Advice please set aside statutory demand! *** WON ***

**terlyn1104** · 6th May 2009 18:51

Hi all

I am in court on Friday 8th May 2009 as I applied for a statutory demand to be set aside icon

with regards to a debt with HFC via Weightmans LLP, which was successful

The account was in dispute and they still proceeded to pursue the debt, furthermore there is no consistency in the amounts they seek and no information requested regarding charges etc.. has been received

I have not heard from Weightmans since I received the notification from the court with the date, however, today I receive a 'witness statement' from Weightmans asking for the set aside to be dismissed icon

as the application is misconcieved! furthermore they state that the SD was prepared and sent for service in January but not served until March due to the fact that I had made a payment to HFC back in October 2008!!!! this is completly untrue it was not served because the account went into dispute and they put it on hold (I have confirmation in writing of this) - they also have the unlawful charges incorrect by nearly £200 - they have finally confirmed ther charges of £242.94 and state that the debt still falls above the statutory insolvency limit of £750 even with the charges off! so not true!

they are alo seeking an award for costs of £615 in addition!

I am a bit confused as to what this witness statement is about - are they asking the judge to dismiss the hearing set for Friday? or is this there case ready for Friday?

If they are asking to dismiss - how can I appeal or make my concerns heard before Friday? I have responded to each point and have copies of letters ready to object

It just says on the covering letter :

'We enclose by way of service, Witness Statement of Mr Murphy together with schedule of costs in readiness for the hearing on 8th May 2009'

To me this sounds like the hearing may or may not happen!!

I would be grateful if anyone has come across this before or can advise me

Many thanks

**clemma** · 6th May 2009 19:55

Just bumping this up for you!

**twofoot** · 6th May 2009 22:23

You have eft it very late in the day and maybe too late. From what I see it seems the are in court on Friday asking for your set aside icon

to be lifted. If that's the case you need better advice than I can offer.

**terlyn1104** · 7th May 2009 08:20

I only received their witness statement yesterday! and I am sure the court will have too

Was concerned that they were trying to get the case dismissed icon

prior to date - but fine with attending tomorrow - what the witness statement proves is a pack of lies - i have written evidence to produce to confirm and nothing in the statement frightens me was more concerned I wouldnt be able to put my case forward to the judge with regards to their statement

wish me luck!

Maybe I should seek costs too!

**clemma** · 7th May 2009 08:23

Just wishing you good luck for tomorrow - seems like your all clued up and know exactly what you are doing

**42man** · 7th May 2009 08:38

Don't forget to submit your costs TODAY !!! they have to be in the court 24 hours before the hearing.....

Head a sheet of paper with LITIGANT IN PERSON COSTS

Ask for £6 for each letter written.
Postage
Parking
10 hrs reasearch into The Insolvency Act @ £9.25 pr hour and 10 hrs research into the Consumer Credit Act, and time off work....

**42man** · 7th May 2009 08:39

And quote the judge this - Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

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).

**terlyn1104** · 7th May 2009 08:39

thanks Clemma!

I hope I have got everything be a sorry day if I lose as the debt will increase by another £615!!

I have noticed from the statement that they make reference to PPI icon

on several occassions - this was cancelled over 18 months ago (I have written confirmation from HFC) - I am assuming that they are trying to imply that a default has occured because payments made have not included the PPI (an extra £9 per month) - they have also confirmed that interest icon

has been charged on this PPI even after it has been cancelled!

and better still, I questioned whether the account was in default at all - they said I missed april / july payments and the payment I made in October did not cover the arrears - however, I had been making slight overpayments to the account for several months and from working it out from the statements as at 3rd October (when the debt was assigned) I was £12.01 in credit and not in arrears at all!

they still have not given me a Breakdown icon

of the amount - several statements / correspondence all detail different amounts there is no consistency at all! - even with what it states in HFC default letter (dated 28th Feb 2009 and only one ever received!) and adding weightmans charges there is a descrepency of approx. £300!!

