Hamptons Legal have served a Statutory Demand In Person - cap1 debt

[mandyjayne]

Hi derek..

 

You have to attend a hearing to have the sd set aside. When you take in your 6.4 and 6.5 you will have to swear them in then you get a hearing date..which you MUST attend.

 

If you need help with filling in your forms, just ask.

 

MJ:)

[derek1]

Yes please I need help filling them in!

 

Form 6.5:

 

part (a) I put my name and address.

 

Part 1 (b) the date I was handed it

 

Part 2 © they have not complied with a CCA sent on (date) by recorded delivery and signed for on (date). To date no reply has been received.

 

Where it says sworn at do I leave that blank?

 

Then form 6.4:

 

Let (a) - my name and address?

 

Attend before register - leave blank for them to tell me the date?

 

on the hearing of application (b) - (insert name of debtor) - so my name

 

insert date affidavit sworn - leave blank til I get form 6.5 sworn in.

 

name and addresses of persons on which it should be served (d)- Hamptons Legal or Lowell?

 

applicants address for service (e) - Hamptons or Lowells?

 

signed (solicitor for the ) Applicant - my signature?

 

Will they set this aside??

[harrassed senior]

Almost certainly, yes. It will cost Lowells/Hamptons . As it was served by Hamptons, it will be their address.

[mandyjayne]

Derek read from here on my thread..it may help

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/195656-egg-barclays-help-please-4.html#post2456481

 

MJ:)

[harrassed senior]

Here is an in depth response that was kindly prepare by a member of the site team - this was 'stolen' some time ago from 42man who i am sure will look in due course.

 

Read this VERY carefully, EDIT it as required and use this as your affadavit...

 

The defendant totally disputes the debt.

 

The alleged creditor has provided no proof that the debt is barred by the statute of limitations Act 1980

 

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.

 

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 Capquest. via guaranteed/recorded 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) – 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),

 

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, 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 by first class - 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 lone parent/low income earner/low income family (Chezza - EDIT these as required) 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).

 

Please, please, please read and try and understand what is being said here.....

 

Take the forms in yourself to the court (ring them first to make sure they handle bankruptcies) ask the court staff to swear in the affadavit !!!

 

RING the court on a weekly basis to find out IF a hearing has been set (the reason I say ring rather than watch the post is because items from court can and DO go missing)....I don't want you to miss a court hearing date for the Stat demand....

 

Any questions please ask....

 

If it gets to a hearing, I will help you with your costs sheet too.....

 

Please try and read as much as you can also on these forums...

[mandyjayne]

Think this needs to be in legal.

 

MJ:)

[Hardupnotfedup]

hehe I said that 10 posts ago still interesting though 42 man's defence is awesome

[derek1]

Many thanks everyone for all your help . I will be filling in the 6.4 and 6.5 forms over the weekend.

 

Once again many thanks

[mandyjayne]

so you did Hardup... still dont know if its been moved as im subbed to it and came through on email..

 

MJ:)

[42man]

You can exclude the piece which says...'the alleged creditor has not sent me a letter before action'....they don't have to for a stat demand.

[JOHNNYBOYJO]

Well they served me with one! They decided to track me down by the land registry. Found name still on property then served me with a statery demand. Went to court to dispute the claim only to find the judge was sided towards hamptons legal.!!! This is a short version of events will explain in detail later when have time. But for now if you have property in your name change it if you can as they take a chance on the fact that your there and file for the demand in the courts.

[gezwee]

Well they served me with one! They decided to track me down by the land registry. Found name still on property then served me with a statery demand. Went to court to dispute the claim only to find the judge was sided towards hamptons legal.!!! This is a short version of events will explain in detail later when have time. But for now if you have property in your name change it if you can as they take a chance on the fact that your there and file for the demand in the courts.

 

Welcome to Cag JBJ

 

Think you'll be best served starting your own thread on this if you need assistance.

 

If the judged has erred on a triable case and you have not reached petition stage yet you can get this overturned depending on the particulars.

 

Gez

[babydoll0141917]

subbing

[derek1]

Johnnyboyjo could you please let me know the circumatances of your case.

 

thanks

[vinegarvera]

Subbing with interest - you may also want to look at my thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/230908-help-statutory-demand-costs-7.html

 

Hope it helps...

[blind-as-a-bat]

Johnnyboyjo could you please let me know the circumatances of your case.

