Help - Lowell Statutory Demand [LIttlewoods Cat debt & store card together] **SET ASIDE**

[nunkychunky]

Folks,

 

Just another quick question, doe the Form 6.5 have to be sworn by a solicitor? (I don't intend to instruct one).

 

Also, thinking about it, I have doubts that the SD is in the prescribed form (the front sheet does not state that it is a liquidated debt) hence another potential abuse of process (possibly?).

 

Laters,

 

NC

[citizenB]

I personally would want a receipt for the documents, so if you are able to hand them in personally at the court.

[citizenB]

Folks,

 

Just another quick question, doe the Form 6.5 have to be sworn by a solicitor? (I don't intend to instruct one).

 

Also, thinking about it, I have doubts that the SD is in the prescribed form (the front sheet does not state that it is a liquidated debt) hence another potential abuse of process (possibly?).

 

Laters,

 

NC

 

No, it did use to be that you would take them to the court and sign in front of them. I understand this isn't necessary now, as long as the statement of truth is signed. However, if you are going to the court to hand them in, you could leave the envelope open JIC !

 

You need 3 copies of ALL the documents you are submitting . One for you, one for the opposition and one for the court.

 

IMHO, it is always best to have an extra spare copy as well !

[nunkychunky]

The first part of my draft WS. More to follow later

 

1. That on (b) 20 April 2013 at around 11.55 am

the statutory demand exhibited hereto and marked “XX1” came into my hands from B W Legal (“B W” / “B W Legal”)

 

2. That I do not admit the debt, and request that the Court set aside the Statutory Demand (“SD”) based upon the following grounds:

 

2.1 The SD is not compliant with Rule 6.1 Insolvency Rules 1986 (“IR 86”). The document does not state if Section 268(1) or Section 268(2) Insolvency Act 1986 (“IA 86”) applies. (NEED TO TAKE THIS BIT OUT)

 

2.2 The SD is not founded by a judgment or order of the Court. I consider the issuance of the document is an abuse of the insolvency process simply as a debt collection tool, merely designed to intimidate me and my family.

 

2.3 The SD does not comply with Rule 6.1(4) IR 86 in that a significant part of the two debts claimed are likely to include penalties, charges, and possibly Payment Protection Insurance which are potentially unlawful.

 

The SD does not separately identify, as required by the above Rule, the above penalties, charges etc.

 

For this reason, given the fact that these additional amounts are likely to be unlawful I dispute the quantum of the sum claimed.

 

2.4 The SD includes two separate “original creditors”, one is below the prescribed limit of £750. I consider that combining two separate debts (particularly one below the prescribed limit to increase the overall total claimed) is an abuse of the insolvency process.

 

2.5 There is exhibited and shown at “XX2” a copy of an email request made to B W Legal pursuant to Section 74 of the Consumer Credit Act 1974 (“CCA 74”). This was followed up in writing, on 24 April 2013 by Recorded Delivery, which is exhibited and shown at “XX3”

 

2.6 A letter was received from B W Legal, which is exhibited and shown at “XX4” stating that whilst the s.74 CCA 74 documents are being requested, the matter is “on hold”.

 

2.7 There is exhibited and shown at “XX5” a copy of an email from me to B W Legal thanking them for their letter and advising that the matter is in dispute, and requesting confirmation within 24 hours that the SD is withdrawn, otherwise I would proceed with an application to apply to Court for the SD to be set aside.

 

2.8 I consider that 24 hours to draft a simple email in response is an adequate request, as of the date of this witness statement B W have failed to respond.

 

2.9 I consider that this is an ongoing abuse of the insolvency process, meaning that unless the SD is set aside or withdrawn by B W, effectively it is “open ended”. I consider this an abuse especially when the sum claimed in the SD is disputed.

 

2.10 The letter accompanying the Statutory Demand is dated 8 April 2013, and yet it was received on 20 April 2013. I would question as to why there was a delay of twelve days.

 

2.11 .... more to follow. This is where I will put in about CCA, "cease and desist", OFT rules on SD's as debt collection tools, ask them to prove they sent default notice etc etc.

 

Laters,

 

NC

Edited May 1, 2013 by nunkychunky

[citizenB]

[ATTACH=CONFIG]43541[/ATTACH]

[nunkychunky]

OK folks, your starter for 10.

