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

[giveITallback]

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

 

I'll look at doing this tomorrow. I've got to go out now. Thanks again. You're making this that little bit more bearable.

[42man]

What that is saying is that it is a government statute that means they can't enforce whilst in default of your request (and remember it has to be enforceable with the prescribed terms), you also have accompanying case law too. not only that but without any statements you can't even check if the % is correct in comparison with the agreement in line with another high court case (Kotecha vs Phoenix)

[giveITallback]

Copy of Petition.

 

[ATTACH]38610[/ATTACH]

 

Since the SAR Hamptons have sent a copy of the petition and details of when it was supposedly served over 5 months ago. There is also a letter about alternative service detailng when the papers were supposed to of been served in person and left in letterbox. There is a copy of an alternative service also. However....

 

What puzzles me is they have visited much more recently leaving a calling card and also sent a further letter saying they have recently attempted to serve me with a petition for bankruptcy. Why would they do this twice if they've supposedly done it months back and now provided me with copy docs? That doesn't add up. It seems funny they've sent these copy docs I've never seen and also stated they've attempted to serve me 6 months later again? Have they messed up here?

 

It's gone well passed the time limit for a set aside then.

[42man]

You have attached a copy of the stat demand ? did you meant to attach the bankruptcy petition ?

[giveITallback]

Hi,

 

That's all I have I'm afraid. I also have a statement of service. I don't have anything that's got petition on it. Confused. I have a B10 from the land registry that says the property appears to be affected by a petition 2 months ago.

[giveITallback]

That obviously explains the confusion between the stat demand 5 months ago and the petition more recently. Apologies for the confusion. Still not had any court papers, letters or any petition though. As the Stat Demand is 5 or 6 months old can it be set aside?

[42man]

so they sent you a copy of the statutory demand but not the bankruptcy petition ? I presume the upcoming hearing will be for the petition.....

[42man]

If it was me in your position then I would be doing would be applying to set aside the demand )making sure that you state in your witness statement that you had not seen the demand until you requested it) at the same time as applying to oppose the petition...

[giveITallback]

Just spoke to the court who have now checked the file and a copy of the petition is in there.

 

 

They have resent it to me in light of them realising Lowells had an incorrect address.

 

 

I thought this had to be served by the DCA and had to include the notice of default.

 

 

The clerk also said there's nothing to set aside at the time as it has not at this stage been entered against me?

[42man]

As Lowells have got your address wrong, then you should be going all guns for this....make sure you keep a record of these phone calls and what was said. Have you spoken to a solicitor, I am sure there are some out there who would go to town on this....

[giveITallback]

Right I'm getting there now.

 

 

The court has resent the order, not the petition.

 

 

The petition has not been served to me by anyone as yet and was not sent with the documents that appeared

from Hamptons legal recently despite a copy of the Stat demand being included.

 

 

Apologies for all the confusion.

 

 

I'll read through the threads you suggested a few times an start to print out and fill in forms that I need to give to the Courts.

 

 

I'll bullet point everything so far and what action I have taken and then you can suggest anything to include/exclude.

 

 

Thanks for your patience. Juggling this around work is difficult.

[giveITallback]

If you could check through the below and answer everything I'd be grateful...

 

- Received B10 from from Land Registry about a notice of Bankruptcy being filed to court

 

- Telephoned court to find out details of creditor

 

- Sent SAR to DCA and OC also informed DCA nothing has been received from them

in relation to the bankruptcy other than a B10 form from Land registry

 

- Sent CCA request to DCA

 

- Received letter from Hamptons advising SAR has been received

 

- Received letter from Hamptons advising CCA has been requested from OC

 

- Received letter advising someone was trying to serve a petition and to call a number to arrange, I did not

 

- Telephoned court and informed by them that my address is incomplete,

hence not received Stat Demand, Petition or Original court hearing,

advised adjournment/order sent last week but will be to old address, resent this week.