 

thanks

 

 

michris from MSE i presume? have i got the right thread?

 

In short they are taking a gamble you have equity in the property and you are entitled to a beneficial interest of said equity.

 

That basically means if your house is worth 200k, and the outstanding mortgage and any debt secured on the property is less, you can be seen to have money in the property, for arguments sake, lets say after the mortgage and any secured debt is settled, that amount is 50k, you will be perceived to have a beneficial interest of 25k, unless the situation donates otherwise and it can be argued your ‘share’ is higher or lower, but that gets complicated, so lets assume 50-50.

 

If they follow through, that 25k will become an asset of your bankrupt estate, and will be realised by the Official receiver, firstly by offering your partner or a family member the chance to buy them out as it where, or forcing the property to be sold, the fact it is in joint names matters not, but your partner will get there share of the proceeds of the sale, after costs.

 

If you have no equity in the property, then if they do follow through, any future beneficial interest can be bought back for the token sum of £1 plus legal fees, £250-500, if you have no other assets of value, or surplus income to warrant an income payment agreement/order, they get nothing out of making you bankrupt, and lose the £1000-1500 court and legal fees it costs to make someone bankrupt.

 

So the risk here depends if you have equity in the property.

 

I have to be honest, using a stat demand and then following through with a BR petition, is very heavy handed for such a small (relatively) debt.

 

As has already been highlighted, you need to ascertain if the balance is valid, if after unlawful charges are deducted the outstanding sum is less than £750, they cannot petition for your bankruptcy, so contest the stat demand on the fact you believe the balance includes unlawful charges, if you can, issue an SAR to find out for sure.

.

[derek1]

Dear all

 

I have just got back from swearing in forms 6.5 and 6.4.

 

They will be passed to the judge and if it goes to a hearing that should be in July or August.

 

Thank you for all your help.

[derek1]

Dear all

 

I have just got back from swearing in forms 6.4 and 6.5. They will be passed to a judge and the hearing will be in July or August.

 

Many thanks for all your help

[derek1]

Dear all

 

I have just got back from swearing in forms 6.4 and 6.5. They will now be passed to a judge and the hearing will be in July or August.

 

Many thanks for all your help

[vinegarvera]

Good luck Derek - keep us updated!

[JOHNNYBOYJO]

Welcome to Cag JBJ

 

Think you'll be best served starting your own thread on this if you need assistance.

 

If the judged has erred on a triable case and you have not reached petition stage yet you can get this overturned depending on the particulars.

 

Gez

 

hi

Dont know what the triabl case means sorry.

I was orriginally renting my property out to tennets,However on moving back into my property i recived a notice from the land registery stating that a B10 Bankropcey notice and been recorded on my property and a hearing set at the local courts regards this.Haveing atended the hearing i had disputed some of the charges that this firm had made only to have the judge go in faver of hamptons legal regards them notefiying me that this hearing was taking place.If it was not for the land registry i would not have known about the hearing. It was a hearing regards weather to serve the Statutory demand though the letterbox.! More Charges. Yet they had stated that they had done so twice.

This is for a debt dateing back 6 years.

[gezwee]

hi

Dont know what the triabl case means sorry.

I was orriginally renting my property out to tennets,However on moving back into my property i recived a notice from the land registery stating that a B10 Bankropcey notice and been recorded on my property and a hearing set at the local courts regards this.Haveing atended the hearing i had disputed some of the charges that this firm had made only to have the judge go in faver of hamptons legal regards them notefiying me that this hearing was taking place.If it was not for the land registry i would not have known about the hearing. It was a hearing regards weather to serve the Statutory demand though the letterbox.! More Charges. Yet they had stated that they had done so twice.

This is for a debt dateing back 6 years.

 

JBJ

 

You'll need to start a thread and give us a timeline of events to take a look at.

 

Its easy for anyone looking in to make assumptions regarding the method you were served so its best if you lay everything out in a post that is concise.

 

Gez

[JOHNNYBOYJO]

how do i start a thread! thanks

[gezwee]

how do i start a thread! thanks

 

Hi JBJ

 

Click on the link Legal Issues - The Consumer Forums which will take to you the legal forum.

 

Click the 'New Thread' button, given your thread a title and fill in the details of your case to date.

 

Gez

[MandM]

Subbing,

 

M