Bankruptcy Petition Please Help

[aghast1]

Date order of events:

 

January 2002 / March 2003

Stupidly, but under the prevailing “easy money” culture of the time I ran up a debt of £13,700 in unsecured loan and interest and at the end of the above period defaulted and assume (though I have no record) that a default notice was made. The only record I have is of a statement dated 5th Dec 02 from the Woolwich showing that amount.

 

March 23rd 2010

Received a letter from Weightmans solicitors, Informing me that their client “Equidebt Ltd” (quoting the Woolwich account number and Equidebt's new account number) had now been “passed to their insolvency department” and that a statutory demand had been sent out to me. It also rambled on about how reasonable their client was citing as proof of this that they would be willing to accept a mere 75% of the full amount (£10,337.09p).

 

Needless to say at this point I couldn't have raised the £337.09p let alone the £10,000. But, having read a number of posts in various forums, I had in my mind good reason to believe that the debt was “time barred” - more than 6 years having past without me having made any acknowledgement of the debt or contacting either the Woolwich or Equidebt.

 

April 29th 2010

Statutory demand was subsequently posted through my letterbox and I also received another letter from Weightmans berating my lack of “co-operation and claiming that their client had instructed them to proceed though, “..in the interest of all parties best interests would be served by settling the matter amicably we are therefore prepared to hold off action until 4th May 2010 to allow me time discharge debt or provide security (just 5 days?).

 

I noticed from the Statutory demand notes that the debt had been acquired by Equidebt on 22nd Oct 2006 and further down the notes, “Accordingly, the defendant was sent a default notice in respect of the agreement pursuant to section 87(1) consumer credit act 1974. I do NOT recall ever receiving such a default notice at that time some 3 years 'after the event ' so to speak. But I had been assured reading the debt forums that 99% of the time this SD was a tactic to scare people into acknowledging the debt in order for them to pursue it. This indeed seemed to be the case as I heard nothing until:-

 

June 3rd 2011

Over a year later and I received a letter from Weightmans enclosing a service copy of the bankruptcy petition and the sealed orders of the court dated 21st March, and 12th May respectively. On examination, apart from the service copy (form 6.7), There were two other documents one was Order of Adjournment of Bankruptcy Petition:

Filed 2nd February 2011, and upon reading a letter from Weightmans for Equidebt And upon reading the evidence it is ordered that the petition is adjourned 6th June 2011 (and dated 21st March 2011.)

[i don't know any of the reasons of letter contents]

The second document was Order for substituted service:

This gave a hearing notice for 8th July 2011 (with a “penned in” date of 12th May 2011 almost as an after thought).

 

I received the letter dated June 3rd on Sat 4th and was already feeling unwell (severe gastric problems and other symptoms) and naturally put this down in part at least to the numbing shock. As soon as I could, Tuesday 7th June I went to my local Citizens Advice Bureau where after and initial assessment session I was recommended and appointed a “specialist” session in two weeks time. I was assured that that still gave plenty of time to respond to the petitions, court orders etc and that if necessary they would take over and even act on behalf. What a mistake!

By the time of the “specialist” session (Tuesday 21st June) I was feeling really unwell and had already been signed off work by my doctor but I half fainted and woosed my way through without receiving any useful information at all – it was all maybe, possibly, up-to-you, depends stuff and nearly all of it off a computer screen or after a 10 -20 minute disappearances to see “my supervisor”. I do not however wish to denigrate the work of the selfless volunteers who man these virtually thankless post with ever less funds, but have to say in this instance it was useless and I was now very ill, utterly desperate and with virtually no time left to respond. That afternoon I went back to my doctor who after examination and with reference to blood samples taken earlier the previous week rechecked my blood sugars. They were off the scale, quite literally, and I was sat down and admitted to hospital a couple of hours later.

