Hamptons/Lowell SD threat Natwest Loan/current account - Statute Barred? *** WON + COSTS **

[42man]

I wonder if the other side turned up ? If they did and they haven't filed a certificate of continued service then (as it was in my own case) enough for the judge to throw it out....

 

(14.5.3)

On any adjourned hearing of a petition where a bankruptcy order is sought, in order to satisfy the court that the petitioner has complied with rule 6.29, the petitioner will be required to file evidence of the date on which, manner in which and address to which notice of the making of the order of adjournment and of the venue for the adjourned hearing has been sent to –

 

(1) the debtor, and

 

2) any creditor who has given notice under rule 6.23 but was not present at the hearing when the order for adjournment was made or was present at the hearing but the date of the adjourned hearing was not fixed at that hearing. For convenience, in the Royal Courts of Justice this certificate is incorporated in the attendance sheet for the parties to complete when they come to court and which is filed after the hearing and is as follows – “I certify that the petitioner has complied with rule 6.29 by sending notice of adjournment to the debtor [supporting/opposing creditor(s)] on [date] at [address]”.

[giveITallback]

OK so I should call up and find out why it was adjourned and if due to my or their absence, I'll call them back now.

 

Cheers

[42man]

If it was me then I certainly would.....if Lowells did attend or a solicitor attended then they have a duty to give you a certificate of continued service....

[giveITallback]

I've spoken to the court who are unable to tell me why it was adjourned as apparantly no reasons are given to the clerks or in the notes.

 

 

A letter is being sent out from the court to the complete address again today.

 

 

Does this satisy the points above in 14.5.3 or does the DCA have to serve this themselves with all details?

 

 

The letter mentions in light of the evidence presented the case is adjourned

so not sure what that is referring to maybe they didn't show either

or there are some documents that need to be discussed at a hearing?

 

 

At this stage I'm in the dark.

 

 

I will wait until the date draws nearer or the SAR/CCA arrive in the post.

[42man]

On any adjourned hearing of a petition where a bankruptcy order is sought, in order to satisfy the court that the petitioner has complied with rule 6.29, the petitioner will be required to file evidence of the date on which, manner in which and address to which notice of the making of the order of adjournment and of the venue for the adjourned hearing has been sent to –

 

(1) the debtor

 

This is a potential abuse of process and whether they were there or not they HAVE to give you a certificate / affadavit of continued service...

[giveITallback]

I shall see what happens over the course of the next week or two

because at this stage i've gotten nothing other than a letter from the land registry.

 

 

I'm worried I'm not going to get my SAR, CCA or any expected certificate or affidavit

and wil be going to the court with simply my letter detailing the new date sent by the court.

 

 

It's only a few weeks away so how long should I wait before I panic?

Edited October 2, 2012 by giveITallback

[42man]

You shouldn't panic at all, you should be showing the judge just how angry and annoyed you are at what has happened, just know your stuff, know what is being said in court and make a stand.....When you go to court and Lowells solicitor (or local solicitor asked to attend) wants to 'talk' to you before the case, just state that you will listen and not comment, as he/she will attempt to get you to admit everything and it has been known for conversations in the waiting room to be carried over in the claimants favour into the court room...it is also likely that you will know more about The Consumer Credit Act and The Insolvency Act than they will....

[giveITallback]

I wonder if the other side turned up ? If they did and they haven't filed a certificate of continued service then (as it was in my own case) enough for the judge to throw it out....

 

(14.5.3)

On any adjourned hearing of a petition where a bankruptcy order is sought, in order to satisfy the court that the petitioner has complied with rule 6.29, the petitioner will be required to file evidence of the date on which, manner in which and address to which notice of the making of the order of adjournment and of the venue for the adjourned hearing has been sent to –

 

(1) the debtor, and

 

2) any creditor who has given notice under rule 6.23 but was not present at the hearing when the order for adjournment was made or was present at the hearing but the date of the adjourned hearing was not fixed at that hearing. For convenience, in the Royal Courts of Justice this certificate is incorporated in the attendance sheet for the parties to complete when they come to court and which is filed after the hearing and is as follows – “I certify that the petitioner has complied with rule 6.29 by sending notice of adjournment to the debtor [supporting/opposing creditor(s)] on [date] at [address]”.

