Thread: Off to court within the week for a set aside on SD - **WON** PLUS COSTS AWARDED

I'm off to court next week for a set aside on an SD from CapQuest.

I have only had printouts of an "account" from the OC and nothing else disclosed in the SAR.

My defence is here http://www.consumeractiongroup.co.uk...ry-demand.html which I hope is ok.

Been told to just be honest which I will be but I'm not really sure what happens at one of these and I'm rather nervous. Can anyone help and advise me please?

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Hi Rory
Yes I invited the court to order cost in favour of me in respect of reasonable cost of preparing the application and attending any hearings in respect thereof.

Also, reading some other bits, if they didn't apply the Law and Property Act correctly and send a correct default notice, they have made a big boo boo, is that correct?

Vamp...I haven't read through all your thread..BUT

Remember these...

You are totally disputing the debt and know nothing about it despite ....If you have made any payments they were made under duress after the collection agency frightened you into paying...

Common sense tells you that you have had no statements from the alleged OC ?? no default notices, (tell the judge this) any notice of assignment from the alleged original creditor...

It is not uncommon for debts to be made up entirely of excessive charges.

Have they supplied an agreement ?? If they haven't supplied any agreement (if they come up with something) then simply say...well I want to see statements...

Has the demand been served PROPERLY ? If not then the demand has NOT been served in anyway...just sent by 2nd class post, which is an abuse of process (THIS IS REALLY IMPORTANT) - then quote to the judge what Judge Warren (High Court Judge not a county court Judge who are at a lower level... said in this case...

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


That - 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).


As no attempt has been made to 'serve' the demand you believe this is a frivolous attempt to frighten me into paying when they have sent NO paperwork apart from a letter saying 'YOU OWE US THIS'.....You believe that this is a total abuse of the Insolvency service.

AND REQUEST THE JUDGE PAY YOUR COSTS !!!

Write these down on a sheet of paper and give it to the judge...and say 'Sir i'd like to gracefully request that you order the claimant to pay my costs as litigant in person'


LITIGANT IN PERSON COSTS

10 hours @ £9.25 - £92.50 (as an example)

PARKING -

PLEASE, PLEASE ASK FOR YOUR COSTS.....My own feeling is that nobody from Capquest will turn up...IF they do, and they want to talk to you...DO NOT ADMIT ANYTHING, and say you will agree to discontinue if they pay your costs....

They may have written a snivelling letter to the court saying that they want to discontinue....BUT if they have then they have NOT told you !!!! which is also an abuse....YOU MUST MUST MUST ASK FOR YOUR COSTS.....

Call the judge sir, dress smartly, speak slightly louder than normal and be FIRM but polite....

If for any reason it is turning pear shaped or they bring an agreement say 'I would like to request an adjournment to get the agreement checked by a legal expert - and ask the judge to reserve a decision on costs' - (this is a worst case scenario !!)

Quote the judge the Consumer Credit Act if he questions the non production of the agreement....

Consumer Credit (Prescribed Periods for Giving Information) Regulations
1983 (SI 1983/1569)

2 Prescribed period
The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1
of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements



SCHEDULE
SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN
RELATION TO REGULATED AGREEMENTS
Regulation 2
Section of the
Act
Duty
(1) (2)
77(1) Duty to give information to debtor under fixed-sum credit agreement.
78(1) Duty to give information to debtor under running-account credit agreement.
79(1) Duty to give information to hirer under consumer hire agreement.

and section 78 for running credit


78.
Duty to give information to debtor under running-account credit agreement.
— (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 [F1 £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

(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.


(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3) Subsection (1) does not apply to—
(a)
an agreement under which no sum is, or will or may become, payable by the debtor, or

(b)
a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.


(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—
(a)
showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b)
where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.


(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(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


----------------------------------------

If the judge disputes the Act (highly unlikely) because of the later amendments to the Consumer Credit Act....then simply say that as you believe it is a pre-2006 agreement then the Act was not amended on the above rule....

This is the piece that confirms it below...

PRE 2006 agreement legislation…

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Version 1 of 1

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

(c)

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.

Ian McCartney

Minister for Trade, Investment and Foreign Affairs

Department of Trade and Industry
23rd January 2007

---------------------

If for any reason the judge doubts this....quote the Wilson vs First County Trust Case....

----------------------

If the judge throws this out then quote that the agreement MUST contain the prescribed terms...

------------------------

Seriously.....I really don't think you will need the Consumer Credit Act (but take along the parts I have highlighted above)....

It all depends on the judge.....but highlight the NON SERVED DEMAND AS AN ABUSE OF PROCESS....

RELAX.....the worst he can do is allow the stat demand to go through....which will mean they can petition for your BR....(worrying as it sounds....if it gets to this stage

I think you'll be pleasantly surprised when you go to court....just remember what you wrote in defence the stat demand.....

Thank you both.

I think the CA is a good un which means even if this is set aside I would gather they'll got for a CCJ - but if I can make it to next March the 6 years are up!

Would the judge mind if I took notes as I'm sure I'll never remember everything or at least get muddled?

I really do not have any original statements, I have never recieved a default notice and I have never received a notice of assignment from the OC.