I was a newly diagnosed diabetic with the added complication of some as yet undiagnosed intestinal problem ( I face more tests, scans and colonoscopy this month). Nontheless, as you can imagine, mental fears grew as I lay in bed with the court case ticking away and as soon as I was able I called the court from the hospital to beg leave to adjourn from the 8th July hearing date. The court office was helpful and said I would have to write to the judge and send some evidence from the hospital. I managed to get a letter from the doctor treating me and had it delivered together with my plea via recorded delivery. Still in hospital, I called (actually pestered I suppose)the court office who eventually conformed receipt, that the judge had seen it and had asked them (the office) to “request” Weightmans agree a stay for three weeks. I was unaware (as in nearly everything regarding this procedure) that a a man of such standing and repute as a county court judge should have to “request” such a thing of a firm of solicitors of somewhat less reputation shall we say. I asked the court manager what the likely outcome would be in his experience, to which he replied that they (Weightmans) are unlikely to refuse a judges request – but still another “maybe” for me adding to my fears and worries, which as bad as they are, do not compare with the pitiful plight of my poor wife.

I am now out of hospital but still too unwell to even consider returning to work for another month at least, but with the dice weighted (definitely no pun intended) in favour of Weightmans I have to fight on and would be extremely grateful for any help, advice or word of similar experience from any forum members.

I realise that this post takes some reading but I wanted to be as complete as I could.

[rebel11]

Hi ag

 

Welcome to CAG

 

The guys will be happy to advise as soon as they are available.

[Undercover-Elsa]

Hi Aghast1,

Welcome to CAG, and I'm so sorry to read of your problems. It's hard enough coping with these threats when you're well, but you seem to have a lot on your plate at the moment.

 

I've put out an SOS to someone who may be able to help.

In the meantime, it's crucial to find out whether this debt was Statute Barred when the issued the original Stat Demand, and indeed whether the hold the correct documentation, ie Consumer Credit Agreement, Default Notice, Notice of Assignment etc.

 

The Statute of Limitations starts at the point of "Accrual of Cause of Action", which basically means the point when they gain the right to demand the full balance and enforce the debt. It's not always as simple as the last payment...you have to have missed the number of payments required before they issue a default notice, depending what's laid down in the T&C's. Usually 1 to 3 missed payments.

More on that if necessary, but in the meantime have you received/requested the documentation? if not you need to do that asap.

 

Elsa x

[42man]

You will need to move extraordinarily quickly........you will need to set aside both the petition AND the stat demand....although you are supposed to submit a petition within 3 months of the statutory demand....the debt is indeed statute barred. You MUST appear at the hearing and ask for an adjournment. State that you believe that there has been an abuse of process as the demand was delivered 12 months before the petition was presented....You really normally need to submit the BP defence one week before the hearing....Can you get to the court to pick up ALL the papers in the court file ?

[42man]

In the court file there should be an affadavit of service (this states how they had attempted personal service and failed) it is only at this stage if they have failed to deliver it to you by hand can they look to substituted service.....you would be amazed how many attempt to cut corners....if it isn't in there or no witness statement as to how they attempted personal service then it will be an abuse of the process which in your defence will be supported by this -

 

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

 

Also, if there has been an adjournment without you knowing, then they HAVE to provide an affadavit of continued service.....which from what you have said they haven't done !!!

[42man]

You MUST fight this.....especially so as it is statute barred....

[Undercover-Elsa]

Thanks for answering my SOS 42man...I hope Aghast comes back on soon to read this as obviously time is short.

 

Elsa x

[aghast1]

Thankyou to everyone who has replied to my post - your support and very helpful comments are as a lighthouse in a storm.

I shall be pestering the court once again tomorrow to see if I have managed the adjournment or not (assuming they have an answer themselves), otherwise if the hearing stays set for Friday my options seem very limited indeed.

I will definitely go along to the court in person and see if I can at least get some copies of the "evidence" that Messers Weightmans have submitted and if possible give notice (albeit late) of my grounds for dismissal.

I shall certainly keep the forum posted as to developments - even if unsuccessful, as anything may turn out to be useful for future reference.

 

I have to go back to hospital for more tests tomorrow and will try to get over to the court afterwards, but whatever occurs I will be back here again in the evening to digest any more helpful info available, though I can't sit for too long in front of a PC screen ( damn Diabetes affecting my eyes apparently!).