 

 

2. GENERAL REBUTTAL

2. That I do not admit the debt, and request that the Court set asidethe Statutory Demand (“SD”) based upon the following grounds:

 

2.1. I consider the issuance of the document is an abuse of the insolvency process simply as a debt collectiontool, and is viewed by the claimant as trite law. I consider the issuance of the document is an intimidation tactic.

 

2.2 The SD does not comply with Rule 6.1(4) Insolvency Rules 1986 in that a significant part of the two debts claimed are likely to include penalties, charges, and possibly Payment Protection Insurance which are potentially unlawful.

 

The SD does not separately identify, as required by the above Rule, the above penalties, charges etc.

 

For this reason, given the fact that these additional amounts are likely to be unlawful I dispute the quantum of the sum claimed.

 

2.3 The SD includes two separate “original creditors”, one is below the prescribed limit of £750. I consider that combining two separate debts (particularly one below the prescribed limit to increase the overall total claimed) is an abuse of the insolvency process.

 

2.4 There is exhibited and shown at “XX2” a copy of an email request made to B W Legal pursuant to Section 78(1) of the Consumer Credit Act 1974 (“CCA 74”). This was followed up in writing, on 24 April 2013 by Recorded Delivery, which is exhibited and shown at “XX3”

 

2.5 A letter was received from B W Legal, which is exhibited and shown at “XX4” stating that whilst the s.78(1) CCA 74 documents are being requested, the matter is “on hold”.

 

2.6 There is exhibited and shown at “XX5” a copy of an email from me to B W Legal thanking them for their letter and advising that the matter is in dispute, and requesting confirmation within 24 hours that the SD is withdrawn, otherwise I would proceed with an application to apply to Court for the SD to be set aside.

 

2.7 I consider that 24 hours to draft a simple email in response is an adequate request, as of the date of this witness statement B W have failed to respond.

 

2.8 I consider that this is an ongoing abuse of the insolvency process, meaning that unless the SD is set aside or withdrawn by B W, effectively it is “open ended”. I consider this an abuse especially when the sum claimed in the SD is disputed.

 

2.9 The letter accompanying the Statutory Demand is dated 8 April 2013, and yet it was received on 20 April 2013. I would question as to why there was a delay of twelve days.

 

3. CONSUMER CREDIT ACT (“CCA”)

 

3.1 B W have failed to provide a copy of the agreement despite the aforementioned request pursuant to s. 78(1) CCA 1974.

 

3.2 s.78(1) CCA 1974 sets out that 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, the creditor shall give to the debtor a copy of the executed agreement (if any) and of any other documentation referred to 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

c) 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.

 

3.3 Section 78(6) CCA 1974 states that if the creditor under an agreement fails to comply with s. 78(1) he is not entitled, while the default continues, to enforce the agreement.

 

3.4 For the avoidance of doubt the Consumer Credit Act of 2006 does not change the above legislation.

 

3.5 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 (Agreement) Regulations 1983 was that the entire agreement….was unenforceable. The statutory bar on its enforcement extended to First County’s right to recover the total sum payable on redemption, which included the principal instead of interest.

 

3.6 The summary of 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 or not they could prove the debt existed – this was a House of Lords decision and should be binding in this Court.

 

3.7 The claimant has failed to provide any copies of any valid default notices as required under the Consumer Credit Act. None of these documents accompanied the SD.

 

3.8 The claimant has failed to provide any deed or notice of assignment. None of these documents accompanied the SD.

 

3.9 The claimant has failed to provide any statement for the duration of the agreement (Re Phoenix v Kotecha. I put the claimant to strict proof said documents were delivered to me.

 

4. DEFAULT NOTICE

 

4.1 Notwithstanding the above, it is drawn to the attention to the Court that no Default Notice required by s87(1) CCA 1974 has been provided.

 

4.2 I deny that any Default Notice in the prescribed format was ever received, and I put the claimant to strict proof that said document in the prescribed format was delivered to me.

 

4.3 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)

4.4 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 CCA 1974.

4.5 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 further to Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

5.UNLAWFUL PENALTIES AND CHARGES

 

 

5.1 The claimant has failed to provide any details of any potentially mis-sold insurance that may have been added to the agreement.

5.2 I aver 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. I put the claimant to strict proof that such document has been delivered to me.

