1st credit /connaught Bankruptcy Petition - ** WON **

[PSB123]

to be honest c c mug we were glad to get out of there or rather my wife was....

if it was my petition i would have argued a bit more with the judge regarding costs, but you cant say much as an assistant/mcenzie friend not direct to the judge anyway!!

No doubt a great weight lifted from your minds...may want to go and get very drunk now

[PSB123]

Were 1st Credit represented in court at all or did they just send a letter?

[babybear39]

Congratulations to you and your wife

 

[creditcardmug]

thanks it was a great result , i just wish more people would visit this site as there was a lot of individuals today that was not turning up for there own bankruptcy hearing,

 

just hiding away is not the answer , just a little defence/fightback gets them worried, so if anybody is reading this and just starting off in the preceding s, go for it, you will be quite shocked how quickly they back down;)

 

The problem is only 10% of people with debt problems come to this site (i guess), i just wish there was a way of getting more people here, then we might have a chance of stopping them using this "method of debt collection", which is an abuse of process, which no-one in authority appears to want to do anything about, including OFT, Courts, Government!!

[dave121]

yes cheers psb123, im going to get my 6 years of bank charges fought for now..........lloydstsb ......im coming to get you!!!

[dave121]

thanks baby bear.....

c c mug thats, right there needs to be a heavy penalty for abuse of process

[tiglet]

Well done guys - well done!

[PSB123]

The problem is only 10% of people with debt problems come to this site (i guess), i just wish there was a way of getting more people here, then we might have a chance of stopping them using this "method of debt collection", which is an abuse of process, which no-one in authority appears to want to do anything about, including OFT, Courts, Government!!

I wonder why

[danmcd]

That is really good news against a bunch of two bit telephone/mail thugs! congratulations...

 

they seem to have disappeared on me despite the SD, CCA sent, no response, follow up letter sent today, SAR sent to creditor, no response either... I hope that I win like you!! i will take pleasure in calling them and thanking them for their time if I win!!!

[creditcardmug]

That is really good news against a bunch of two bit telephone/mail thugs! congratulations...

 

they seem to have disappeared on me despite the SD, CCA sent, no response, follow up letter sent today, S.A.R - (Subject Access Request) sent to creditor, no response either... I hope that I win like you!! i will take pleasure in calling them and thanking them for their time if I win!!!

 

Better still hit them with a wasted costs order in an effort to curtail their ambitions in this direction!!

[cymruambyth]

Brilliant news, congratulations and well done. 1stC are typical bullies, they threaten and get nasty until you stand up to them.

[42man]

mistake made...

Edited September 22, 2008 by 42man
wrong thread...

[42man]

Pre edit version...

The alleged debt does not even exist as I have proof from the alleged orignal creditor dated (XXX) that they cannot trace any accounts (see document X attached)

 

I have received a letter from XXXX dated (XXXX) in which they state they have 'closed' their files.

 

Despite this and as of this date I have had NO indication that they are wishing to discontinue the bankruptcy petition.

 

DEFENCE SUMMARY

 

1. I would gracefully request the judge scrutinises the process as up until receiving the bankruptcy petition, I had NO knowledge of this whatsoever.

2. Despite having asked for the process servers affidavit to verify, none has been provided.

3. The alleged creditor has not provided any valid Consumer Credit Agreement (section 78 CCA) with the prescribed terms as laid out in section (section 8.2 CCA)

4. The original creditor has confirmed that no account in my name exists.

5. I believe that the assignment is void since it is assigned as a charged of account, and this was not the case.

6 No evidence of a valid default notice has been provided

7. The assignment was void because no notice of assignment has been properly served

8. Notwithstanding points 1-7, and with no admission of liability, the assignment is potentially fatally flawed since it would obviously contain a number of unlawful charges, (it being not unusual that some debts are made up of unlawful excessive charges) and is thereby rendered void.

