Does it have a court named on it ?.

Yes, its states our local county court near our home address this is in the Part A form 6.1.

Have it set aside on the grounds that the dates are different, (hold onto the envelope that it was in).

Will this mean they will have to issue paperwork again with the correct dates ?

To the OP - Are there any reasonable elements that prevented the demand from being served in person?

Also for me, I believe potentially that the date of the letter is enough to set aside as it should be served promptly upon the person they wish to make bankrupt.

Its almost 6 weeks since they sent the letter.

It feels like they may have been sitting on it and by delivering it late thus attempting any legal right you may have to have it set aside.

Yes totally agree,

we need to send the form to have this set aisde on Tuesday when the court opens, which forms are required to complete this process.

I believe it might be an IAA Form which maybe available in our library and also available from the courts website etc.

More info may also be available on the .Gov website on Stat Demands.

the SD would have simply be download by should have been served IN PERSON by a process server

or

at court they'll need to produce a statement witnessed and signed by the process server to say he was unable to serve in person for the above reasons.?

an SD at this stage has not been near a court

and a court will know nothing about it.

this is very much like the way lowells used to operate years ago by issuing SD's as a debt collection tools like confetti.

they got castigated for it.

the way to deal with it is in our legal section of the library.

worry about any wrong dates/poor service later.

just get the forms in.

dx

Statutory demands are just a piece of paper created by the claimant. They don't come from the court and don't require a court filing. I imagine the claimant just completed a form they found online and sent it to you. The effort required on their part is tiny.

Furthermore, statutory demands are only supposed to be used for undisputed debts.

It also seems that they have not bothered to comply with the rules for properly serving statutory demands - in particular the requirement that they should be served personally (the rules basically say you can't serve it by post).

Where a statutory demand is used for a disputed debt, you can apply to have the statutory demand formally set aside - essentially this is a short court procedure in which you ask the court to confirm that the statutory demand is junk. This typically results in an award of 'indemnity costs' - i.e. the person serving the statutory demand is required to pay all of the legal costs of the recipient.

I think you have three options:

1) Apply for the statutory demand to be set aside. You should be able to find a solicitor who can do this for a competitive fixed fee, and I think you can be pretty confident that the costs incurred would need to be paid by the claimant.

2) Do nothing. It is easy and cheap for people to issue statutory demands. If the statutory demand is not satisfied, the claimant would then need to decide whether they want to go ahead with initiating a court claim, or applying for bankruptcy proceedings. There is a good chance they will not do this - since in order to apply for bankruptcy proceedings, they would need to make a formal application to the court and pay a substantial fee (last time I checked the fee was £700 but may be higher now).

3) Write back explaining that the statutory demand was not properly issued, and inviting them to withdraw it. You could do this if you want, but I think it is a waste of time given that it sounds like the claimant is not bothering to comply with the court rules and most likely does not know what they are doing.

I personally would go with option 1. I would at least explore the possibility of getting a local solicitor to have the SD set aside on a fixed fee arrangement, it sends a very strong message and gives the claimant a bloody nose when they are ordered to pay that fee.

If you want to go with option 2, that's fine too. It just leaves you in the same position you've been in since this thread was created in 2009 (!) If the claimant was actually going to initiate court proceedings, I am sure they would have done it by now.

This has been going on so long that surely any "debt" (if there ever was a debt ) is more than 6 years old now, and so statute barred anyway?????

A SD can be served by first class post, but the claimant may have to show why personal service was not 'reasonably practicable'. Personal service can also be performed by the claimant, they don't have to use a process server (but the advantage of a process server is that they are able to create a certificate of service that the court is unlikely to doubt!).

OP, keep the envelope it arrived in, with the postmark.

Regardless of the date written on the SD, what will matter to the court is the date is was posted, and thus the date it would be deemed served : otherwise anyone could create a SD, date it, keep it 14 days and then give the respondent no time to seek a set-aside - the courts won't allow this.

Post #33, Jan 2015.