5.3 The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at common law, Re: 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.

5.4 I aver that 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 accurate, Re: W F Harrison and Co Ltd v Burke [1956]

 

6. UNFAIR TRADING TERMS AND BREACH OF LEGISLATION

 

6.1 The defendant also wishes to make known the statutes in the Consumer Protection From Unfair TradingRegulations, and believe that the claimant is in breach of statute and various codes of conduct.

 

6.2 I refer to the Code of Conduct stated by the Credit Service Association which the client of B W Legal (Lowell Portfolio 1 Limited) is a member.

 

6.3 The code of conduct clearly states “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”

 

6.4 I consider that not to withdraw the Statutory Demand, hence leaving it “open ended” whilst the sum is in dispute, is an abuse of the insolvency procedure.

 

6.5 I believe that the claimant, and their client has failed to adhere to all relevant requirements under the CCA and other relevant legislation.

 

6.6 I believe that that the claimant has failed to take appropriate steps with a view to ensure that available data and information to inform the pursuit and recovery of a debt is accurate and adequate, such that the debtor and the amount of the debt can be correctly identified from that data/information.

 

6.7 I believe that I am being pursued for an amount that I dispute.

 

6.8 I believe that the claimant and their client have failed to ensure that an accurate and adequate history of the debt has been passed between parties.

 

6.9 I believe that the insolvency process has been abused by undue, excessive or otherwise inappropriate use of a statutory demand when pursuing arrears or debts.

 

6.10 I believe that the claimant has failed to conduct its business lawfully, has failed to comply with relevant legislation, judicial decisions, and to trade fairly and responsibly.

 

6.11 I believe that the claimant has failed to comply with relevant codes of practice, particularly debt collection guidance as published by the Office of Fair Trading.

 

6.12 In support of this I cite Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) which states:

 

 

“…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 Witness Statement are true.

Edited May 1, 2013 by nunkychunky

[nunkychunky]

OK folks, this is the final draft.

 

 

2. GENERAL REBUTTAL

2. That I do not admit the debt, and request that the Court

set aside

the Statutory Demand (“SD”) based upon the following grounds:

 

2.1. I consider the issuance of the document is an abuse of the insolvency process simply as a

debt collection

tool, and is viewed by the Respondent as trite law. I consider the issuance of the document is an intimidation tactic.

 

2.2 The SD does not comply with Rule 6.1(4) Insolvency Rules 1986 in that a significant part of the two debts claimed are likely to include penalties, charges, and possibly Payment Protection Insurance which are potentially unlawful.

 

The SD does not separately identify, as required by the above Rule, the above penalties, charges etc.

 

For this reason, given the fact that these additional amounts are likely to be unlawful I dispute the quantum of the sum claimed.

 

2.3 The SD includes two separate “original creditors”, one is below the prescribed limit of £750. I consider that combining two separate debts (particularly one below the prescribed limit to increase the overall total claimed) is an abuse of the insolvency process.

 

2.4 There is exhibited and shown at “XX2” a copy of an email request made to the Respondent pursuant to Section 78(1) of the Consumer Credit Act 1974 (“CCA 74”). This was followed up in writing, on 24 April 2013 by Recorded Delivery, which is exhibited and shown at “XX3”

 

2.5 A letter was received from the Respondent, which is exhibited and shown at “XX4" stating that whilst the s.78(1) CCA 74 documents are being requested, the matter is “on hold”.

 

2.6 There is exhibited and shown at “XX5” a copy of an email from me to the Respondent thanking them for their letter and advising that the matter is in dispute, and requesting confirmation within 24 hours that the SD is withdrawn, otherwise I would proceed with an application to apply to Court for the SD to be set aside.

 

2.7 I consider that 24 hours to draft a simple email in response is an adequate request, as of the date of this witness statement the Respondent has failed to respond.

 

2.8 I consider that this is an ongoing abuse of the insolvency process, meaning that unless the SD is set aside or withdrawn by the Respondent, effectively it is “open ended”. I consider this an abuse especially when the sum claimed in the SD is disputed.

 

2.9 The letter accompanying the Statutory Demand is dated 8 April 2013, and yet it was received on 20 April 2013. I would question as to why there was a delay of twelve days.

 

3. CONSUMER CREDIT ACT (“CCA”)

 

3.1 The Respondent has failed to provide a copy of the agreements despite the aforementioned request pursuant to s. 78(1) CCA 1974.