They could not advise on the reasons for adjournment??

 

- Claimant has not sent affadavit for the new date as yet,

did they need to send one for the original hearing also as well as the court

(received nothing as advised)? Is this related to post #74

Do I print this out and hand into court with form 6.19

 

- Advised that I can't set aside as nothing has been entered against me as yet

 

- I have no default notice from the DCA (or does this come from the OC) and no LOA

 

- Having checked through old bank statements I can see unfair charges and interest are

more than one of the alleged debts they are chasing

 

- I've never made a payment to Hamptons/lowell/lewis/red in the last 6 years.

Does it matter if I'd paid a different DCA prior to them buying the debt, don't think I did.

 

- Several searches done with CRA in a 12 month period twice in a day on at least one occasion

 

- Hearing due this month

Edited October 3, 2012 by giveITallback

[42man]

This is what I would do if I was in your shoes

 

Apply to set aside the stat demand which you now have sight of, forms 6.4 and 6.5

When you have the petition you should apply to dismiss this on 6.19 with an accompanying affadavit

 

Both the 6.4 and the 6.5 should be in to the court at least 7 days before the hearing, along with your costs, take the originals in to court along with your 6.4, 6.5 (for the stat demand) and the 6.19 with an affadavit for the petition) along with any accompanying documents (such as a CCA request which you should make reference to in both your defences.

 

- Telephoned court and informed bt them that my address is incomplete, hence not received Stat Demand, Petition or Original court hearing, advised adjournment/order sent last week but will be to old address, resent this week. They could not advise on the reasons for adjournment?? - irrelevant and whatever the reason you should still be served with a certificate / affadavit of continued service if there has been an adjournment - this will make up part of your petition defence.

- Claimant has not sent affadavit for the new date as yet, did they need to send one for the original hearing also as well as the court (received nothing as advised)? Is this related to post #74 Do I print this out and hand into court with form 6.19 as above YES

- Advised that I can't set aside as nothing has been entered against me as yet - You have a copy of the demand which you can set aside at the same time as your petition as soon as it comes through.

- I have no default notice from the DCA (or does this come from the OC) and no LOA - You should mention this in your defence, a judge can consider it as well as order production of it if things aren't going your way.

- Having checked through old bank statements I can see unfair charges and interest are more than one of the alleged debts they are chasing - You can mention this as part of your dispute

- I've never made a payment to Hamptons/lowell/lewis/red in the last 6 years. Does it matter if I'd paid a different DCA prior to them buying the debt, don't think I did.- BRILLIANT this is reason alone to dismiss the petition and the stat demand....

- Several searches down in a 12 month period twice in a day on at least one occasion - The judge can't look at this issue, this has been mentioned in other set asides and the judge has said that he doesn't have the authority to do this (unless you get a really decent judge) The judge on winning will request the removal of the B10 notice too, it is worth asking this in your defence

[42man]

This is useful for filling out the 6.4

 

How to fill in Form 6.4

 

For (a) fill in your name and address

 

The section that states attend before the Registrar leave blank. This will get filled in by the court.

 

For (b)

on the hearing of an application by (b) (insert your name)

 

An application for an order that the statutory demand dated (insert date on the SD that you received from Connaught) be set aside

 

For ©

The grounds on which the applicant claims to be entitled to the order are set out in the affidavit of the applicant sworn on (insert the date that you hand the forms into the court).

 

For (d)

The names and addresses of the persons upon whom this application should be served are:

(d) (insert name and address of Connaught)

 

For (e)

The applicant’s address for service is: (e) (insert your name and address)

Cross out where it states (Solicitor for the) and just leave the word Applicant and sign and date the form.

[42man]

For form 6.5 then this is what I would use

 

The defendant is applying to set aside the demand 'out of time' due to the defendant only becoming aware of the demand on receipt of a B10 bankruptcy document. The defendant had up until (date) no notice of any service of a demand. The defendant also wishes to make the court aware that on 2 occasions (date/dates) the court admitted that they had the incorrect address.