 

At what point at court will I know whether or not they have the required certificate for each hearing? Is there a file of evidence I can view prior to each hearing or do I have to check this on the day?

[giveITallback]

I'm pretty much confused on what my next steps should be here ...... and getting very nervous!

[42man]

There will be one file with all the paperwork in it......you should get all the paperwork from that file if at all possible.

[42man]

You will need to get your petition in so it is in the court files at least 5 working days before the hearing (and you have to send copies to the opposing party too) Form 6.19 here - http://www.bis.gov.uk/insolvency/About-us/forms/england-and-wales

 

you will also need an affadavit (which needs to be either sworn in at the court or at a local solicitor (cost £5) And witness statements to say that you had never seen either the petition or stat demand - as in this thread here - http://www.consumeractiongroup.co.uk/forum/showthread.php?366321-Declared-bankrupt-in-my-absence%281-Viewing%29-nbsp

[giveITallback]

There will be one file with all the paperwork in it......you should get all the paperwork from that file if at all possible.

 

The clerk seemed to think there was no file at present as I mentioned it based on other threads I'd seen on here? When is this file supposed to be made available?

[42man]

They should be filing it as soon as possible (normally as soon as service has been effected)...you'll probably find they will send it by normal post in the next few days saying they had tried personal service without success....

[42man]

When is the hearing date ? (roughly)

[giveITallback]

With regards to the petition what exactly are my grounds for opposing the bankruptcy?

 

- Nothing ever served on me by Lowells or the court (there was a slip put through the door saying they had attempted to do this and a phone number to rearrange a time to meet but I never called anyone. It was around this time I sent off the SAR.) They have since the SAR provided a copy of the petition.

- Address found to be incorrect on file with the court.

- Requested CCA and advised they had to obtain this from the OC suggesting they've never been in receipt of this so why has it gone to this stage. It is now more than 2 weeks since they signed for my request.

- Account in dispute awaiting full disclosure with the SAR. Well over 40 days from my original request although I forgot to enclose funds. THey never responded and I resent it with funds. Still waiting for information. I have also SAR the OC and am awaiting any kind of response from them.

 

Anything else I can use?

[giveITallback]

When is the hearing date ? (roughly)

 

Less than a month

[42man]

Did you read this thread ? - http://www.consumeractiongroup.co.uk/forum/showthread.php?366321-Declared-bankrupt-in-my-absence%281-Viewing%29-nbsp

[42man]

The alleged creditor has provided no consumer credit agreement with the prescribed terms despite a legal request made under the Consumer Credit Act 1974

 

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 details of any potentially missold payment protection insurance which may have been added to the account

 

The alleged creditor has not provided any notices of assignment.

 

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 defendant also wishes to make it clear that there is no avoidance available by the claimant in his duties to provide the agreement under the Consumer Credit Act 1974 and

 

I refer to

 

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MANCHESTER DISTRICT REGISTRY

Jones vs Link Financial

 

1. In my judgment the reason for the reference to "duties" in section 189 is that an assignee only becomes the "creditor" where the statutory duties relevant to the enforcement of the creditor's rights have passed to the assignee. This will not be the case where there has been an equitable assignment of which no notice has been given. In such a case the debtor will remain legally liable to the assignor and the assignor will remain responsible for the performance of the statutory duties relating to enforcement, such as duties to provide information and notices.
   