 

3.2 s.78(1) CCA 1974 sets out that 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, the creditor shall give to the debtor a copy of the executed agreement (if any) and of any other documentation referred to 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

c) 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.

 

3.3 Section 78(6) CCA 1974 states that if the creditor under an agreement fails to comply with s. 78(1) he is not entitled, while the default continues, to enforce the agreement.

 

3.4 For the avoidance of doubt the Consumer Credit Act of 2006 does not change the above legislation.

 

3.5 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 (Agreement) Regulations 1983 was that the entire agreement….was unenforceable. The statutory bar on its enforcement extended to First County’s right to recover the total sum payable on redemption, which included the principal as well as interest.

 

3.6 The summary of 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 or not they could prove the debt existed – this was a House of Lords decision and should be binding in this Court.

 

3.7 The Respondent has failed to provide any copies of any valid default notices as required under the Consumer Credit Act. None of these documents accompanied the SD. I put the Respondent to strict proof said documents were delivered to me.

 

3.8 The Respondent has failed to provide any deed or notice of assignment. None of these documents accompanied the SD. I put the Respondent to strict proof said documents were delivered to me.

 

3.9 The Respondent has failed to provide any statement for the duration of the agreement (

Re Phoenix v Kotecha)

I put the Respondent to strict proof said documents were delivered to me.

3.10 The Respondent alleges that I am indebted to it in the sum of £4,447.25 (two separate debts) being amounts outstanding under agreements regulated by the CCA 1974.

3.11 The right of the Respondent to demand immediate payment is also disputed, for the reasons as set out in this Witness Statement.

 

4. DEFAULT NOTICE

 

4.1 Notwithstanding the above, it is drawn to the attention to the Court that no Default Notice required by s87(1) CCA 1974 has been provided.

 

4.2 I deny that any Default Notice in the prescribed format was ever received, and I put the Respondent to strict proof that said document in the prescribed format was delivered to me.

 

4.3 Notwithstanding the above points, I put the Respondent 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).

4.4 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 Respondent's case cannot proceed and to do so is clearly contrary to the CCA 1974.

4.5 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 further to

Kpohraror v Woolwich Building Society [1996] 4 All ER 119

4.6 The Respondent is put to strict proof that compliant default notices were served in relation to the alleged agreements pursuant to ss. 87 and 88(1) CCA 1974 thus giving a right to demand immediate payment of the sums claimed.

 

 

 

4.7 I aver that the sums claimed are misstated due to default charges and penalties.

4.8 Furthermore, the Respondent claims that a default notice was issued on 12 July 2010, some 19 days before alleged assignment. The right of the Respondent to demand a liquidated sum immediately is called into question.

4.9 The failure to state accurately the action required to remedy any breach, including the accurate sum required, invalidates any default notice pursuant to

Santander Cards (UK) Ltd v Mayhew [2012] EW Misc CC (20 March 2012).

I rely upon the case of

Harrison v Link

in support of the proposition that a bad default notice cannot be relied upon for enforcement (Para. 75 of HHJ Chambers QC ruling refers).

 

5.UNLAWFUL PENALTIES AND CHARGES

 

 

5.1 The Respondent has failed to provide any details of any potentially mis-sold insurance that may have been added to the agreements.

5.2

I aver that the Respondent 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. I put the claimant to strict proof that such document has been delivered to me.

5.3

The amount detailed in the Respondent claim, which is likely to include penalty charges, which are unlawful at common law in

Re: 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.

5.4 I aver that

the Respondent 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 accurate,

Re: W F Harrison and Co Ltd v Burke [1956]

 

6. UNFAIR TRADING TERMS AND BREACH OF LEGISLATION

 

6.1 I wish to bring to the attention of the Court the statutes in the Consumer Protection from Unfair Trading Regulations, and believe that the claimant is in breach of statute and various codes of conduct.

 

6.2 I refer to the Code of Conduct stated by the Credit Service Association which the client of the Respondent (Lowell Portfolio 1 Limited) is a member.

 

6.3 The code of conduct clearly states “

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”

 

6.4 I consider that not to withdraw the Statutory Demand, hence leaving it “open ended” whilst the sum is in dispute, is an abuse of the insolvency procedure.