 

The defendant disputes the debt

 

The Claimant contends that the Claimant claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the Claimant contends that the Defendant is in breach of the alleged contract, in excess of years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act 1974 (attachment 1 (will be your CCA request also attach the recorded delivery slip (or a copy))

 

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

 

The claimant has failed to provide any copies of any valid default notices as required under the Consumer Credit Act.

 

The claimant has failed to provide any deeds or notices of assignment.

 

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
  

For the avoidance of doubt the 'creditor' whether under assignment or not is not afforded any relief from complying with the Consumer Credit Act 1974 as per Jones vs Link Financial -[2012] EWHC 2402 (QB)

 

Case No: U20120398

 

 

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 1974 Act, and the legal assignee's rights are similarly so subject.
   

The claimant has failed to provide any statements for the duration of the agreement including any excessive charges

 

The claimant has failed to provide any details of any potentially missold insurance that may have been added to the agreement.

 

The defendant avers that some debts are made up entirely of charges and / or potentially missold personal protection insurance.

 

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 also wishes to make known the statutes in the Consumer Protection From Unfair Trading Regualtions 2008, and believes that the alleged creditor is in breach of statute

 

Offences relating to unfair commercial practices. A trader is guilty of an offence if he engages in a commercial practice which is a misleading action under regulation 5 otherwise than by reason of the commercial practice satisfying the condition in regulation 5(3)(b).

 

Which clearly state...

 

Misleading actions

 

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(3) A commercial practice satisfies the conditions of this paragraph if—

(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

(i)the trader indicates in a commercial practice that he is bound by that code of conduct,

 

Interpretation2.—(1) In these Regulations—“average consumer” shall be construed in accordance with paragraphs (2) to (6);“business” includes a trade, craft or profession;“code of conduct” means an agreement or set of rules (which is not imposed by legal or administrative requirements), which defines the behaviour of traders who undertake to be bound by it in relation to one or more commercial practices or business sectors;“code owner” means a trader or a body responsible for—(a)the formulation and revision of a code of conduct; or(b)monitoring compliance with the code by those who have undertaken to be bound by it;

 

“trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trade

 

The defendant refers to the code of conduct stated by the Credit Service Association of which Lowells are a member -

 

The code of conduct clearly states

 

q) Where a debt or the sum owed is disputed, as

soon as is practicable, supply information to the

debtor in support of the claim. Where no

information has been supplied by the creditor,

obtain the required support, or failing that cease

collection action.

b) Adhere to all relevant requirements under the

Consumer Credit Act and any other

relevant legislation.

 

Comply with debt collection Guidance as

Published by the Office of Fair Trading

 

a) Conduct its business lawfully, comply with

all relevant UK legislation, regulation

and judicial decisions and trade fairly and

responsibly.

c)

Comply with this Code of Practice and

follow any guidance notes issued by the

Board of the Association

.

 

In light of the above evidence, the defendant gracefully requests the Judge orders the demand set aside and in light of the above pay my full costs + compensation (either in the standard or in the indemnity) in light of the distress and upset this has caused myself and my family 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 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). 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.

 

Signed

 

Dated

[giveITallback]

Thank you so so much for your continued enthusiasm to help folk out such as myself. I have read through your 'won twice' case from 2007 all last night and must say I thoroughly enjoyed watching you grow in strength and confidence as time went by. I hope I can draw on your strength and resolve to take the fight to these idiotic cowboys who continue to flout the rules in this shark infested industry.

 

Sorry to be a pain but when someone says you need forms 6.4 5.6 of x.x how do you locate these on here, just so I don't always have to ask. Also you said once I have the petition then complete 6.19. What If I have still not seen this and the deadline for filing all my docs with the court approaches (7 days before hearing). Do I complete it any way with a mirrroring affadavit?

