Stat demand set aside refused by court! hfc hp - 1st credit/connaults/marlin

[babybear39]

Send the SAR to the original creditor...

[SirHumpy]

Following on from my original post.

 

About seven working days ago I got a statory demand from Connaught, checking this site it seems to be there usual blue cornered stuff.

 

So a couple of days ago, following advice from here, I CCA'ed them, and was about to get the demand set aside on Monday.(The debt is an Hire purchase agreement).

 

By return of post I got a reply saying they had closed their files on the matter and passed it back to 1st credit. So should I still go to get this set aside on monday - I dont trust these guys - or is that it for the stat demand? - I dont have to do anything? (they returned my postal order btw).

 

Another thing is I also have the muppets at Marlin chasing this debt (they actually sent me a letter of assignment - which connaught never did) - they havent replied to the CCA yet though.

 

Thanks guys!

[tiger33]

i had the same senario last week,connaught sent me a letter stating they wouldnt be turning up at court but i was still advised to go. to be honest i was in with the judge for no more than 30 seconds and he just set it aside no problem, also you can claim your costs against them.

[SirHumpy]

Do I ask for costs when I go to get it set aside or is there another court bit after this

[SirHumpy]

Background: I have been sent a stat demand from 1st credit/Connaught. I also received a letter of assignment for the same debt from Marlin DCA. I CCAed them both. Connaught have replied saying they have passed it back to their "client" 1st direct (across the desk then). Marlin have yet to reply, going on about a week now.

 

I didnt trust connaught so I went off to court to request a set aside, just in case connaught were pulling a fast one. The reasons I put were:

 

1 - Duspute the complete amount due to charges that havent been verified

 

2 - Connaught hav not supplied a CCA despite a request to do so.

 

The officer of the court told me that would be enough and to expect the case to be listed for a hearing.

 

So today I get a letter from court dismissing my application for:

 

the debt is not disputed, on grounds which appear to the Court too be substantial reason

 

The creditor may present a bankruptcy petition after 10/09/08

 

What did I do wrong? Did I not use the correct wording? Was it a little weak?

 

What now?

 

Thanks guys

[postggj]

hi sirhumpy

interesting

 

did you say you were disputing the debt and the dca has not provided details of the account as requested

 

also it depends on the judge

they have bad days also

 

i dont know about resubmitting the application, no doubt some one will advise on that score

[SirHumpy]

Word for word as above mate!

[postggj]

sorry , repeating your question

[SirHumpy]

sorry , repeating your question

Dont be sorry! - I'm grateful for the help

[postggj]

the people who deal with sd will advise soon

 

must say ime a little shocked

not come across a judge refuse an application before

10 minute jobs the norm

 

considering a dca cant enforce while in default of your cca request

i take it the judge was reminded of this

[SirHumpy]

Just to note - I didnt see the judge - at my court you swear the stuff with an officer of the court and leave it there.

 

I went to court on the 19th August - got the letter today.

[postggj]

strange

 

when i had an sd set asside i took the oath, it was then passed to a judge, left 10 min later

 

like i said some one will advise on re submitting the application

i think the judge got this one wrong

[SirHumpy]

Is there a way of resubmitting it though?

 

Due to the bank hol I think I will be ouut of time.

 

Guess I just have to hope Connaught keep to their word and have passed the account back.

[MONX]

Sorry to hear this, not sure why the judge in this instance is going down this route as almost everyone on here seems to have the opposite outcome.

 

Hopefully someone with the answer will be along soon. I remember reading somewhere on here that this is not the end and that there are things you can still do but I cant remember which thread, it might be the sticky about SD's.

[IdaInFife]

national debtline are quite good, give them a call and see what advice they can give.

 

0800 074 6918

 

 

idax

[SirHumpy]

any ideas??

[surfaceagentx20]

This is going to go down like a lead balloon, but it's worth debating and I don't care if people get huffy with me, because to my way of thinking, the delivery of a s77 request to a lender is merely that, a request. It is not a statement particularising a series of or any issues or other matters which would constitute grounds of dispute.