 

6.5 I believe that the Respondent, and their client has failed to adhere to all relevant requirements under the CCA and other relevant legislation.

 

6.6 I believe that that the Respondent has failed to take appropriate steps with a view to ensure that available data and information to inform the pursuit and recovery of a debt is accurate and adequate, such that the debtor and the amount of the debt can be correctly identified from that data/information.

 

6.7 I believe that I am being pursued for an amount that I dispute.

 

6.8 I believe that the Respondent and their client have failed to ensure that an accurate and adequate history of the debt has been passed between parties.

 

6.9 I believe that the insolvency process has been abused by undue, excessive or otherwise inappropriate use of a statutory demand when pursuing arrears or debts.

 

6.10 I believe that the Respondent and their client has failed to conduct its business lawfully, has failed to comply with relevant legislation, judicial decisions, and to trade fairly and responsibly.

 

6.11 I believe that the Respondent and their client has failed to comply with relevant codes of practice, particularly debt collection guidance as published by the Office of Fair Trading.

 

6.12 In support of this I cite

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

which states:

 

 

“…

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 colletion 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)”.

7. ENFORCEABILITY

7.1 It is alleged in the body of the SD that the debts were assigned on 31 July 2010 and 29 September 2010.

7.2 I accept that a debt may exist, however the enforceability of the regulated agreements are disputed. There are numerous breaches of the CCA 1974 which require proper investigation.

7.3 I consider that the bankruptcy court is an inappropriate place and the wrong forum for such investigations to take place, and that the issue of a SD is an abuse of process.

 

 

 

7.4 It is for the original creditor to reply to my s78 CCA 1974 request. If the original creditor is right then the claimant needs to bring Part 7 proceedings in the County Court as the agreement will be improperly executed for failing to adhere to s61(1)(a) and (b) CCA 1974.

7.5 I refer to the CPR Part 7 and Practice Direction 7B. I aver that this matter should be dealt with as a Part 7 claim rather than a matter progressing through the insolvency court, as unfair relationships have their own specific procedure under Rule 7 PD 7.

7.6 I respectfully request that the Court sets aside the SD and that the Respondent be ordered to pay my reasonable cost of preparing this application and attending any hearings in respect thereof.

7.7 I have not been provided with a statement showing how the sums claimed have accrued. I cannot consider what, if any, of the sums claimed are payable notwithstanding all the points set out above. Until these statements are provided, I am unable to consider any potential defence of set-off I may be able to raise.

 

I believe the facts herewith in this Witness Statement are true to the best of my knowledge and belief.

 

 

 

[citizenB]

I will leave a message for andyorch or 42man to look in for you.

[nunkychunky]

Thanks CitizenB, Andyorch, 42man

 

Due to the forthcoming Bank Holiday I am looking to get this into Court tomorrow if possible. Day 17 falls on Tuesday, Day 18 is Wednesday. I don't really want to file it on Wednesday as it might be cutting it a bit fine.

 

Thanks for all the help and advice.

 

Laters,

 

NC

[citizenB]

Far too in-depth - there is only one genuine reason in the above to set a side..the fact they have not complied with the section 77/78 request/s.

 

 

Hope this helps.

[42man]

Looks good...just try and understand exactly what is being said and why....

[nunkychunky]

Folks,

 

A sanitised version (mainly focusing on the CCA breach and a live SD kicking around on a disputed debt needs knocking on the head) has been lodged in Court today (Day 13).

 

I await the hearing date in due course.

 

Will post up a copy when I can get to the scanner.

 

When I serve B W, I shall invite them not to be silly about this, and to withdraw the SD to save on costs and Court time.

 

Laters,

 

NC

[nunkychunky]

Folks,

 

Update.

 

Letter received today from the Court advising that no hearing date has yet been allocated, but the matter will be referred to a DJ to consider whether or not there are adequate grounds to set the SD aside (I anticipate the DJ will make directions in due course).

 

Does this sound familiar?

 

Laters,

 

NC

[citizenB]

Yes, nunky, that is a pretty standard response

[nunkychunky]

Thanks for confirming that Citizen B.

 

One thing has occurred to me, thought, is that whilst the letter appears to be standard fare it does make reference to a "judgment creditor".

 

A judgment was never obtained so I think I ought, to be on the safe side, to point this out. My understanding is that a judgment (unless defended) has the effect of quantifying the debt.