8. I have confirmation that XXXXX have ‘closed’ their files. ?

 

I have never ever seen a statutory demand for this claim and would state that there are sufficient doubts that the process has not been carried out to the law, neither have I had anything 'served' upon me.

 

Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

Then r 6.15 says:

(1) Service of the petition should be proved by affidavit.

(2) The affidavit shall have exhibited to it -

(a) a sealed copy of the petition, and

(b) if substituted service has been ordered, a sealed copy of the order;

and it should be filed in court immediately after service.

 

'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. The rules provide in terms that the petition must be supported by an affidavit of service showing how the petition was served, and express reference is made to substituted service and the way in which that then is to be proved, which involves the affidavit of service having with it a sealed copy of the order.' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

 

The debts claimed by the petitioner are totally disputed and are non existent

 

The claimant claims the following debt

 

Debt amount £XXXXX

Creditor XXXXX

 

 

THE IMPORTANCE OF THE CREDIT AGREEMENT

 

Under section 78 (1) of the Consumer Credit Act A formal written request for any true copies of signed consumer credit agreements was sent to XXXX. via guaranteed delivery on the (insert the date on the recorded delivery slip here ) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies one for the court and one for the opposing solicitor ) – to date they have not sent any copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

 

I believe there are no properly executed signed Consumer Credit Agreements (as the account does not exist), If they had been able to supply these agreements then they would have done already to avoid committing an offence under section 78 (1) of the Consumer Credit Act

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

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

• 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 non existent, 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

 

Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment 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.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

1 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.

 

2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the bankruptcy petition, and therefore any assignment has not been perfected in law.

 

In summary

1. I would gracefully request the judge scrutinises the process as up until receiving the bankruptcy petition, I had NO knowledge of this whatsoever.

2. Despite having asked for the process servers affidavit to verify, none has been provided.

3. The alleged creditor has not provided any valid Consumer Credit Agreement (section 78 CCA) with the prescribed terms as laid out in section (section 8.2 CCA)

4. The alleged original creditor has confirmed that no account in my name exists.

5. The assignment was void because no notice of assignment has been properly served

6. Notwithstanding points 1-5, and with no admission of liability, the assignment is fatally flawed since it clearly contain a number of unlawful charges, (it being not unusual that some debts are made up of unlawful excessive charges) and is thereby rendered void.

7. I have confirmation that XXXX have ‘closed’ their files. But no indication whatsoever that they wish to discontinue this action.

 

I gracefully request that:

1 - The Judge dismisses the petition on the above evidence as this claim is unfounded, unlawful, vexatious and frivolous.

2 - The Judge order the claimant to delete all adverse information held on my credit files as a result of this petition

3 -The judge grant me a Tomlin Order in the likely event that this so called ‘Debt Collection Agency’ can NOT attempt to enforce this non existent debt or attempt to ‘sell’ this non existent debt at any time in the future.

4 - The Judge orders the claimant to pay my full costs in light of the serious inconvenience distress and damage to my family

I believe the facts herewith in this form are true.

-----------------------

 

AFFADAVIT

 

 

 

AFFIDAVIT

 

 

I (name) of (address), (occupation)

MAKE OATH and say as follows:

 

1 -With regards to the statutory demand

 

1.1 The first time I was made aware of any bankruptcy proceedings was when I first received the bankruptcy petition. Previous to this I had NOT received ANY paperwork pertaining to a Statutory Demand (attached witness statement doc 1)

 

I am totally disputing the debts claimed by XXXX and XXXX

 

1.2 I believe there are no executed signed Consumer Credit Agreements, If they had been able to supply these agreements then they would have done so already to avoid default under section 78 (1) of the Consumer Credit Act

 

1.3 Under section 78 (1) of the Consumer Credit Act A formal written request for any true copies of signed consumer credit agreements was sent to XXXX. via recorded delivery on the (date) – to date they have not sent any copies of any Consumer Credit Agreements and have committed an offence under section 78 (1) – (see attached documents labelled X)

 

I have made a Subject Access Request to the alleged original creditor for documentation under the Data Protection Act – Subject Access Request this was made on the (date) I have received a letter from (original bank) on the (date) stating that they could not trace ANY accounts (attached document X)

 

I have received a letter from XXXX stating that they are ‘closing’ their file. (attached document X)

 

It is obvious that they wish to continue to make me bankrupt as they have not made any indication to me that they are withdrawing the petition.