[42man]

Don't worry you can find the forms here - http://www.bis.gov.uk/insolvency/About-us/forms/england-and-wales

 

And in answer to your questions then YES....if it gets to 9/10 days before the hearing then you apply to oppose the petition. I have to say that providing you know your stuff (what is being said) and you fight your conrer you should be fine...

[42man]

I haven't added the piece of continued service (apologies)

[42man]

I'm just adding this as this piece will be for the petition (6.19)

 

The defendant notes that there has been one adjournment. The defendant avers that there has been no certificate nor affadavit of continuing debt from the petitioner.

Certificates of continuing debt and of notice of adjournment

 

(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]”.

 

 

A fresh certificate will be required on each adjourned hearing.

 

In support of this I quote

Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly."

[42man]

Extension of hearing date of petition

 

14.6

 

 

(2) If the petition has not been served and no extension has been granted by the time fixed for the hearing of the petition, and if no one attends for the hearing, the petition may be dismissed or re-listed for hearing about 21 days later. The court will notify the petitioning creditor's solicitors (or the petitioning creditor in person), and any known supporting or opposing creditors or their solicitors, of the new date and times. Written evidence should then be filed on behalf of the petitioning creditor explaining fully the reasons for the failure to apply for an extension or to appear at the hearing, and (if appropriate) giving reasons why the petition should not be dismissed

[42man]

This is also a key point - Written evidence should then be filed on behalf of the petitioning creditor explaining fully the reasons for the failure to apply for an extension or to appear at the hearing, and (if appropriate) giving reasons why the petition should not be dismissed

[giveITallback]

What happens if certain documents turn up either in the next few days or last minute within a few days of the hearing, some of the above would no doubt have to be omitted. I'm also worried that I might not be able to follow and keep up with the judge. Am i right in assuming he will have copies off all the above prior to the hearing and will have read it before the hearing and noted my key points. Anything he has not read that he contests will be then down to myself to refer him to page no. Article. point no etc.

[giveITallback]

Also if someone is attempting bankruptcy shouldn't they have all the documents on hand such as a valid CCA, Notice of Asignment, default notice etc. Otherwise how can they attempt to make someone bankrupt if these documents are not in their posession? They are already passed the 10 days since they signed for the CCA request and have plenty of time to produce the SAR considering I don't have any record of payments to them?

[42man]

If that does happen and you don't have time.....then you can always ask for an adjournment (due to their tardy submission/s) and press the importance of an 'unless' order (i.e unless they produce statements, compliant default notice, agreement with the prescribed terms, deed and notice of assignment, proof that the debt isn't statute barred....however the case is riddled with holes which they are unlikely to fill, the damming and I think overriding fact is that the debt is statute barred....

 

You'll need to speak a little louder than normal, not interrupt the judge and show him/her just how angry, upset and annoyed you are (not at the judge of course) at their attempt to destroy you without providing any supporting documents (their lack of disregard for CPUTR2008), their non production of certificates, wrong addresses etc....by the time it gets to court, you will probably know more than the local solicitor they send (if they do) and they will probably claim that they have only had the case in their possession since the night before (it has happened on quite a few occasions). The solicitor may even want to have a 'chat' with you before the hearing, but you should only listen and not interact, you are in a position of strength and has often been shown here once you know your stuff and take an attacking stance it usually is the best form of defence....

[42man]

Don't forget to write a separate witness statement stating that you have not been 'served' with any documents

 

WITNESS statement of MR (name)

_________________________________________________________

 

I, Mr (name) of ………(address)……………………………… will say as follows:-

I confirm to the best of my knowledge and memory that I not been issued with any demand of any while I have been living at this address. The first time I became aware of this petition was. (date)

 

I believe that the facts stated in this witness statement are true.

 

SIGNED ………………………………………..

 

MR (name)

 

 

Dated ………………………………………..