The SD was sent via 1st class post - is that properly served?

I checked the paperwork I got from HBOS last night and the alleged debt is £1500 something, (forgive me my head is spinning with stuff at the mo), but about £100 of that is charges interest and payment protection. So it brings it down to £1400 something OC claiming for. CQ claiming £2200 something around £750 more than the alleged debt and this is what they have put on the SD.

HBoS not sent any other things except badly printed out what they consider "statements" and trust me, they say on them "statement date" and when to "pay by" which HBoS make it look like they have been sending out, but I have not heard from HBoS in years.

I also have a letter from HBoS saying they do not have to keep manual interventions on the account.

Plus this is the one which is served to Miss Vampyra WrongSurname! Surely, that wont help them?

Also, the CA which they sent originally has not been sent out again they keep sending a copy out with no T's & C's on the back *shrugs*

I have to admit I am scared. I've told no-one and I'm doing this entirely alone.

It can only be served by 1st class post if they have failed to serve it by a process server but there would be an AFFADAVIT from a process server in the file....a judge will only allow susbtituted service (by post) if a process server has tried unsuccessfully to deliver the demand by hand ....give the court a call and ask them if there is an affadavit from a process server there (in the file)!!! if not then it's GAME OVER !!! they have served NOTHING on you !!! You don't even need to mention ANYTHING about the debt if the process has not been carried out correctly !!!! it is an abuse of process !!!!!

As far as I know noone has ever tried to serve anything by hand. Don't forget, I'm in most of the time because of caring for mum.

Even though I don't pay for day care, mum has had to go into day care on the day of the court case so could I claim for that too?

I'll ring the court now. Do they have to tell me?

The procedure to get a statutory demand set aside.

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy.
One method of avoiding bankruptcy is to get the statutory demand set aside.
To successfully get a statutory demand set aside one or more of the following must be satisfied:-

• The amount stated on the statutory demand is disputed.
• The person issuing the statutory demand also owes money. This is called a counterclaim.
• The person issuing the statutory demand is holding security that equals or exceeds the amount owing.
• The demand was issued in error.
• The amount owing is less than £750
• Execution has been stayed on a judgement debt.
• The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.
• The creditor failed to comply with the rules and prejudiced the debtor in the process.

Why are Statutory Demands to powerful?

• The Statutory Demands procedure is simple to implement.
• To issue a statutory demand all you need to do is complete a form.
• You can send a statutory demand by recorded post, without the need of personal delivery.
• You do not need a solicitor to issue a statutory demand.
• You do not need to pay expensive court filing fees issue a statutory demand.
• People assume that a solicitor has been utilised so get scared and pay immediately.

What are the time limits to get a statutory demand set aside?

An application to set aside must be made with 18 days of the statutory demand being served.

Ring them, say you are the defendant and ask if there is an affadavit in the file from a process server....

Well I've phoned the court and some good and bad news.

Thank you by the way for the above I have read and digested.

The bad news is that CQ have not written to the court saying they do not wish to continue - apparently they have done this with many cases recently. EDIT - Apparently they have sent many letters to the court saying they do not wish to continue action. So they seem to want to continue with mine!

the good news is they have not answered the set aside. So no Affidavits of any kind held on file.

The bad news is that they can bring this all to the hearing and it will be looked at then.

The court advised me to ring CQ - I said I have been advised never to talk to them.

Oh and I still have the 1st class envelope too!

As you can see from other threads CQ don't turn up !!!.....but if it was me, I would avoid calling them as you don't want to disadvantage yourself in anyway by speaking to them, the decision is up to you....as you can see on the CAG very few of the stat demands have been granted by a judge....

If they have NOT informed you that they are discontinuing, then go and claim your costs.....tell the judge in no uncertain terms, that the debt is totally disputed and they know it, but have not informed you.....

Even better take the envelope with you....!!! You can say that you feel as Justice Warren said (and quote him to the judge too)...in the Hammonds vs Pro-Fit case in 2007 - 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.

I'm not going to ring them that would be stupid.

I just hope they don't turn up but need to be prepared for someone having a personal vendetta from CQ. Maybe HBOS wont be so concerned as they are currently nearly going bust!

Oh yes the envelope will be going - I have done a copy of everything for the judge too.

Will it be ok to take along a sheet of paper with my expenses on it and hand that to the judge?

BTW, the court lady tried saying "why was I being advised about a process server affidavit? You have answered the SD therefore you acknowledge receipt of it."

I didn't argue I just said someone is advising me and asked me to ask. She didn't really want to say then found there was nothing on file and volunteered to check the pending post and there was nothing there either.

Thank you very much for your post.

This whole process of my debts has been ongoing for nearly 8 years. Just so you know, my mother has severe dementia, (really off the planet), and physical disabilities. I am her full time carer. I panic because I have so many things I do daily, I often forget advice or forget details and as someone who is a bit of a perfectionist when it comes to dealing with matters, I want to be 200% of what I am doing.

Also, a lot of advice changes as new things come to light, so it's better for me to go back and ask and check just to be sure.

Fingers crossed they do the usual and no show.

Great post...thanks Monx, really appreciate it !!