London House say they are going to issue me with a Statutory Demand- almost won with costs!!

[gribzig]

Thank you! Just been reading other threads again and realised that although I mentioned costs in my affidavit have not submitted costs claim to court - can I still do that before the hearing at lunchtime today?

[Seminole]

Normally you are supposed to do the night before. I'd ring the court and ask them.

[gribzig]

Just phoned the court and a very helpful man told me that as this is listed for just 15 minutes it will probably only be a first hearing and that costs are dealt with at the end. He said the registrar would give directions on the matter at the hearing.

 

Quite sweetly he also suggested that both parties would be in the waiting room beforehand so that would give us a last chance to talk...

 

Or even a first chance to talk seeing as Lowells have not sent anything in the way of a defence.

[42man]

Just be wary of what you say....I always recommend stating that you will listen as opposed to converse with... on occasions solicitors will try and hoodwink you to say things !!!

[gribzig]

Well, it was all very interesting...young woman solicitor sent by Lowells turned up with a bulging file. Seems she was doing other cases for them that day as the clerk helpfully told me she was in with the registrar but would like a word before we went in.

 

In the event, she simply sat looking at her bulging file and then made a call to Lowells citing my case and asking if anything new had turned up or words to that effect - difficult to eavesdrop without appearing to do so!

 

We then went in, the registrar peered over his glasses, read out my Witness Statement, came to the bit about providing a legible copy of the agreement, peered back at her and said that of course she had to provide that under the terms of the consumer credit act.

 

She nodded vigorously and he then said that he supposed he had better set a date by which they had to produce all the evidence etc and I then could provide mine in turn. He asked if two weeks would be enough and she stated that, as they had all the paperwork, that shouldn't be a problem. This, of course, is that paperwork they have been unable to produce all this time.

 

We now have until August 10th to get in the evidence as I pointed out I would be out of the country soon as I work with Bulgarian orphans during the summer and would not be back until the end of August. Hopefully I will receive the court forms before then. The registrar noted that no hearing would be set until after 31st August bearing that in mind.

 

We all trooped out, she asked politely if I understood what had gone on and I said that of course I did - there would now be an exchange of evidence and then a final hearing. My application for costs, which he ticked, would be dealt with after that final hearing.

 

And so it goes on...now I'm going to have a cup of tea and pick up my child from school. Thank you everyone for your help so far.

[mandyjayne]

they wont produce anything in that two weeks.

 

Sounds like you had the same sol girl i had!

 

Big bundle of papers nothing produced but said they all the paperwork.

 

Put ya feet up, take it easy, costs on the way!

 

MJ:)

[gribzig]

Thanks MJ - took more out of me than I thought so I have been trying to take it easy since the court appearance.

 

If they don't produce anything do we still all have to troop back there come the next hearing date?

[gribzig]

OK - have now received an Order Adjourning An Application To Set Aside an SD from the courts, ordering the Respondent to file and serve written evidence in answer by the end of July and the Applicant (me) to serve and filed writtten evidecne in reply (if so advised) by mid August.

 

We then each have to lodge a Listing Certificate which includes and estimate of the Length of the Hearing by the end of August.

 

The Application will be reviewed by the Registrar in September and parties will not be required to attend - the Registrar will then give further directions...

 

What do I do with all of this please?

[gribzig]

Update - received another bundle from Hamptons which was an exact replica of the other stuff they have already sent me, i.e. an application form for credit, a 'credit agreement' which is relevant to a card expiring this year (clearly not the original), a letter of assignment which is dated last September but which I never received and a letter dated 12th August stating that this is all for the 'upcoming hearing.'

 

The judge stated at the initial hearing that they had to send me any evidence by 27th July so clearly this bundle was way past the allotted time. I also need to lodge this Listing Certificate tomorrow but still have no idea what to do with it...

 

Help please!!!

[gribzig]

Bump

[nicklea]

gribzig,

 

There are two very important things to remember that seem to have been overlooked here.

 

Basically, you have two defences, and admittedly I haven't seen your witness statement, but what I've seen on here won't make your situation clear to the judge.

 

1) There has to be something with your signature on - if they can't provide that then there is no case at all

 

2) The relevant bit about the law of property act is NOT section 136 but section 196. If they have not sent you notice by recorded delivery before commencing proceedings then they have no standing before the court.

 

Here's something that I did earlier for someone else:-

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

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.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

[nicklea]

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 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 plus mileage at 40p per mile.