 

NC

[BRIGADIER2JCS]

Thanks for confirming that Citizen B.

 

One thing has occurred to me, thought, is that whilst the letter appears to be standard fare it does make reference to a "judgment creditor".

 

A judgment was never obtained so I think I ought, to be on the safe side, to point this out. My understanding is that a judgment (unless defended) has the effect of quantifying the debt.

 

NC

It would be worth checking Trustonline to check if there is a CCJ in place.

[citizenB]

It would be worth checking Trustonline to check if there is a CCJ in place.

 

 

Didn't think of that Brig.. Yes, check Trustonline. If the Judgment has been awarded in the last 6 years, it will still be listed.

 

http://www.trustonline.org.uk/

 

I think it will cost you £4.00.

[BRIGADIER2JCS]

Didn't think of that Brig.. Yes, check Trustonline. If the Judgment has been awarded in the last 6 years, it will still be listed.

 

http://www.trustonline.org.uk/

 

I think it will cost you £4.00.

Yes £4.00.

I have become aware in the last few weeks that ''public information'' records are very slow in reaching CRA files, have asked elsewhere for an explanation but no reply so far.

[Octian]

I had an SD from Lowell last year (June). Applied but failed to set aside as I had not disputed the debt formally prior to the SD being issued. The DJ ruled the SD had been issued correctly therefore could not set aside. Still waiting the CCA response - yes 11 months later. Lots of further letters from BW Legal - threats of petitioning etc., but never had petition so far. Agreement sent was virtually completely unreadable, statement provided said I owed £0.00 !

 

Lowell/BW are real vermin - lie, and distort what you say. Never deal on the phone - always do everything in writing.

[nunkychunky]

Folks,

 

There is no CCJ in this instance as I signed up for a free trial of Credit Expert which confirms this. I have never received any Court papers whatsoever, if anything like that drops through my door it will get dealt with.

 

It's a bit odd that Lowells don't seem to go down the County Court route where they have a chance of going for a charging order once the CCJ is in place, plus it is a lot cheaper than petitioning for BKY.

 

In the event they do petition, they are throwing money down the plughole, and they can expect me to defend it anyway.

 

NC

[BRIGADIER2JCS]

Lowell are using SDs as debt collection tool to intimidate, forcing debtors to apply for set aside and agree to ''payment plans'' to prevent a BR petition.

Underhand and an abuse of the BR process.

[citizenB]

Folks,

 

There is no CCJ in this instance as I signed up for a free trial of Credit Expert which confirms this. I have never received any Court papers whatsoever, if anything like that drops through my door it will get dealt with.

 

It's a bit odd that Lowells don't seem to go down the County Court route where they have a chance of going for a charging order once the CCJ is in place, plus it is a lot cheaper than petitioning for BKY.

 

In the event they do petition, they are throwing money down the plughole, and they can expect me to defend it anyway.

 

NC

 

As Brig has said, they are indeed still using the stat demands as Debt collection tools. Once a set aside application has been submitted, they are almost certain to attempt to come to some kind of compromise. I wish there was a way of discovering

 

how many stat demands have been issued,

how many have had set asides submitted

how many have been set aside

how many, where a set aside has not been given, have Lowells issued a BR petition on ?

[BRIGADIER2JCS]

Hi CB, the problem with SDs and quantifying them is that an SD is not a court document, many are issued by creditors/debt purchasers/DCAs and the only ones recorded are those where an SA application is made to a court and those that proceed to petition, the figures for personal bankruptcies each year are a matter of public record.

What we cannot know is how many are issued and no action of any kind it taken, a large number I think.

[nunkychunky]

Folks,

 

My undrstanding is that once 18/21 days expires without an application to set aside, the SD remains a live document, and I cannot do with the fact that given the underhanded tactics Lowells seem to employ, it gives them carte blanche freedom to do what they want if the SD is still live.

 

The CCA request still remains unanswered, and if (assuming the set aside fails) they choose to petition for BKY in 6/12 months time that surely too is an abuse of process, depends on what judge you get on the day and how familiar he/she is with insolvency.

 

NC

[Octian]

Yes you're right - without being set aside the SD remains valid. If the CCA request is not answered, the debt is un-enforceable. When did you dispute the debt ?