 

Sections 77 and 78 are there to enable debtors to establish what sum would be required to settle their account early. On receipt of a s77 request, lenders are required to act promptly, that is, to deliver the necessary s77 information within 12 working days [s77(1)]

 

Section 77(4) says:

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

 

A lender does not enter a state of non-compliance until after 12 working days have elapsed.

 

Timing is all important therefore. An applicant to set aside a SD on grounds there has been a failure to comply with a s77 request, can only advance that ground if the lender

 

[1] was in a state of non-compliance at the date of service of the SD, or

[2] after service, had entered into a state of non-compliance during the period of 18 days allowed to the debtor to file an application.

 

However, there may not be the time. Advancing an application to set aside the SD where the only ground relied upon is that the lender has failed to comply with a s77 request which was delivered to the lender after the date of service of the SD, may very likely fail. If the period for compliance is 12 working days and the time for compliance with a SD is 18 days, there will be perhaps a couple of days at most during which the ground might be advanced.

 

Further, the prohibition is against enforcement whilst there is non-compliance. The prohibition is lifted the moment there is compliance, and what follows after non-compliance with a SD is not the enforcement of the agreeemnt

 

Most important is the wording of s77(4). This is the killer in my opinion and applicants to set aside would be well advised in my opinion to think twice about relying solely on non-compliance with a s77 request.

 

The reason is that the prohibition is against enforcement of the agreement. Insolvency proceedings are not enforcement proceedings. Far from it. A lender operating as a petitioning creditor is not seeking to enforce the agreement at all. If the petitioner is succesful upon the petition the debtor is adjudged bankrupt. Rather than being forced to pay the lender under the agreement, the bankrupt is released from all liability under it.

 

x20

[ukaviator]

To successfully get a statutory demand set aside one or more of the following must be satisfied by the court:

 

The amount stated on the statutory demand is disputed.

 

The person issuing the statutory demand also owes money. This is called a counterclaim.

 

The person issuing the statutory demand is holding security that equals or exceeds the amount owing.

 

The demand was issued in error.

 

The amount owing is less than £750

 

Execution has been stayed on a judgement debt.

 

The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.

 

The creditor failed to comply with the rules and prejudiced the debtor in the process.

 

An application to set aside must be made with 18 days of the statutory demand being served.

 

So as they owe you charges and interest, you should go for the set aside based on filing a counterclaim. You will need the form N244 to file a counterclaim, and there will be a fee of £60, unless you are on benefits for example.

 

You should speak to the court manager for more advice on Tuesday morning to see what time you have left to file, and anything else you are unsure of.

Edited August 24, 2008 by ukaviator

[surfaceagentx20]

Aviator,

 

SirHumpy has already submitted an application to set aside the SD. The brave knight's application failed. His post sought an explanation for why.

 

Besides, the mere existence of a counterclaim is not enough. It has to equal or exceed the debt specified in the SD

 

Insolvency Rules 1986 6.5(4)(a) says of an application to set aside a SD:

 

The court may grant the application if

the debtor appears to have a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt or debts specified in the statutory demand;

 

Granted, a counterclaim which had the effect, after set off, of reducing the undisputed portion of the debt to below £750.00 would place the debt below the minimum sum for which a bankruptcy petition could be presented.

 

x20

[postggj]

EVERY BODY QUOTING BITS OF LEGISLATION IS ALL WELL AND GOOD

 

many people, me included have had no problem in getting an sd set asside by the reasons given by ukaviator.

sir humpy seems to have been very unlucky.( judge on the day )

 

what we are asking is how do you go about re submitting to the court to get the sd set asside.

prob get a different judge this time.

 

having once been declined, can and how a second application be made

[surfaceagentx20]

OK, GGJ, I got that too.

 

The rules do not prohibit a second application being made, but clearly any second bite must advance different grounds for setting aside. If the grounds which lead to a refusal are maintained as good grounds, the procedure is to appeal the refusal of the District Judge and set out why the Judge was wrong 'in law' in reaching the decision he did.

 

Point is, an applicant usually leads with the best grounds available. If there's to be no appeal (and for the reasons I indicated I don't recommend one) what are the substitute grounds going to be?

