£20000+ CapQuest Statutory Demand - Help to set aside

[letsdothis]

I have reported this thread to the site team to see if they can advise further for you.

[citizenB]

reported post acknowledged, just having a look over your thread to see how to help.

[citizenB]

gez posted a link for you earlier which I have resposted in full .

 

I see you need to get this filed at court by 23rd August, yes ?

 

Check your affidavit against the list below and see how you are doing.

 

 

Have a look here...... http://www.consumeractiongroup.co.uk/forum/showthread.php?219589-MBNA-are-trying-to-make-me-bankrupt

 

Should have everything you need for completing forms

 

Gez

 

There are 8 key elements to an SD set aside, if the creditor fails on any point you can direct for a set aside and claim costs.

 

Forgive me, its late and i can't remember the exact details, may be worth trying 42man if inbox isnt full, in the meantime I've pasted the below to set your mind at rest; ideally you'd have penalty/unfair/PPI charges to invalidate the SD:

 

 

What is a statutory Demand?

 

 

A Statutory Demand is the first step to bankruptcy against an individual and this is prepared and served without any court involvement. A statutory demand can be served as soon as the debt is due and a judgment is not necessary. If the debtor disputes the claim, he or she can apply for the statutory demand to be set aside. The bankruptcy court will halt the bankruptcy if there is any dispute about the sum outstanding. It can be relatively easy for a debtor to have a statutory demand set aside and the process can result in an order for costs being made against the creditor.

Please note that a statutory demand in 90% of instances is 'bluffing technique' used to scare a person into paying up. If a bankruptcy petition does not follow then this will become apparent.

 

 

Why are Statutory Demands to powerful?

 

• The Statutory Demands procedure is simple to implement.
  
• To issue a statutory demand all you need to do is complete a form.
  
• You can send a statutory demand by recorded post, without the need of personal delivery.
  
• You do not need a solicitor to issue a statutory demand.
  
• You do not need to pay expensive court filing fees issue a statutory demand.
  
• People assume that a solicitor has been utilised so get scared and pay immediately.
  

What is the point of a statutory demand?

 

 

 

 

A statutory demands is supposed to make sure the person in debt pay the amount owing this is either carried out by paying in full or:-

1. It is a way to get the debtor to offer his or her property as security or;
   
2. It is a way to get the debtor pay up in another agreed way. Such as instalments.
   

When is a statutory Demand a threat?

 

• A statutory demand is something to worry about if your debts are over, say, £1000.
  
• A statutory demand is a threat if the person after the debt is wealthy enough to carry out the bankruptcy threat the whole way.
  
• A statutory demand is a cause for concern if the person after the debt is bitter and angry enough to actually make you bankrupt.
  
• If you are a home owner or actually have assets you are at risk of losing if you go bankrupt then a statutory demand is a threat.
  
• The person you owe the money to knows you are a home owner or have assets therefore is willing to spend money making you bankrupt.
  
• If your reputation is at risk by the public finding out about the statutory demand process being started against you.
  

How to reduce the risk of bankruptcy following a statutory demand.

 

• To avoid bankruptcy reduce the debt to less than £750.
  
• Offer to pay the debt by instalments.
  
• Make a reasonable offer to settle the debt.
  
• Apply to have the statutory demand set aside
  

The procedure to get a statutory demand set aside.

 

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy.

One method of avoiding bankruptcy is to get the statutory demand set aside.

 

 

 

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

• 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.
  

What are the time limits to get a statutory demand set aside?

 

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

 

What forms must be used to get a statutory demand set aside?

 

Forms 6.4 (application) and 6.5 (affidavit) must be completed and taken to the court.

 

Can the court dismiss an application to set a statutory demand set aside?

 

Yes, if application if there are no reasonable ground to do so.

 

What forms are typically used in the statutory demand process?

 

1. Form no: 4.1
   Statutory Demand under section 123(1)(a) or 222(1)(a) of the Insolvency Act 1986
   
2. Form no: 6.1
   Statutory Demand under section 268(1)(a) of the Insolvency Act 1986. Debt for Liquidated Sum Payable Immediately
   
3. Form no: 6.2
   Statutory Demand under section 268(1)(a) of the Insolvency Act 1986. Debt for Liquidated Sum Payable Immediately Following a Judgment or Order of the Court
   

 

 

[jackflashskunk]

thanks for that. i had noticed gezwee's post earlier. I have attached a word doc with the details I have so far on my affidavit. I was hoping someone could look at the word file and tell me if it looks ok to file with the courts?

 

thanks

[citizenB]

The affidavit looks ok to me.

[citizenB]

You will need to file your costs at the same time. I dont know whether you do it on the form or separately, I will have look and cconfirm that for you.

 

I think you also need to find out whether you are to send a copy to CapQuest or whether the court will do it for you. Do make sure you take a copy for yourself.

[jackflashskunk]

awesome. i have found a bit more info to put in the affidavit, will post it once im home. cheers for your help!

[citizenB]

Yep, you need to add your costs to the form.. see post linked below :

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?268951-Capquest-sending-Statutory-Demand-help-please&p=3066091&viewfull=1#post3066091

 

it is post number 121 if the link doesnt take you directly.

 

It is someone else's affidavit, but includes some costs that you could amend to suit your own circumstances.

[mandyjayne]

You will need to file your costs at the same time. I dont know whether you do it on the form or separately, I will have look and cconfirm that for you.

 

I think you also need to find out whether you are to send a copy to CapQuest or whether the court will do it for you. Do make sure you take a copy for yourself.

 

 

If it helps... what i was told to do, and did, was take 3 copies to court you have to swear them in, (its free to do this)

one set is for the court, the other was sent by the court to (in your case) Capquest.

