3 years since, and I received no formal Notice of Assignment. Therefore, the bankruptcy order was made upon a claim of £xxx from a single creditor who had not informed me that (a) they own the debt (b) demonstrated that the sum was immediately payable. 4. If the creditor had followed the processes correctly by informing me of the assignment and providing me with opportunity to discuss the alleged liability with evidence of their ownership as per requirements of s196 of the Law of Property Act 1925, I would have duly paid the amount claimed without the need to enforce it through bankruptcy proceedings. 5. I believe that there has been an abuse of process by the creditor, who having confirmed that I am a home-owner and I have good equity in my mortgage and a reputation to protect – I refer to the respondent’s own notes marked (‘D’ 1), utilised serious court proceedings unlawfully in order to enforce collection of a liability which I believe to be unenforceable. 6. The petitioning creditor has a reputation for abuse of process and I believe I have been victim of such abuse. I refer to evidence marked (‘C’) of three other cases of where debtors have been made bankrupt without their knowledge by the same creditor. 7. I therefore aver that the respondent had no intention at any time to discuss with me a proposal for repayment because they were uncertain of the enforceability of the agreement, and having carried out investigations about myself, they rushed straight into initiating court proceedings. I refer to the respondent’s own notes, marked (‘D’ 2) where their records clearly indicate that, from the date they “acquired” the account an prior to court proceedings commencing, no evidence exists of any letters sent to me or other communication attempted by any means. Nevertheless, there is evidence of the content of letters sent to me after the bankruptcy order was made (marked ‘D’ 3) which indicates that their communication with their client is recorded when it exists. 8. The OFT would not expect a creditor to take disproportionate action against borrowers in respect of arrears or default. This would include such matters as applying to the court for an order for sale or for the borrower to be made bankrupt, without having explored other alternative, more proportionate options for recouping arrears. Under OFT664 - Debt collection OFT guidance for businesses engaged in the recovery of consumer credit debts Although the guidance is called 'debt collection' guidance, it has much broader application than simply covering the activities of third party debt collectors (as defined in section 145(7) of the Act). As such, it sets out the standards expected of ALL parties engaging in the recovery of consumer credit debts. It identifies conduct that, in the OFT's view, may constitute an unfair or improper practice for the purposes of section 25(2A)(e) of the Act and provides some illustrative examples. The examples are based on OFT complaint information and issues brought to our attention by organisations representing consumers, businesses and other regulators. 3.7 Examples of unfair or improper practices are as follows: s. not having appropriate regard to relevant pre-action protocols t. taking steps to repossess the debtor's home, other than as a last resort 9. As a measure of proportionality, the OFT on the 11th January 2013, the OFT announced that it has sanctioned Natwest and RBS banks for obtaining charging orders for debts of less than £5,000. Charging Orders have a lot less serious implications than bankruptcy. 10. I therefore aver that the Petitioner is in breach of the OFT guidance provided by OFT664 which they agree to abide with while being regulated by the Consumer Credit Act 1974 and should have taken more proportionate action other than petition for bankruptcy. In this respect, it is noted that I have initiated a complaint with the OFT against Lowell Portfolio I for their non-compliance. LEGAL GROUNDS FOR THE APPLICATION TO SET ASIDE 11. It is my belief that, at the time the court granted a bankruptcy petition, there were grounds existing that (A) meant that the debt was not immediately payable to the petitioner (B) service was defective prior to the making of the bankruptcy order. 12. Consequently, I believe that the court should exercise its powers under s282(1)(a) of the Insolvency Act 1986 to annul the bankruptcy order. (A) Enforceability of credit agreement Notice of Assignment 13. It is noted that the claimant, in paragraph 2 of particulars of the debt in the statutory demand, state that ‘Notice of Assignment having been served upon the Debtor by the Creditor on 01/08/11 in accordance with the provisions of Section 136 of the Law of Property Act 1925’. 14. I respectfully submit to the court that steps to ensure service of a petition are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service. 15. Since the claimant explicitly states the notice was ‘served’ it is assumed that this was done either in person or via the postal service. 16. The requirements for service via the post are: 196. Regulations respecting notices. (4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. [emphasis mine] 17. It is noted that the claimant has, at no time, provided evidence that the Notice of Assignment was sent via registered post or served in person, and if sent via any other method, the notice was not sufficiently served. 18. I require sight of the Notice of Assignment of the debt and 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. 19. The reason I request this information is inter alia to verify the account number quoted on claim as it is noted that in the statutory demand, the petition and all other communication, the respondent has quoted an incorrect account number and it is also noted that if there are errors in the assignment it may be rendered ineffectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169 The Credit Agreement 20. I have serious doubts as to whether any enforceable debt has ever existed between myself and the respondent. 