 

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:-

 

[/font]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:-

 

2 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 be very careful of this - it is taken out of context. You can only claim the litigant in person rate.

 

This is something that is taken from my own set aside application from 2 years ago. You can see the whole thing here:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?133153-Statutory-demand-for-credit-card-debt%28bankruptcy%29Help%21&p=1529356&viewfull=1#post1529356

 

This is how my actual day in court went:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?137495-Statutory-Demand-and-set-aside-application&p=1481216&viewfull=1#post1481216

 

Please be very careful about just cutting and pasting anything without checking everything yourself

 

ps Actually, the relevant bit in the quote above is actually the bit that's not underlined - about the indemnity costs award

Edited August 31, 2010 by nicklea
to add ps

[gribzig]

Nicklea,

 

Thank you for this - I did research the costs issue and was advised by the help desk at the court that I could submit a claim for the litigant in person rate before the final hearing and that it was not normal practice to submit one before then. What I don't understand is this listing certificate and I only have today to drop it in to the court if necessary. Do you have any advice on that/did you receive one?

 

Also, the judge did make it clear to the solicitor muppet I had from the other side that if she could not produce a copy of the original credit agreement then there was no case. As I did not receive anything from Hamptons within the allotted time I am assuming they will attempt to present this evidence to the court but I don't see how it can be used if it was not sent according to the judge's order. If a second hearing is scheduled, can I argue the points you made above or should I ask for more time to submit these as evidence to the court, in which case the listing certificate might be important?

[citizenB]

I dont understand the Listing Certificate ? Is it that you need to list all the documents that you will be using in your defence ?

 

If you have a copy of it can you post it up (or give us a reference number)

[nicklea]

A listing certificate just says that you're ready to go. It comes from the Chancery Guide which basically says how things are meant to be run. Chapter 19 deals with the bankruptcy court and the relevant part says this:-

 

Listing certificates

 

19.13

 

In order to prevent waste of the court’s time each party to insolvency

proceedings may be required by the court to file a listing certificate in

which he will be required to certify whether the directions previously given

by the court have been complied with, whether and by whom he will be

represented at the final hearing, his estimate of the time required for such

hearing and his and his representative’s dates to avoid. On the filing of the

certificates in any particular case the court will fix a date for the final

hearing of the case and notify the parties.

[citizenB]

Thanks for that nicklea

[gribzig]

Apologies for not posting for a while but we've had some serious family problems and a few days ago my partner of ten years walked out on me and our daughter, thanks in large part to the financial pressures we are under. As he has also left his job we are under more pressure than ever.

 

The next hearing date is next week and I am finding it very hard to hold myself together right now so am wondering if I can get it postponed on compassionate grounds? If not, then do I send my response to Hamptons on the last bundle of paperwork they sent bearing in mind the points made above and then send a copy to the court? And do I amend my arguments accordingly and send that in/take it with me?

 

Thanks!

[citizenB]

It might be a good idea to send nicklea a private message and ask if (s)he could look in on your thread.

 

Sorry to hear you have been having such a rough time of it lately.

[gribzig]

OK citizenB will do - thanks

[gribzig]

No response from nicklea and I really need to know if I have to send a response to Hamptons and the court today. Could anyone please advise what I do now?

 

Do I respond and send a copy to the court? Or do I try for a postponement?

[gribzig]

Also, citizenB, how do I change the title of this thread? I have asked before via the site team button as it is not so relevant to the content now. Thanks.

[gribzig]

Bump

[gribzig]

The case is the day after tomorrow and I still don't know if I need to file anything with the court first or simply turn up on the day with my evidence and arguments - can someone please help?

 

They haven't produced the original signed agreement and do not have evidence of sending the notice of assignation by recorded delivery (that's because they didn't). Can I simply say this to the judge?

[Bigdebtor]

If you ring the court they'll advise you if you need to do anything before or if you just need to turn up.

 

Good luck!

 

BD

[gribzig]

Just phoned the court and he said I had to follow the directions given after the original hearing - I explained they had failed to comply with directions by sending their stuff late (at least to me) and therefore I had gone past the date set for my response. Seems the best thing to do might be to go the court tomorrow and file another witness statement saying that what they sent was not what was asked for, i.e. not original agreement and no evidence of recorded delivery for assignation. I could also state that I was replying so late because they did and that's all I can really think of...