 

x20

[postggj]

as ive not come across this prob before its educating myself as well

 

so you can put in another application but with extra bite as they say.

do you need to mention a previouse application

can this be a normal application process or is it done by appeal process on the first judgement

[ukaviator]

That's ok guys, the post was to inform others, as well as Sir Humpy, to get in a counterclaim for the charges and interest. I do put as much information into most of my posts, to show the reasons set asides are normally given.

 

If the counterclaim is enough to seriously bash a huge hole in their claim, and get it below £750, it will stop Bankruptsy procedings, and reduce the debt to a more managable amount, if the money is to be paid back, and a CCA is eventually sent.

 

Sirhumpy now has to demand all of the paperwork they have under CPR 18, to enable the counterclaim, as they have refused or not found, an agreement. The counterclaim also stops the claimant from discontinuing their claim when they find out they don't have an agreement. It puts the defendant Sir Humpy back to square one, if they owe charges.

 

The set aside should be on the grounds of a counterclaim for charges with interest, the creditor failed to comply with the rules and prejudiced the debtor in the process, there is no Burden of Proof that the amounts are correct, usually goes through.

 

Meanwhile send the CPR 18 request you could send if you are going to counterclaim, you may get all of the information or confirmation that they don't have a CCA at all.

 

 

CLAIM NUMBER: *******

 

In the XXXXXXX COUNTY COURT

 

Between:

 

[YOU]

Claimant

 

 

 

 

-And-

 

 

 

 

 

1st Credit

Defendant

 

 

_______________________

 

 

REQUESTFOR INFORMATION AND

 

 

CLARIFICATION UNDER CPR PART 18

_________________________ _____

 

 

DATE OF SERVICE: [date sent]

 

This request for information under CPR part 18 is served notwithstanding anticipated future track allocation. I believe that the court would consider this request as appropriate in the context of clarifying matters to which your Defence directly refers. In the event you ignore or do not comply fully with this request, a formal application may be submitted to the court for an order under part 18.

 

1. Please provide copies of the terms and conditions governing the account in question and which are referred to in your Defence. The terms and conditions required are those that formed the contract between the Claimant and Defendant covering the entire period from when contract was first entered into until the present day, including amendments or alterations where appropriate.

 

2. In relation to each and every breach by the Claimant which resulted in a charge being levied as confirmed by the Defendant in its Defence, please provide full details (with all relevant supporting documentation) of any letters, telephone calls, or incidents of manual intervention into the account in respect of each and every charge claimed by the Claimant in the Particulars of Claim.

 

3. If the Defendant employs or operates any system, either automated or manually operated or otherwise, which is used to assess, audit, track or refine the costs or "administrative expenses" of dealing with current accounts incidents - in particular any delinquency incidents, such as refusal or otherwise of direct debits, referral of cheques for any reason, refusing or permitting any formally agreed overdraft limit to be exceeded or any other delinquency event, such a systems existence is required to be confirmed and named and full details given.

 

4. The Defendant’s assessment of the cost to it of sending any letter making any telephone call or otherwise administering the account, with details of how the cost to the Defendant is calculated and what items of expense are included, or such other costs as are foreseeable in the context of contractual damages and the remoteness thereof and which can be specifically identified and defined and which can be reasonably attributed to each and every breach on the part of the Claimant.

 

5. The justifiably objective principles upon which all such costs are calculated and result in the specific level of each charge levied by the bank in respect of each of the breaches which resulted in the charges now claimed by the Claimant.

 

6. Please provide copies of all notes, memoranda, or other information retained by the defendant to demonstrate the provision of the alleged services to the claimant.

 

7. Please confirm whether charges are applied automatically.

 

A full response to each and every point of this request should be served within 14 days, by [date].

 

Please note that the response must be verified by a statement of truth.

 

[JonCris]

Also most senior judges don't appreciate an SD being used to recover an ordinary consumer debt. Therefore if applying again I should include the relevant Judgement in which the court stated this

[JonCris]

It's quite appalling that a member of the Judiciary is quite prepared to allow a consumer to have their life ruined over a consumer debt.

 

Obviously this disgusting person hates debtors or is in the pocket of the creditors