Bankruptcy as a debt collection device

[hayvender]

Is using bankruptcy as a device for debt collection grounds for anulment of a bankruptcy order. I was made bankrupt in my absence & as yet have not been given the opportunity to examine the court case papers.

I did not recieve ANY papers concerning the case, but susequent papers recieved , concerning another related case indicate that at the time I was made bankrupt I was solvent, & had I recieved the SD the I would have been in a position to pay the demand, & at the time of the bankruptcy the lawyers representing the claimant,(debt was council tax) knew I had assets far in excess of their claimed amount ,an amount I was unable to verify, as I was unaware of the action against me.

[unclebulgaria67]

Don't think there are any rules that would stop bankruptcy being used. Just because you were solvent at the time, does not make any different.

 

Anyway, as you did not receive the SD or bankruptcy petition, you can make applications to the court to remove the bankruptcy.

 

Here is a thread where someone is going through the process.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?376589-Lowell-made-me-bankrupt-without-my-knowledge!!!

[hayvender]

Thanks unclebulgaria, looks like a very similar case in many respects although my case is with the local council & the documents from the related case I mention above also indicate certain documents I was served by substituted service, again I never recieved them.

The substituted service service was supported by a witness statement/statement of truth......is that acceptable or must there be an affidavit ?.

Also is first class post sufficient to serve an SD/Petition, or must it be registered, & if it is OK must it be substantiated with a certificate of posting ?, I vaguely remember reading a thread on CAG to the effect that substituted service must be by registered post (1925 property act), and if not complied with TO THE LETTER, then can be challenged under Boggis QC-RE AWAN judgement as not complying with "perfection of service" principles, is this correct ?.

There is a document recieved after the bankruptcy that suggests the SD was given to my former wife at another address, which she never recieved & so could not pass on to me. Is this legal to serve an SD to a third party, not withstanding the fact that it was never handed over in the first place.

[unclebulgaria67]

SD can be sent by normal post, does not need to be hand served. They can't give the SD to a third party. It should go to the last address they held for you, but not ever hand served to a third party.

 

With a BP, they need to arrange an appointment to hand serve this and only after a number of times of not being able to do this, can they effect substituted service, for which they have to give the court a statement. http://www.justice.gov.uk/courts/procedure-rules/civil/rules/insolvency_pd

(13.3.4)

In most cases, evidence of the following steps will suffice to justify acceptance for presentation of a petition where the statutory demand has been served by substituted service (or to justify making an order for substituted service of a petition) –

(1) One personal call at the residence and place of business of the debtor where both are known or at either of such places as is known. Where it is known that the debtor has more than one residential or business address, personal calls should be made at all the addresses.

 

(2) Should the creditor fail to effect personal service, a first class prepaid letter should be written to the debtor referring to the call(s), the purpose of the same and the failure to meet the debtor, adding that a further call will be made for the same purpose on the [day] of [month] 20[ ] at [ ] hours at [place]. At least two business days' notice should be given of the appointment and copies of the letter sent to all known addresses of the debtor. The appointment letter should also state that:

(a) in the event of the time and place not being convenient, the debtor should propose some other time and place reasonably convenient for the purpose;

 

(b) (In the case of a statutory demand) if the debtor fails to keep the appointment the creditor proposes to serve the debtor by [advertisement] [insertion through a letter box] or as the case may be, and that, in the event of a bankruptcy petition being presented, the court will be asked to treat such service as service of the demand on the debtor;

 

© (In the case of a petition) if the debtor fails to keep the appointment, application will be made to the Court for an order for substituted service either by advertisement, or in such other manner as the court may think fit.

 

 

(3) When attending any appointment made by letter, inquiry should be made as to whether the debtor has received all letters left for him. If the debtor is away, inquiry should also be made as to whether or not letters are being forwarded to an address within the jurisdiction (England and Wales) or elsewhere.

 

(4) If the debtor is represented by a solicitor, an attempt should be made to arrange an appointment for personal service through such solicitor. The Insolvency Rules enable a solicitor to accept service of a statutory demand on behalf of his client but there is no similar provision in respect of service of a bankruptcy petition.