Thank you all so much again

[42man]

FOR THE BANKRUPTCY PETITION

 

You will need form 6.19

 

FOR THE STATUTORY DEMAND

 

You will need forms 6.4 and 6.5

 

You can find the forms here - http://www.insolvency.gov.uk/forms/englandwalesforms.htm

 

 

The creditor has to present a petition within 4 months of the service of the statutory demand - if there is no statement in the court files as to why the petition has been delivered late then this is an abuse of process (when you go to the courts to get ALL your paperwork tell them you are a LITIGANT IN PERSON (they may charge you a small copying fee)

 

45.114 Delays in presenting the petition

 

Where the petition is based on a statutory demand which was served more than 4 months before the presentation of the petition, the petition must include a statement explaining the reasons for the delay

 

Also in the court files will be an affadavit / witness statement stating that they had made every attempt to serve the statutory demand on you IN PERSON...if there isn't one there then this is also an abuse of process - both the above points tie in with the High Court ruling in your favour

 

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

 

If there has been an adjournment without you knowing then they need to provide an affadavit of continued service (this should also be in the court files)

 

For the 6.4 you can use this link to help you - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489

 

For the witness statement 6.5 - (and you can use some if not most of this for your 6.19) - Have you sent out a CCA request to Equidebt ?

 

Look at this thread - http://www.consumeractiongroup.co.uk/forum/showthread.php?309388-capquest-statutory-demand

[aghast1]

First of all I apologise for not replying again sooner to all the excellent advice received (a "blip" in the health issues).

 

However I am pleased to report that I got the best possible birthday present yesterday when I called the court and discovered I had won an adjournment until 12 august. Now at last I have a little breathing space to order my defence and plan some counter-attack arguments. Many thanks to 42man for providing me with details of and where to find all the necessary documents/forms to complete which has undoubtedly saved me a huge amount of time.

 

Because I was in hospital the re-scheduled court hearing document has been sent there but I am completely confident it will be posted on to me, as was the copy of the court's letter to Weightmans asking for the adjournment. I am assuming that I now have the necessary time to ask for all relevant "evidence" presented by Weightmans and can present the plea for dismissal forms when I go to the court and get copies.

 

I can't tell you the relief I felt when I discovered I wouldn't be facing all the stress this Friday - all I can say is that I slept reasonably for the first time in over a month and without question the re-assurance that this forum has brought in just a few short days has played it's part.

 

Now for some sugarless tea and fight the good fight! Will report back on all developments

[42man]

Once you have ALL the paperwork from the court files, please give a brief overview of what is in there...

[aghast1]

Hi 42 man thank you in advance for your continued input into my case.

 

In response to your questions I have just returned from the court today and managed to get the clerk to fish out my case notes. I asked if I could have copies of any evidence they had submitted to the court but he read through the file and said there was nothing there that I didn't already have i.e. Their petition letter and the only evidence being that which was written in sections 2,3 etc .

 

I have copied the original letter I received on 4th June together with the petition, the order of adjournment and Substituted service - my first sight of ALL of these documents was that day 4th June! I had no idea this had all been going on since the Statutory Demand delivered 23 rd March 2010

 

In the meantime (dated 7 th July 2011) I have received another letter from Weightmans suggesting how cooperative they and their clients have been and "requesting" all sorts of sensitive personal info ahead of the hearing (copy of this and their form also attached). Are they not exceeding their rights just a bit here? what business is it of theirs to have my wife's info for example or my national insurance number? Needless to say I have NOT filled it out until I have some advice!

 

Should I have had a copy of the original petition when it was issued for instance?

 

I have the relevant document to issue my intention to oppose (6.21) but would now be the right moment to ask for full disclosure from Weightmans? ( have a letter template for this but have only one query - the bit about letter super ceding data protection request?)

 

I continue to be sincerely grateful to the forum for their help

6.7 petition doc, 6.23, 6.15 and Weigtmans cover letter.pdf

Weightmans Financial declaration.pdf

[42man]

It says there is an affadavit from the process server, which I presume is the attempted PERSONAL service, if it is JUST the affadavit with regard to the petition and NOT the affadavit of how they attempted to serve the STATUTORY DEMAND on you then this is also an abuse of the process.....do you have this ? if not you will need it.....however it seems they ran out of time to present the petition AFTER the statutory demand, I believe it is only allowed within 4 months of the service of the statutory demand.....if they have filed it late then they have to state why, which from what is said in their paperwork above they HAVEN'T....this is an abuse of the process in line with the Boggis case above....

[42man]

It is important that you set aside the statutory demand AS WELL as the petition......your paperowrk the stat demand set aside and the petition opposition will need to be in the court along with any additional witness statements, and your summary of costs at least 7 days before your hearing....

