BW Legal notice - Stat Demand received - 2 Credit accounts merged ** SET a SIDE + COSTS **

[citizenB]

At this point in time, you don't actually need to attach anything - they will be requested and required... IF.. it proceeds to a hearing and you will provide these with your Witness statement.

 

However, if you would prefer to supply this stuff now, you simply put (see attachment XYZ) at the point you refer.

 

I will ask andyorch if he knows of anything, I think it might have been something drafted by him that you have seen regarding charges/PPI etc

[Andyorch]

Be careful you dont turn the affidavit into a defence...no attachments required and a brief synopsis of the disputed debt....you dont need legal speak..... own words as I have advised in your other thread.

 

Regards

 

Andy

[superstarjan]

thanks guys! I will put it all the attachments in now and just write on them.

 

Here is my completed witness statement, I'm just about to leave now, just need to organise the kids, it closes at 2pm:-

 

1) Do not admit the debt is recoverable because the enforceability of the alleged debt is in dispute, the creditor’s right to demand immediate payment is also disputed at this juncture:

 

The Respondent alleges that I am indebted to it in the sum of £xxxxxx being the amount outstanding under a financial agreement. It is further alleged that the debt was assigned to the respondent from a HBOS agreement to Lowell Portfolio. I submit that the statutory demand should be set-aside upon the following grounds: -

 

2) It is believe that the Respondent’s use of a statutory demand is trite law and merely a scare tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of process. I believe the Respondent will not turn up to court to defend this demand and it is the defendants contention that use of the insolvency laws as a debt collection tool is an abuse of the insolvency Rules. The Respondent's letter accompanying the statutory demand included an invitation to make an offer. (Part of attachment "A")

 

3) The Respondent has failed to provide a copy of the consumer credit agreement that contains the prescribed terms. Under section 78 (1) of the Consumer Credit Act. On 07.01.09, the Applicant made a request pursuant s78 (1) Consumer Credit Act 1974. The request was in writing and accompanied by the statutory one pound fee. Two separate requests were sent recorded delivery and they were delivered on 12.01.09. A further request, together with the one pound fee has been sent to Lowell Portfolio on 11.10.13, but they have also failed to provide a copy of the consumer credit agreement. The Applicant had to follow up this request with a letter, 14 days later informing them that the account has entered default. (See attachment "B)

 

4) The Applicant refers the Court to s78 (6) Consumer Credit Act 1974 which precludes the Respondent from proceeding with bankruptcy while it remains in breach. In the event that the Respondent seeks to avoid its obligations by suggesting that as an assignee it has no duty to comply with s78, then the Respondent is referred to Jones v Link Financial Ltd [2012] EWHC 2402 (QB) (22 August 2012) which affirmed that the duty to comply with s78 transfers to the Respondent on assignment.

 

5) The Applicant refers the court to the judgment of Mr Justice Warren in the High Court in the case of Hammonds (a firm) v Pro-fit USA Ltd [2007] EWHC 1998 (Ch) at Para 27.

 

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)."

 

In respect of judgment of Mr Justice Warren as set out above the applicant avers that there is a clear dispute in relation to this debt and furthermore the Respondent is aware of this.

6) The alleged creditor has provided no statements as to how the sum of £14,451.00 was reached it not being uncommon for debts to be made up entirely of excessive penalty charges.

7) There has been a failure to provide any Default notice in the prescribed form. It is denied that any Default notice in the prescribed format was ever received and the Applicant puts the Respondent to strict proof that said document in the prescribed format was delivered to the Applicant. Service of a default notice is a statutory requirement as laid out in sections 87, 88 and 89 of the 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 the Respondents case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974. The agreements have also been terminated.

 

8) Notwithstanding the above, the Respondent has failed to serve a Notice of Assignment in accordance with section 136(1) of the Law of Property Act 1925 which requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor. Section 196(4) of the Law of Property Act 1925 prescribes the requirements for giving sufficient notice by post:-

 

s196. Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

It is noted that by Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded or special delivery).

 

9) For the assignment of a debt to be effective and so giving the Respondent a right of action, a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to S196(4) before court action is commenced. It is denied that any Notice of Assignment was served on me and so the Respondent has no right of action. It is noted that the Respondent has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served.

 

10) In view of the matters pleaded above and that not all reasonable steps were taken by the Respondent before taking this action, the Applicant avers that the service of the Statutory Demand is demonstrably intimidatory and an abuse of process.

 

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

 

`In my judgement, 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`

 

11) The Applicant has not been provided with a statement of account showing how the sums said to be payable have accrued. The Applicant cannot even begin to consider what if any of the sums stated in the demand are payable, notwithstanding the points set out above, until the Respondent provides the aforesaid statements the Applicant is unable to consider any potential defence of set off that the Applicant may be able to raise.