21. As of xx/xx/12, I sent a credit agreement request with the statutory payment of £1 to the respondent by registered post (marked ‘F’). They had 12 days to respond until the credit agreement became unenforceable by law. However, as of x/x/12 they have not supplied the required information. 22. As of xx/xx/12, I also sent a Subject Access Request with the statutory payment of £10 to the alleged original creditor, Barclaycard, requesting a copy of the credit agreement and terms and conditions among other information (marked ‘E’). They had 40 days to respond. On xx/x/13 I received a package from Barclays containing notes on my file and statements of the account, but they have not supplied me with a copy of Credit Agreement, the Default Notice or the Notice of Assignment. They have also failed to provide any reasons for non-compliance. 23. Therefore, I aver that: (a) The alleged creditor has provided no consumer credit agreement with the prescribed terms despite a legal request made under the Consumer Credit Act 1974. (b) The alleged creditor has not provided any default notices in the prescribed form. © The alleged creditor has not provided any details of any potentially missold payment protection insurance which may have been added to the account. (d) The alleged creditor has not provided any Notices of Assignment. The Consumer Credit Act in section 78(6) States that (6) If the creditor under an agreement fails to comply with subsection (1)— (a) he is not entitled, while the default continues, to enforce the agreement; It must also be noted that the agreement must contain the prescribed terms. Consumer Credit Act 8.2 What if prescribed terms are missing or incorrect? s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order. (N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation) The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6)) Citation 1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007. Interpretation 2. In this Order “the 2006 Act” means the Consumer Credit Act 2006. Commencement 3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007. (2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007. Transitional Provisions 4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont) 5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in— (a) sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act; (b) section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and © section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act, in relation to agreements made before 6 April 2007) Reference To Case Law 24. 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. 25. The law states that without a prescribed agreement the courts may not enforce under 127(3) and (a) 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.” (b) 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.” 26. I also wish to make it clear that there is no avoidance available by the claimant in his duties to provide the agreement under the Consumer Credit Act 1974 and I refer to IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION MANCHESTER DISTRICT REGISTRY Jones vs Link Financial 1. In my judgment the reason for the reference to 'duties" in section 189 is that an assignee only becomes the "creditor" where the statutory duties relevant to the enforcement of the creditor's rights have passed to the assignee. This will not be the case where there has been an equitable assignment of which no notice has been given. In such a case the debtor will remain legally liable to the assignor and the assignor will remain responsible for the performance of the statutory duties relating to enforcement, such as duties to provide information and notices. 2. Where, however, there is a legal assignment the debtor's liability will be owed to the assignee and it is the assignee who will have to perform the statutory duties relating to enforcement. This is not because he becomes under a contractual obligation to perform those duties, but rather because he cannot assert his rights under the regulated credit agreement without accepting the statutory obligation to perform duties under the 1974 Act relating to enforcement of those rights. 3. The legal assignee stands in the shoes of the assignor. The enforcement of the assignor's rights under the regulated credit agreement was subject to performance of the statutory duties laid down in the (Consumer Credit) 1974 Act, and the legal assignee's rights are similarly so subject. 27. 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. (B) Perfection of Service 28. I did not receive the statutory demand. I had not seen these documents until xx/xx/12, after requesting a copy from the court files. I deny the allegations made by xxxx in his witness statement dated x/x/12 that the statutory demand was served on me personally. I do not recall having been served any documents as described in his witness statement. 29. It is noted that my home address is also a registered company address for xxx xxx Ltd. The post we receive on a daily basis is much more complex, voluminous and varied than any average household post in our area. My wife, who is the company secretary, deals with the post as part of her administrative tasks. I refer to copy of the ‘xxx xxx, marked (‘H’). 30. I understand that my wife, xxxx, had seen a statutory demand from Lowell Portfolio when opening the post collected from the communal post box in our building. I refer to her witness statement marked (‘G’). 