 

I think sending out a CCA request might be a good idea too, and your statute barred defence will be crucial along with the potential abuse of process....

 

Can I also suggest you send a letter to Weightmans also....

 

Dear Sirs / Madam

 

Further to my recent bankruptcy hearing which was adjourned until (xxxx date)

 

I wish to inform you that will be applying to dismiss the petition and the statutory demand.

 

I will provide you with a full summary of my costs to date within the next 2 weeks.

 

Yours faithfully.

 

XXXXXX

[42man]

If you want help writing a defence then do let me know....but you will need to spend some time reading through these forums....!!

[payingonlyencouragesthem]

Might it not be a good idea to phone Weightman's and explain the SB aspect? If it really is SB they will almost certainly back off without any further fuss. On the other hand if they have an SB spoiler up their sleeve you'll certainly need to know about it first before you file your defence.

[aghast1]

I have read through numerous forum postings in order to try and get my head round the correct procedures and what constitutes an abuse of process but I have to be honest and confess to being confounded by the language and terminology. I realised that I hadn't scanned a copy of the original SD which I have done here now and Weightmans follow up letter a few weeks later also scanned here. Please bear in mind that I had no other contact with them, letter or otherwise, from that date (29 th April 2010) until the bombshell of of the 4 th June this year when ALL the other docs came at once (Petition, adjournment and Substitute service).

Please can anyone tell me the following (again apologies if I appear so dense):

 

What exactly, if anything. from those documents and my earlier history of events constitutes an abuse of procedure/process

 

What possible "spoilers" to the SB status could they conjure up

 

Is it normal or reputable practice to send out a form requesting personal details for my wife and I (including such things as bank accounts and sort codes and NI numbers

prior

to the hearing establishing their rights in this petition?

 

Finally I am unsure wither or not to actually sign any disclosure request sent to Weightmans

 

The clerk to the court assured me that there was no other information in my file other than that I already had so I propose (tomorrow or Friday to allow time for response) to complete the disclosure demand letter for Weightmans while I still have time to then Apply for dismissal depending on what info I receive.

 

My thanks to all caggers who are just about keeping me sane from day to day!

SD notice 2010.pdf

Weightmans follow up letter to SD.pdf

[42man]

Good point made by payingthemonlyencouragesthem (cheers Mark).

 

As you can see above one of the Insolvency Rules is that a petition should be served within 40 days of the statutory demand....otherwise they have to give a statement in their affadavit/witness statement WHY they have not done this.

 

Also if they are attempting 'substituted service' (and to be allowed to simply post a demand through a door' then they would have to show via a witness statement / affadavit how they had attempted personal service and failed to serve the demand on you personally....it seems there is NO affadavit of personal service from the documents above.....

 

And to add that if there was any adlournment (that you didn't know about) then they have to supply an affadavit of continued service.....

 

This fits perfectly with this hight court case

 

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

 

Any of these individually or as a collective should be classed as an abuse of process....all you would need is a half decent judge. And as there has been an abuse of service then you should claim your costs back....bearing in mind that at least 7 days before your hearing you need to submit your stat demand set aside, the petition dismissal application and your costs to the court.

 

I also suggest sending out a CCA request too ASAP

 

You might even like to sned out a CPR31.14 request, although CPR's usually only cover the civil rules, then I know of one cagger who won a case on non disclosure in the insolvency courts due to non disclosure against a CPR31.14 request

 

So a letter like this....(sent recorded)

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

Dear Sir/Madam

 

Further to your recent letter dated XXXX

 

Please take note that I will be opposing the bankruptcy petition and setting aside the statutory demand due to the debt being barred under the Limitation Act and several other discrepancies under the Insolvency Rules

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Also please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreements. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the acquisition assignment*

 

3 the default notice*

 

4 the subsequent termination notice*

 

5 statements for the duration of the agreements*

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the statutory demand and petition be dissmissed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[42man]

The best way to defend is to fight.....don't be a soft target...Weightmans are hoping you haven't a clue and will curl up. The fact that they actually probably know it is statute barred and yet are still happy to destroy somebody's life is simply appalling....you do not have to provide them with any kind of disclosure whatsoever....as I said before if you require help then let me know....but you have to potentially be prepared and stand up and fight this....I personally feel you have a very good case and defence, I'd be convinced with just the statute barred argument let alone the abuses of process.....once they see your letter they will know that you are prepared to fight an back off.....(now you are more knowledgable and I was the solicitor then this is one I wouldn't want to fight !!)

