Getting Statutory Demand Set Aside**WON IN COURT**

[tomterm8]

Originally Posted by user56565

Hi Guys.

Thanks for the replies. Majorclanger100 - your post gives some hope that this may all work out okay!!

An update.

We received a document from the court today. The district judge did not dismiss our application (good news!) and has provided us with a hearing date - all the way in September.

The judge has ordered that:

(1) The parties are to file and serve at least 5 working days before the directions hearing:
(a) Draft proposed directions, agreed if possible
(b) Summary in not more than 250 words of the party's position with particular reference to the time estimate for final hearing

So.......

I assume this means that we have to propose a solution to all this (and try to agree this proposal with the creditor) and summarise it??

I am currently trying to gather more information about this process from the net and other sources, but if anyone could provide some guidance around this or any thoughts, it would be much appreciated!

PS we still haven't received the CCA (we are concerned that it could turn up as the agreement started very recently ie around 2003/2004)

Easy one first (had to cut it down to get it under 250 words):

b)
I apply for the statutory demand to be set aside as the creditor is aware the debt is in dispute, the creditor has failed to comply with its obligations under the Consumer Credit Act, and I believe that the creditor issued this statutory demand as an abuse of process intended to pressure me into paying the full amount of a disputed debt contrary to the OFT Debt Collection Guidelines.

The creditor has defaulted under section 78 of the Consumer Credit Act 1974 for failing to provide a copy of the alleged agreement on request within the prescribed period. Under the provisions of s78 (6), the creditor is not entitled to enforce the alleged agreement while this default continues. My request under s78 of the Consumer Credit Act 1974 was sent to Allied International Credit (UK) Limited, the debt collection agency who claims to be dealing with the alleged agreement and have raised the statutory demand. This request was received and signed for on the 11 April 2007.

Further, I believe that the amount of £8081.70 referred to in the statutory demand includes a substantial sum of unlawful penalty charges. Allied International Credit (UK) Limited have not provided further information regarding the charges they have added to the account despite my requests by telephone, and still have not provided a statement of account (as requested under s78 CCA 1974).

This case should require no more than 30 minutes, as it is based on matters of fact only.

[tomterm8]

Next step, send guaranteed delivery (NOT recorded):

Claim:XXXX

XXX VS YYY

Dear XXX,

I have received the Statutory Demand sent by your Company or client. To enable me to file a defence I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. The information must be furnished by DATE, which gives you 14 days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.
2. All records you hold on me relevant to this case, including but not limited to:
a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.
b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor
c. Where there has beenany event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with Barclaycard.
d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.
e.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.
g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.
i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998
j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

3. Any other documents you seek to rely on in court.
4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.
5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

I will require this information within the next 14 days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence on this serious matter.

Yours Sincerly,


XXX.

[tomterm8]

Plus another letter, this time, send recorded:

"

Claim:XXXX

XXX VS YYY

Dear Mr X,

Please find enclosed a recent copy of a court order made against both parties to this action.

i request you send me a copy of your proposed directions, so that we can agree them if possible.

Yours Sincerly,

XXX.

[user56565]

Hi Guys

Thanks for the replies.

Just an update.


AIC sent a letter on xxth June chasing payment and threatening that agents would visit our premises. Note this was whilst the whole debt was in dispute and before we received the court's order (on the xxth June).

We have heard no more from AIC, and Amex instructed Newman instead, around the end of July. They have threatened to send agents round, and have sent letters demanding payment etc etc. We have ignored them as the account is awaiting a court date.

OH is going onto a DMP shortly (one of the free ones) and has been advised by them to not correspond with either DCA or OC. In their opinion, as a new DCA has been involved it is unlikely anyone will show up on behalf of the creditor at the hearing.

OH called the court and asked whether she would have to discuss the hearing with the creditor. The court official said that if she felt threatened and intimidated by them, then she could just submit the proposed directions and attend the hearing.

As such, we have not sent out SARs, CCAs, etc. We will be submitting the proposed directions as per TomTerms draft above. I will post updates as the hearing approaches in just over x weeks away.

[tomterm8]

Originally Posted by user56565

Hi Guys


As such, we have not sent out SARs, CCAs, etc. We will be submitting the proposed directions as per TomTerms draft above. I will post updates as the hearing approaches in just over 2 weeks away.

If you have not already done it, you should send the disclosure request and proposed direction request, by fax, today. It is vital.

I never did write your proposed directions, did I?

find them attached.

[user56565]

The judge has ordered that:

(1) The parties are to file and serve at least 5 working days before the directions hearing:
(a) Draft proposed directions, agreed if possible
(b) Summary in not more than 250 words of the party's position with particular reference to the time estimate for final hearing

TomTerm8 - sorry about this but I'm confused.

Are we supposed to submit items (a) and (b) directly to the court??

i take it (b) is just a summary of what we are wanting ie a set aside, and therefore along the lines of the original application?

i take it (a) is meant to be like a draft order that we would want the court to send out. is my understanding correct??