31. She read through it and she did not recognise the name of the claimant. Nevertheless, she checked the credit card account number quoted in the demand, and noticed that such account number did not relate to any accounts held by myself. Further to this, she enquired with Barclaycard Customer Services over the telephone and they confirmed that such account number was not the correct number for my account. 32. She recalls that the paperwork was of poor legibility and quality (a bad photocopy or fax). Unaware of the importance of it and presuming it was a fake claim, she discarded it without showing it to me. 33. Had I known about a statutory demand, I would have applied to set it aside. I wish to refer to the High Court authority of NAMASIKU LIANDU vs GO DEBT LIMITED “to comply with section 7 of the 1985 Act they must be served on the alleged debtor in person. It cannot be left at an address or given to any other person who might be there at the time” “The petitioner's evidence was that his son did not pass on to him the statutory demand. He would have challenged it had he received it.” In this case the defendant’s appeal was upheld and costs were awarded against the claimant. The Petition 34. I refer to the witness statement of xxx dated xx/x/12 where he describes how he tried to serve the petition on me personally. I have supplied the court with proof that we were away from home from xx/x/12 to xx/x/12, and that upon returning, we did not find any documents within our awaiting post that referred to court proceedings against myself, nor the letter making an appointment for service of the petition in person he states to have posted by first class pre-paid post. 35. The petitioning creditor applied to the court for an order of Substituted Service on x/x/12. Although the order was granted to them on xx/x/12, they pointlessly reapplied on xx/xx/12 without needing to do so. The District Judge made the following comments: ‘This application is dismissed. An order for substituted service was made by Deputy District Judge xxx as long ago as xx/xx/12 and it has taken this long for a draft to be supplied’ 36. I draw your attention to the date of service quoted in the Certificate of Service, xx/xx/12, which is as much as 50 days after the order was first granted. During that time, the petitioning creditor could have (a) attempted to serve the petition in person, (b) posted the petition earlier than only 7 days before the adjourned hearing of xx/xx/12. 37. I refer to the respondent’s own notes marked (‘D’ 4), where on x/xx/12 District Judge Smart ordered the hearing to be adjourned due to the short notice of the service, despite the petitioner’s agent insistence that the order is made in my absence. He also refused the petitioners request for costs on the basis that the creditor took so long to file a draft document with the court and that they could have applied for a time extension. 38. The claimant has not served or filed with the court Certificates of Continued service in compliance with Part III of the Personal Insolvency Practice Directions: (14.5.3) On any adjourned hearing of a petition where a bankruptcy order is sought, in order to satisfy the court that the petitioner has complied with rule 6.29, the petitioner will be required to file evidence of the date on which, manner in which and address to which notice of the making of the order of adjournment and of the venue for the adjourned hearing has been sent to – (1) the debtor, A fresh certificate will be required on each adjourned hearing. CONCLUSIONS 39. Consequently, I believe that, at the time the court granted the bankruptcy petition, it did so on the basis of the assertion in a sworn statement by the respondent that a liquidated sum was payable at the time that the order was made. I do not believe that they knowingly misled the court, but at no time was the credit agreement provided in evidence, and I have not been supplied with a copy of the credit agreement despite my legal rights. 40. I therefore, wish to bring this evidence to the court’s attention and put the claimant to strict proof thereof, respectfully requesting that the court orders the respondent to supply an original copy of this document, and of any proof that a Notice of Assignment was sent in the prescribed manner and not returned. 41. I wish to bring to the courts’ attention that as a head of family I have the responsibility and urgency to solve this matter, and that I have the resources to honour the credit agreement provided the above mentioned documents, to which I have legal rights, are forthcoming. 42. In light of the above evidence and the imperfection of the service of any documents, I gracefully request the Judge annuls the bankruptcy and allows me to oppose the petition under the Slip Rule. 43. I also requests costs against the claimant. I believe that the facts stated in this witness statement are true. SIGNED ______________________________________________________ xxxx Dated _________________________

Just a small update... I have had replies to my CCA request from Lowell. They said they are requesting the agreement from the OC. As I have SAR Barclays already and no contract was produced, I know they won't have it. After the 12 + 2 days, still no contract, so I sent the Account in Dispute letter. Today I got a reply saying they acknowledge the 'Complaint' and will get back to me but 'assure' me that the account is on hold and they will stop collections activity until it's resolved. Now, does that change things regarding their position for my bankruptcy? I intend to file a copy with the court as evidence of enforceability.

Not really. We run 2 business from home and the amount of post is huge. She deals with all admin tasks and this case, she rang Barclays to verify and they said that the account number quoted on the SD and the petition were not of my account, so she thought it was fake.