 

12) It is clear that there are several triable issues and that these matters should be properly dealt with as a part 7 claim rather than the matter progressing via the Insolvency courts. The Applicant respectfully requests that the demand be set aside and the Respondent be ordered to pay the Applicants reasonable cost of preparing this application and of attending any hearings in respect thereof.

 

Accordingly, the Applicant respectfully requests that the Statutory Demand be set aside and that the court award costs in this matter to the Applicant who is acting as a Litigant in Person. It is also requested that the court consider making an indemnity award in light of the upset and inconvenience that this has caused the Applicant.

[citizenB]

I would have thought you could have added your point 6 to point 11. Having said that, it looks ok to me.

[superstarjan]

thanks for all your help!

[Andyorch]

Intro para 1 needs re phrasing

[superstarjan]

oh really, can you tell me to what, I will need to re-print it all quickly

[Andyorch]

1) I xxxxxxxxx (Applicant) hereby requests that the Statuary Demand dated xxxxx be set a side ...the debt in question is in dispute and disputed for the following reasons :-

 

The Respondent alleges that I am indebted to it in the sum of £xxxxxx being the amount outstanding under a financial agreement. It is alleged that the debt was assigned to the respondent from a HBOS agreement to Lowell Portfolio. (Respondent)

[superstarjan]

I will do that now, thanks andyorch!

 

Ihave also taken out para 6 and added it to 11 (which is now 10) here it is:-

 

10) The Applicant has not been provided with a statement of account showing how the sums said to be payable have accrued. The Applicant cannot even begin to consider what if any of the sums stated in the demand are payable, notwithstanding the points set out above, until the Respondent provides the aforesaid statements the Applicant is unable to consider any potential defence of set off that the Applicant may be able to raise. Furthermore, the Applicant has no reference as to how the sum of £xxxxxx was reached it not being uncommon for debts to be made up entirely of excessive penalty charges and PPI.

[Andyorch]

[superstarjan]

I'm back!!!

 

I couldn't swear it in because they have wrote the wrong court on the stat demand, that court is actually the nearest to me, but is not in my jurisdiction.

 

The other court has closed now, so I need to get there first thing, can someone else please check over my dates, I got the stat demand on 15th oct. I got it that the last day is today

[citizenB]

Ah.. I think that might cause them some problems. I will try and find andyorch for you.

[citizenB]

Stan, andy isn't online at the moment, but I am sure he will be back later on today and will be able to advise further.

[superstarjan]

Thank you again! can you just check my arithmetic, the lady at the 'wrong' court thinks I have another 3 days, but I've got today as being 18 calender days. i received the stat demand on 15th

[citizenB]

Whilst you have 18 days to set aside the demand - they cannot present a petition until after 21 days, so yes.. if you can get it there tomorrow.. then you should be ok

 

 

18 days from the 15th October, I make 2nd November

[The Mould]

Whilst you have 18 days to set aside the demand - they cannot present a petition until after 21 days, so yes.. if you can get it there tomorrow.. then you should be ok

 

 

18 days from the 15th October, I make 2nd November

 

Correct CB my dear fellow, however the 2 November is a Saturday, in this regard, I would advise the op to file her/his response to this Statutory Demand on the morrow - Friday 1 November 2013 at the appropriate Courthouse. A County Court that deals with these type of proceedings.

 

Further, good stuff and Godzilla to all who have come before me to help the op on this matter, excellent work from the Site Team.

 

 

 

Kind regards

 

The Mould

[citizenB]

Oops, thanks The Mould. Absolutely, file tomorrow as the court will not be open on Saturday !.

[superstarjan]

Should I add something else to the witness statement about them sending me to wrong court?

[superstarjan]

andyorch oh andyorch, where for art thou andyorch?

 

I need to get going to the correct court very soon, I've wrote this and I am going to put it just above the Judge Boggis bit, hope someone can tell me if it's ok:-

 

The Applicant avers that the statutory demand does NOT contain the correct nominated court, leading to the Applicant almost not being able to file the application for set aside within the 18 days. Thereby the Applicant believes that the Respondent is acting unlawfully and is issuing a frivolous demand, the Applicant believes this to be an abuse of the Insolvency Rules.

[citizenB]

I think you can pop that in a witness statement, stan.. which this is not.

 

So go ahead and file

[superstarjan]

oh right, thanks! no idea why I thought it was a witness statement, must've read it on another thread. So is it ok to go on the form 6.5?

[citizenB]

Yes... but you should have already been to the court by now

[superstarjan]

Yes all done now just need to make a start on the costs

[citizenB]

Excellent

 

You cost your time at £18.00 LiP rate.

[CAGareBrilliant]

Hi, thanks for posting this.

 

Is it basically correct that you can only challenge a Statutory Demand if there is a fault in the process the DCA have used, or a valid dispute over the size of the debt? Or do those cases where bankruptcy has been deprecated by various judges as a standard debt collection tool suffice to get the demand set aside?

 

thanks for any advice!