 

(5) The certificate of service of a statutory demand filed pursuant to rule 6.11 should deal with all the above matters including all relevant facts as to the debtor's whereabouts and whether the appointment letter(s) have been returned. It should also set out the reasons for the belief that the debtor resides at the relevant address or works at the relevant place of business and whether, so far as is known, the debtor is represented by a solicitor.

[hayvender]

Thanks again unclebulgaria67

[42man]

Were there any adjourned hearings at all ? If they have asked for substituted service then they have to show on the petition affadavit / witness statmenet how they had attempted but failed to serve anything on you personally....

[hayvender]

Will check on adjourned hearings etc. when I finally get to see court documents later this week, & will advise ASAP.

Have seen the petition & it confirms service of statutory demand handed to ex wife at her current address (not same as mine), she acknowledges meeting the server ( 3rd party service), but was not handed any papers

Thanks to everyone for their help, its a stressful situation but at least now I have a game plan.

[42man]

Let us know what documents are there and if there were any adjournments....be careful about posting up anything that might identify you.

[hayvender]

I have just been to court to seek an anullment for my bankruptcy on the grounds that the statutory demand was not served.It was claimed it was given to my ex wife at her home (different address),to give to me when I visited which it was not, & supported by a statement of service which was nonsense, & stated that the statement of demand was delivered to me personally.

The anullment was rejected on the grounds that the bankrutcy petition was served according to the rules (substituted service), it was posted through the letter box of my house where I had not been living for some time & was considered served.

I cited Boggis QC re Awan but the judge rejected it, as not relevant.

What can I do now I was not served a Statutory Demand, & the claimed form of service was via a third party,(which did not happen), which I understood to be unsatisfactory, the judge however is of the opinion that, as the petition for bankruptcy was served in accordance with the rules for substituted service, then the lack of service of the statutory demand is of no importance & does not warrant anullment.

What can I do about it.

[unclebulgaria67]

Sounds like you had a Judge who was not going to listen to what you had to say and just accepted what the other side had to say.

 

In view of the gravity of this, I think you are going to have to see a Solicitor who deals with bankruptcy, so you are not given the run around.

[hayvender]

Where do I find one, the only ones I've spoken to only seem interested in paying the other side, and charging me an arm & a leg to swap papers on my behalf. Any & all suggestions welcome I just need to speak to someone who is at least interested in reading the court papers.

[hayvender]

Is an application in the High Court the way forward ?This latest judgement was in county court ?

Edited April 19, 2013 by hayvender

[42man]

The next stage would be an appeal at the High Court, and this isn't something I would take on on my own....if you can locate a specialist solicitor who handles bankruptcies/insolvency then this may be a ray of hope....judges can vary wildly, and it seems you didn't get one who was a little more helpful towards your case. Judges like hard proof, and despite what you said about service (did your wife write a witness statement stating that she had never been given anything ?)

[hayvender]

The next stage would be an appeal at the High Court, and this isn't something I would take on on my own....if you can locate a specialist solicitor who handles bankruptcies/insolvency then this may be a ray of hope....judges can vary wildly, and it seems you didn't get one who was a little more helpful towards your case. Judges like hard proof, and despite what you said about service (did your wife write a witness statement stating that she had never been given anything ?)

Thanks 42man sorry for the delay, & yes I would like to take this to the High Court, at the moment I am struggling to find an expert solicitor at ALL so anyone reading this who has found a solicitor who is willing to fight a bankruptcy rather than charge me a fortune for what is little more than a paper swapping exercise with the opponents, please mail me their contact details & I'll give them a call.

Yes, my former wife did make a statement of truth detailing the fact that she met the server (who was pretending to be from the council), & he most DEFFINITELY did NOT give her any documents at all. Unfortunately we thought the statement would be enough, as the servers statement was nonsense, he claimed to have personally served me in his statement confirming service (despite having admitted he'd never met me before that day), by handing the documents (non existent ) to my ex wife. this was not the case, the statement was dismissed, as she was not present at the hearing.

[unclebulgaria67]

See whether you qualify for legal aid, as I don't think this is going to be cheap.

 

https://claonlineadvice.justice.gov.uk/