 

SECTION 78 (1) CONSUMER CREDIT ACT

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

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

 

 

2 -. I believe that, at the time the creditor has brought this petition on the basis of the assertion in a sworn statement that a liquidated sum was payable at the time. 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.

 

2.1 -. If the agreement is, as I expect, non existent, 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.

 

 

 

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

 

Legal grounds for the application to be annulled or set aside.

 

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 and (b) that the debt was non existent

 

I make application that the court dismiss the bankruptcy petition by powers granted

under section 282(1)(a) of the Insolvency Act 1986 due to an, unfounded, vexatious, unlawful and frivolous attempt to make me bankrupt. Even at this stage all I have is a letter from the alleged creditor saying ‘YOU OWE US THIS’ with NO evidence whatsoever.

 

I gracefully request that the court pay my costs in full in light of the stress, upset and serious inconvenience that this has caused me and my family.

 

 

 

 

 

 

_________________________ ___________

Signature

SWORN AT

 

this day of year

 

before me,

WITNESS STATMENT

 

Statement: Defendant

Party:

Statement:

Exhibits:

Date:

 

CLAIM NO.XXXX of 200X

 

 

 

APPLICATION TO DISMISS THE BANKRUPTCY

 

 

 

 

 

PETITION OF MRS/MR (name)

_________________________ _________________________ _______

statement of MRS/Mr (name)

_________________________ _________________________ _______

 

 

 

I, Mrs/Mr (name) of …………(Address)………………… ………… will say as follows:-

 

 

Up until the date of the bankruptcy order, I was not aware of any impending court action. I did not receive any statutory demand. If I had received the statutory demand I would have applied to have it dismissed, and taken the necessary steps to get this Debt Collection Agency to provide proof of debt under S.79 of the Consumer Credit Act 1974.

 

I have made statutory requests under s.78 of the Consumer Credit Act 1974 to all alleged creditors including both XXXX and XXXX asking for true copies of any agreement relating to the alleged debts. Neither XXXX nor XXXX has complied with my requests and they are now both in the position of being in default of these requests. I do not believe that they have any enforceable agreements for the alleged debts. Their inability to produce any agreement confirms my belief that I am not in debt to them.

 

I believe that the facts stated in this witness statement are true.

 

SIGNED ………………………………………..

 

 

Dated ………………………………………..

__________________

 

 

Husbands Witness statment

 

Statement: Defendant

Party:

Statement:

Exhibits:

Date:

 

CLAIM NO.xxx of 2008

 

 

 

APPLICATION TO DISMISS THE BANKRUPTCY PETITION OF

 

 

 

 

OF MRS (name)

 

 

 

 

 

 

 

 

_________________________ _________________________ _______

 

 

 

 

statement of MR (name)

 

 

 

 

_________________________ _________________________ _______

 

 

 

I, Mr (name) of ………(address)……………………………… will say as follows:-

 

 

I confirm to the best of my knowledge and memory that I not been issued with any demand of any while I have been living at this address. The first time I became aware of this petition was. (date)

 

I believe that the facts stated in this witness statement are true.

 

SIGNED ………………………………………..

 

MR (name)

 

 

Dated ………………………………………..

[42man]

moving to legal success forums

[stephan4571]

Great result Bankruptcy Petition withdrawn, despite an unfriendly judge the opposition didn't want to fight the defence !!!

 

Can I ask what the defence letter looked like please...