 

I did not put my costs in until the last hearing and i did not send a copy to the other side. If you do send a copy leave it till the last hearing and as late as you can.

 

MJ

[jackflashskunk]

ok, i have attached latest version, including a nice paragraph about default notice not being served. your advice mandyjane sounds good. ill leave it to the day before the hearing, incase i incur any more costs and also o include petrol etc for the hearing date. thanks for everybodys help. i seriously want to redress some of the misery capquest have inflicted on me.

 

for the life of me i cant work out how these people sleep at night. feeding off misery and despair, dishonestly most of the time too. if i do have this set aside and also get awarded costs, i will donate half to cag. this site is amazing

nocosts6-05.doc

[caro]

Have you seen these threads which may be helpful?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?112326-DCAs-Statutory-Demands-a-few-strategies&p=1102399&viewfull=1#post1102399

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?263152-Template-On-6-4-And-6-5-Statutory-Demands-People-Still-Getting-It-Wrong&p=2973710&viewfull=1#post2973710[url=http://www.consumeractiongroup.co.uk/forum/showthread.php?263152-Template-On-6-4-And-6-5-Statutory-Demands-People-Still-Getting-It-Wrong&p=2973710&viewfull=1#post2973710][/url]

 

Definitely send the telephone harassment letter. Next time they phone tell them you'll only communicate with them in writing.

[jackflashskunk]

hi. i think my forms 6.4 and 6.5 are as tight as they are going to get. ive got 2 more questions tho;

would it be worthwhile me sending a letter by recorded delivery to capquest requesting all information they have on me?

should i mention on form 6.5 i have sent a sar to egg but not received the reply yet?

 

cheers

[mandyjayne]

hi. i think my forms 6.4 and 6.5 are as tight as they are going to get. ive got 2 more questions tho;

would it be worthwhile me sending a letter by recorded delivery to capquest requesting all information they have on me?

should i mention on form 6.5 i have sent a sar to egg but not received the reply yet?

 

cheers

 

Hi..

 

yes attach to the court docs, a copy of the SAR you sent to Egg, (did you send it recorded delivery) you should always, and keep the proof of postage. If you have proof of postage then attach also.

 

I dont think Cap will respond to anything you send them at this stage, but the only thing you could do is CCA them, but i think you already have received your credit agreement from them?? sorry if thats not correct but its on your first post i believe!

 

Another bit of info that may help you, from Curlyben...

 

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—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

(2)This section does not affect the provisions of the M2Policies of Assurance Act, 1867.

[F1(3)The county court has jurisdiction (including power to receive payment of money or securities into court) under the proviso to subsection (1) of this section where the amount or value of the debt or thing in action does not exceed [F2£30,000].]

　

Along with the major fact you have no documentation to link you to this debt you must point out that you didn't receive notification of any assignment as per LoP s 136 so you must hold them to strict proof they have the ability to issue this action against you, so they MUST prove the assignment was valid under LoP s196 which demands REGISTERED mail.

MJ

Edited August 19, 2010 by mandyjayne
add on

[jackflashskunk]

ok. ill be going to court to apply to set aside tomorrow as i cant get time off on monday, which would have been the 18th day after being served the sd. ill let you know how the court responds as soon as i receive a letter or something.

 

cheers

[jackflashskunk]

job done. had one of the addresses in the wrong box, but all sorted. fingers crossed i get a response soon with a hearing date. thanks everyone who has helped

[citizenB]

job done. had one of the addresses in the wrong box, but all sorted. fingers crossed i get a response soon with a hearing date. thanks everyone who has helped

 

Excellent. Please keep us updated.

[jackflashskunk]

cheers citizen. i will prepare a schedule of costs to submit the day before the hearing, if i get a hearing date. not taking anything from granted. was quoted £220 an hour from a local solicitor to help prepare the affidavit, maybe he hasnt heard of the fine help available here at cag. if i get costs, i will definitely stick to donating half to cag, this place is priceless to those in need

[gezwee]

Hi

 

Sorry, been trying to catch up with threads but broadband keeps going down.......... 'if' you get to a hearing - you may not, as they'll probably write to the court requesting discontinuance you MUST present costs, and you MUST present the judge with all the facts and persuade him/her that this is a triable issue best served pursuant to CPR.

 

Usual Crapquest stance is to file then try to duck out of costs. You'll probably receive a polite copy notice that they wish to discontinue on the proviso that each party meets their own costs with a goodwill offer of 1 or 2 hours at CC rates...... I'd screw them down to a minimum of £500.00 although I'm sure you'll be able to present resonable costs far in excess of this

 

Good luck

 

Gez

[jackflashskunk]

hi again

 

got a call from someone called tim from capquest. Asked to speak to me, i said i would prefer to speak to barry davies, this tim chap just repeated twice, so, you are not willing to speak about the statutory demand, in between which i said i am but only to barry davies. then he hung up. it wasnt from the normal capquest numbers, it was an 0208 number

 

any advice pls?

[jackflashskunk]

i mean, should i have discussed it with him, or just wait for a court date and have it out then?

[jackflashskunk]

bumpage

[caro]

Tell them you will only deal with them in writing and not to contact you by phone again.

[jackflashskunk]

got a court date in november. doesnt say how long its due to last. is there anywhere i can look this up?

[citizenB]

I think time allocated is usually 30 minutes. You could check with the court, I thought they put the time allocated in the Order from the court.

[jackflashskunk]

got a letter from capquest today legal dept. saying i havent been in contact since being sent the statutory demand, i havent applied to have it set aside and i have one final chance to pay them or they will bankrupt me.

i feel happy knowing i have a date for my set aside application, at a different court to the one they told me to go to. does this kind of incompetence help me in any way?