 

You could be in for quite a substantial amount of costs.....is it a gamble they want to take with a half decent judge ? I really don't think so....

[payingonlyencouragesthem]

"What possible "spoilers" to the SB status could they conjure up"

 

Phantom token payments to the account within the last 6 yrs is the most popular. If you sent £1 for a CCA request or £10 for a SAR they may try to claim these were actually token payments that reset the clock. Also, they might try saying that something in any correspondence you had with anyone in the last 6 yrs constitutes a written admission of the debt.

 

42man - glad to see you are still fighting the good fight!

:shock:

[aghast1]

Many thanks for your prompt replies guys.

 

I have now drafted a CPR 31.14 request for Weightmans and a 6.19 for the court, both of which I will send out recorded delivery tomorrow upon approval of your good selves and your knowledge (copies attached). If I need to make any amendments then please let me know.

 

As I have never asked for a SAR or a CCA I can't see how they could use that as "proof" of acknowledgement - but do I need to do those in addition to the CPR request I have written?

 

One further tiny niggling doubt I have regards the service of affidavits etc I know some bloke turned up to deliver the Statutory demand so that's not in question, but the substituted service order that I attached previously does mention the judge reading the affidavit of some Dave Clare, though I have no idea what affidavit this refers to or the contents. If anyone could spare the time to read through the court documents I attached and clarify me on this aspect I'd be really grateful

 

Thanks (slightly less than before)Aghast1

Notice to Oppose Petition.pdf

Edited July 15, 2011 by aghast1

[42man]

You have to show that you have made every reasonable attempt to gain information....so a SAR and aCCA request would be a must...you MUST also set aside the stat demand at the same time as the petition....

[42man]

Please take off your address and name !!!

[42man]

You need to quote high court law cases which set a precedent over a county court in support of what you are saying.....I think you should write it something along the lines of. (see below)..you MUST send off the CCA request ASAP (send recorded delivery and enclise a £1 postal order) KEEP COPIES OF EVERYTHING...and have a good read here below (and round these forums) so you know what is being said.....your 6.5 will mirror what is said here (apart from the petition delay) and don't forget to fill out form 6.4 too....make sure you refer to your CCA request too, and a copy of your CPR31.14 letter, number it up as it is in rough form below....

 

Rule 45.114 Delays in presenting the petition

 

Where the petition is based on a statutory demand which was served more than 4 months before the presentation of the petition, the petition must include a statement explaining the reasons for the delay

 

The defendant notes that there is no affadavit or witness statement which addresses the the fact that the petition has been served over 4 months from the demand

 

The defendant avers that there is no affadavit of service within the court files as to how personal service had been attempted.

 

The defendant notes that in the absence of previous adjourned hearings that no affadavit of continued service has been served upon the defendant

 

In support of abuses of process I quote

 

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 defendant states that despite requesting information under the civil procedure rules and a legal request for a copy of the agreement (and under time constraints for a disclosure under the data protection act) made under the Consumer Credit Act 1974. It is noted that there are no documents attached to either the statutory demand or the petition with regards to the agreement, deed of assignment, notice of assignment, default notice and subsequent termination notice nor evidence of any potentially missold payment protection insurance or indeed any statements for the duration of the agreement/s

 

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;

 

 

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.

 

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

 

1. 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

 

In PHOENIX RECOVERIES (UK) LTD SARL v DEVENDRA KOTECHA (2011)

 

A creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made. In those circumstances, P had not proved that that obligation was satisfied, and it was therefore not entitled to progress to enforce the debt against K under s.78(6). In this case the original creditor had assigned / sold the debt to Phoenix Recoveries.

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 provided
  

 

• 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

 

 

2 -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.

 

 

The defendant also crucially states that the debt is barred by the Statute Of Limitations Act 1980.

 

I gracefully request that the judge dismisses the statutory demand and subsequent petition due to the above facts.

The Judge orders the claimant to pay my full costs + compensation in light of the distress and damage to my family and reputation in support of this I quote

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

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 collectionwhere 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). Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

 

I believe the facts herewith in this form are true

[42man]

As for your costs then please read this - http://www.consumeractiongroup.co.uk/forum/showthread.php?211818#post2337865