I apply for the statutory demand to be set aside as the creditor is aware the debt is in dispute, the creditor has failed to comply with its obligations under the Consumer Credit Act, and I believe that the creditor issued this statutory demand as an abuse of process intended to pressure me into paying the full amount of a disputed debt contrary to the OFT Debt Collection Guidelines.

The creditor has defaulted under section 78 of the Consumer Credit Act 1974 for failing to provide a copy of the alleged agreement on request within the prescribed period. Under the provisions of s78 (6), the creditor is not entitled to enforce the alleged agreement while this default continues. My request under s78 of the Consumer Credit Act 1974 was sent to Allied International Credit (UK) Limited, the debt collection agency who claims to be dealing with the alleged agreement and have raised the statutory demand. This request was received and signed for on the xx xxxx 2007.

Further, I believe that the amount of £xxxx.xx referred to in the statutory demand includes a substantial sum of unlawful penalty charges. Allied International Credit (UK) Limited have not provided further information regarding the charges they have added to the account despite my requests by telephone, and still have not provided a statement of account (as requested under s78 CCA 1974).

So your earlier post of 14th June 11:48 is the summary for (b)?

I do not understand all of the points in the directions you posted:
> There is an item beginning 'in respect...' in between e and f, is that also meant to be bulletpointed ie point f??
> The directions seem heavily skewed toward the claiming of bank charges, does this matter or should it be submitted as is?
> It states that if the applicant fails to comply with the order, the application will still be granted - is this correct?
> Do I need to shrink the directions as the judge has allocated just half an hour for the hearing??

I had until now just assumed the judge would set aside the statutory demand on the day of the hearing?

[tomterm8]

b is the content of post 21 ;

> There is an item beginning 'in respect...' in between e and f, is that also meant to be bulletpointed ie point f??

no, if is supposed to include points f- j , so it shouldn't be included in the list.

> The directions seem heavily skewed toward the claiming of bank charges, does this matter or should it be submitted as is?

The reason the directions are heavily skewed towards the claiming of banks charges are that your main arguments are:
(a) they haven't provided a notice or document of assingment(no proof they own the debt)
(b) they haven't provided a consumer credit agreement (no proof the debt is enforceable)
(c) they haven't proved that the amount of the debt is stated;
(d) there have been illegal charges placed on the debt, comprising a substantial amount of the debt, and so the statutory demand is for a disputed debt.

since (a) and (b) are quite quickly disposed of, they are done in a single line of the directions. (c) is disposed of by requesting statements of account for the entire duration of the account; (d) therefore comprises the majority of the directions even though that is the last important point of the argument.

Since the information required dor point d, is the same as a-c, you do tend to end up with a draft order very like a bank reclaim case. Hopefully, though, the court will just set aside the stat demand anyway. (frankly, I believe if you provide the draft directions, it is highly unlikely they turn up - in the main, the point of providing them is to ensure that your application isn't denied on a technicality).



> Do I need to shrink the directions as the judge has allocated just half an hour for the hearing??

No. the pain points of the hearing are in 21; the directions are asking for proof & further information. It really shouldn't take more than a few minutes to explain them, in line with what i've said above.

> It states that if the applicant fails to comply with the order, the application will still be granted - is this correct?

oops. edited. Nice try, tom

[tifo]

some useful info .... i have a creditor threatening this .... on a debt the bank sold to them when i asked for charges back ....

[linz2011]

subbing - just received a stat demand

[Santos L Helper]

Hi all

I have not received a statutory demand but a notice that one will be delivered in a weeks time. This was delivered by hand and a copy of the same notice delivered by first class post.

Strange thing is it doesn't say for how much or who its from??

I have no knowledge of any impending court action, nor have I ever had a CCJ or anything.

I have alot of creditors whom I have asked for copies of CCA's. Some have replied with application forms and one has supplied a proper agreement.

Is this a new tactic by creditors just to go straight for bankrupting people instead of going through the court process??

Also how easy is it to bankrupt someone for credit card debt without trying to come to an arrangement before using the courts process.

Ps I have read around the forums but have not managed to come up with anyone who has been in this situation.

Any advice on my next move would be appreciated.

Regards

Santos

[rory32]

Is this a new tactic by creditors just to go straight for bankrupting people instead of going through the court process??

It seems to be relatively new e.g. the last year or so.

Also how easy is it to bankrupt someone for credit card debt without trying to come to an arrangement before using the courts process.

Not terribly easy unless you don't defend it.

Remember SD's are not necessarily used to make you bankrupt but often to frighten people into paying.

[Having_A_Knightmare]

If a creditor has gone straight for Bankrupty before trying to sort a repayment plan would the Court feel strongly on your behalf

[rory32]

If a creditor has gone straight for Bankrupty before trying to sort a repayment plan would the Court feel strongly on your behalf

Have a look at this thread http://www.consumeractiongroup.co.uk...statutory.html