2. Where, however, there is a legal assignment the debtor's liability will be owed to the assignee and it is the assignee who will have to perform the statutory duties relating to enforcement. This is not because he becomes under a contractual obligation to perform those duties, but rather because he cannot assert his rights under the regulated credit agreement without accepting the statutory obligation to perform duties under the 1974 Act relating to enforcement of those rights.
   
3. The legal assignee stands in the shoes of the assignor. The enforcement of the assignor's rights under the regulated credit agreement was subject to performance of the statutory duties laid down in the (Consumer Credit) 1974 Act, and the legal assignee's rights are similarly so subject.
   

The defendant notes that there has been no attempt at any personal service.

 

"to comply with section 7 of the 1985 Act they must be served on the alleged debtor in person. It cannot be left at an address or given to any other person who might be there at the time"

 

 

The defendant also notes that there are no affadavits or certificates of continuing service

 

Certificates of continuing debt and of notice of adjournment

 

14.5

 

(14.5.1)

On the hearing of a petition where a bankruptcy order is sought, in order to satisfy the court that the debt on which the petition is founded has not been paid or secured or compounded for the court will normally accept as sufficient a certificate signed by the person representing the petitioning creditor in the following form –

“I certify that I have/my firm has made enquiries of the petitioning creditor(s) within the last business day prior to the hearing/adjourned hearing and to the best of my knowledge and belief the debt on which the petition is founded is still due and owing and has not been paid or secured or compounded for save as to…

Signed……… Dated………”.

 

 

 

(14.5.2)

For convenience, in the Royal Courts of Justice this certificate is incorporated in the attendance sheet for the parties to complete when they come to court and which is filed after the hearing. A fresh certificate will be required on each adjourned hearing.

 

(14.5.3)

On any adjourned hearing of a petition where a bankruptcy order is sought, in order to satisfy the court that the petitioner has complied with rule 6.29, the petitioner will be required to file evidence of the date on which, manner in which and address to which notice of the making of the order of adjournment and of the venue for the adjourned hearing has been sent to –

 

(1) the debtor, and

 

2) any creditor................

 

The claimant notices that there are no certificates / affadavits or witness statements of any continued service in the court files. I refer to the authority of

 

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

 

In light of the above evidence the defendant requests the judge dismisses the petition and awards costs to the defendant in either on a standard basis or an indemnity basis -

 

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).

[42man]

There is also a link here as to how to lay out your costs which you will need to send too - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

[giveITallback]

Hi,

 

Yes. I'll re-read it again tomorrow when I've more time to take it in.

 

 

Although that case was for someone who has already been made bankrupt

 

 

I appreciate the similarities in the fact he was not served with any certificate.

 

 

I will allow a few more days to see if anything arrives from Lowells regarding the adjournment.

If not then I can indeed add this to my ammunition.

 

 

I dont want to drive all the way to the court as it's some drive away to be told there's no file at present.

 

 

Should I be able to confirm there is one over the phone,

would the clerk be aware of any available paperwork or would I check this file on the day?

 

 

Or the fact it's already been adjourned mean there should be paperwork that the judge will of seen at the missed hearing

or if no file does this suggest they never showed?

[giveITallback]

Do I send these to the court once i've checked for a 'file' ortake them on the day and hand them to a judge. Im not sure what to do with all this information?

 

I appreciate all the help but feel overwhelmed.

[42man]

Are you able to post up the petition (minus ALL references / personal details / dates / amounts etc) use http://www.photobucket.com if necessary (free)

[42man]

Do you understand what is being said below ?

 

 

 

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.

[giveITallback]

Do you understand what is being said below ?

 

 

 

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.

 

 

Yes I understand that this is required to chase any debt. The fact they are chasing it after they've already admitted not having it their possession by 'requesting' it from the OC is annoying!

[42man]

What I would do in your situation is read as much as I could around these forums, try my best to understand the various snippets of high court law, start forming my 6.19 and accompanying affadavit. Also your witness statement to say that you had never seen a stat demand....

 

Can you photo the petition ?