They are trying to cover their bums as to why they continued to pursue this debt whilst in clear dispute and some sorry excuse for charges implied - his witness statement does not add up, the statements do not add up nothing makes sense at all

The court hearing is at 12.30pm tomorrow - I also notice from the costs which he has filed that no travel expenses have been added! - he would be travelling at least a 150 mile round trip?????

anyway, thanks for the luck - will upate you tomorrow

**terlyn1104** · 7th May 2009 08:43

Hi 42Man

Will they accept a fax to file for costs? - I cannot get to the court today at all!

I thought you had to be a legal exec etc.. to claim costs???

Do I quote the judge the above case when I respond to Weightmans witness statement or when filing for costs?

In your professional opinion what do you think my chances are?

**foolishgirl** · 7th May 2009 08:47

Originally Posted by terlyn1104

I have not heard from Weightmans since I received the notification from the court with the date, however, today I receive a 'witness statement' from Weightmans asking for the set aside icon

to be dismissed icon

as the application is misconcieved!

I am a bit confused as to what this witness statement is about - are they asking the judge to dismiss the hearing set for Friday? or is this there case ready for Friday?

To me this sounds like the hearing may or may not happen!!

Originally Posted by terlyn1104

The court hearing is at 12.30pm tomorrow - I also notice from the costs which he has filed that no travel expenses have been added! - he would be travelling at least a 150 mile round trip?????

'To me this sounds like the hearing may or may not happen!!'

To me it sounds as though Weightmans are not planning on turning up

Anyway, sounds as though you're prepared if they do. Good luck, hope it all goes well.

**terlyn1104** · 7th May 2009 08:51

I thought both sides had to attend - we were told by the court official that if we didnt turn up the case would go in there favour!

thats hope they dont

Thanks again - I will fax my costs through to the court before 12.30pm

**42man** · 7th May 2009 08:51

Yes FAX the costs through.....you are allowed to claim your costs...see this thread here - http://www.consumeractiongroup.co.uk...-credit-6.html

Quote the case in front of the judge T......I think you're chances are good. Just be firm but polite...call the judge sir/madam, you should be showing how annoyed and distressed you are at receiving a demand which is obviously being used as a debt collection icon

tool....ask the opposing solicitor why your application to set aside icon

is 'misconceived' ??

**42man** · 7th May 2009 08:54

And if by some miracle they do turn up at the court and want to talk to you...say 'you talk, i'll listen'....and say that you'll dismiss the hearing if they pay your costs....

**terlyn1104** · 7th May 2009 09:02

am i allowed to dimiss the case? how does that work if I do? - surely they would still try and file for bankruptcy on me?

Oh my god I am getting the jitters now - thought I was all sorted!

Lets just hope no one turns up and I have an understanding judge!

**42man** · 7th May 2009 09:09

Please try and relax T......if it gets set aside icon

(which in my opinion it will) then they will not be able to petition for the bankruptcy.....also was the default notice correct ?

**42man** · 7th May 2009 09:12

You can make the judge aware of this also - http://www.consumeractiongroup.co.uk...isselling.html

**42man** · 7th May 2009 09:15

You can tell the the judge that the OFT are very interested in your case too....

**42man** · 7th May 2009 09:16

Just a heads up as a 'guest' is watching...

**tiglet** · 7th May 2009 09:26

Which area are you in? I found it really helpful when a fellow Cagger came along with me - perhaps someone may be able to come along and hold your hand, as it were?

The important thing to do now is to get your file ready with everything in coherent order. I would suggest taking a photocopy of the witness statement, go through it scrupulously and use a highlighter pen to highlight inaccuracies and inconsistencies. Then do this again to make sure you haven't missed anything.

Once you've done this, make a defence sheet (bullet-pointed) refuting the inaccurate claims and get your piece of evidence for each of these ready and make a photocopy for the judge. Number your evidence so that it corresponds with the bullet-points and then you will easily be able to find it when you are in court. They may turn up tomorrow, they may not - however, if you are completely prepared and have your evidence, you stand a very good chance of things going your way.

Good luck and let us know how you get on.

**terlyn1104** · 7th May 2009 09:29

will e-mail you direct

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