Yes, your wife will probably have to attend to court. She won't have to say very much. The civil courts are not like the criminal courts you see on TV - it will simply be a small room in your local county court with the claimant and the judge. Each side will explain their case to the judge, and the judge will then make a decision.

 

It is not too upsetting. Anyone can handle it. You could even save the monthly payments you would have otherwise made and use them to employ a solicitor or barrister to attend the hearing on your wife's behalf. Even if you self-represent I think a court hearing would be much less stressful than the alternative, which is to let this bullying persist for years and years.

 

A bankruptcy would be equally stressful, since your wife would be required to attend hearings with the official receiver.

Post #35, Jan 2015

Hi

As the promissory note does not state it was signed as a deed, in my view it is not legally enforceable.

 

In order to have a legally enforceable contract, there must be what is known as "consideration". This means there must be an "exchange" - in other words, your wife would need to received something of value as part of an exchange in order for her promise to pay money to be legally valid. My understanding is that your wife did not receive anything in exchange for signing the promissory note and hence the promissory note is legally enforceable as a contract. You may read http://en.wikipedia.org/wiki/Consideration_in_English_law to confirm this.

 

The only exception to the above rule is where you have a document which is signed as a deed. A deed does not require consideration. One of the requirements to have a valid deed is that the document must clearly state that it is a deed. If it does not state this then it is not a deed.

 

In a sense, this is a technicality. But it is a fundamental technicality and has been a rule of English law since the 1400s - the courts don't enforce contracts like promissory notes unless both sides have exchanged something. Any first year law student could tell you the same thing. I don't think a judge would have much sympathy for them on this given that they pressured your wife into signing it.

post #48, February 2015

Not panicking at all as my wife has a bankruptcy hearing in 2 weeks maybe sooner, and the debt is included. I bet the court papers are hear within the next few days then we have 14 days to file a reply and by then my wife will have had her hearing.

 

Bankruptcy is the best way forward as she also has a mortgage shortfall of £40k. So its needed to clear everything and start a fresh.

Post #51

My wife's bankruptcy hearing is due on 2nd March 2015,

Post #67. 13th March 2015

Bit more information the loan was paid into the company account before any administrator was appointed about 4 months later. They seem to be replying on the promissory note as proof.

 

I have wrote to the solicitors stating the our point of view, had no reply as yet.

The OP doesn’t make any mention of if his wife’s bankruptcy went ahead.

They then also didn’t return to the thread until August 2015 (and again, no mention of the wife’s bankruptcy or if it didn’t proceed ……..)

Did your wife declare bankruptcy?. If so, did she include the ‘promissory note’ in her declaration to the OR?.

URGENT HELP

Well letter today,

 

My wife has had a letter as follows:

 

Issued today Statutory Demand under section 268(1) signed by the claimant on 06/03/2017 yet the demand envelope dated 12/04/2017 ?

 

They forms state we have 18 days to have to bankruptcy set aside or pay a total of £21,000 in full, we cannot repay the amount and my wife will not go to court as she is too upset.

 

With the form it states payable immediately, it also states property and goods can be taken away from you ?

If your wife didn’t go for bankruptcy previously, then they MIGHT be doing you a favour…… it depends on if going bankrupt (but ONLY related to the mortgage shortfall!!) is her best option.

If she feels that bankruptcy (paid for by the people who have been hounding you!) will:

a) clear the mortgage shortfall and

b) bring this 7+ year campaign to an end,

she might consider it!.

Alternatively, you have plenty of grounds to get the statutory demand set-aside (cancelled), if going bankrupt is not her best option.

The could get the SD set-aside on ‘procedural grounds’ that it’s service was defective, but they could then just get it re-issued correctly.

So, you are better also applying for the set-aside on the grounds that there is a genuine dispute as to the debt

(previous postings as to why:

a) Company debt, included in company insolvency

b) OP’s alleged personal responsibility : Debateable it could have been transferred from the company’d debt, but even so, OP declared bankruptcy subsequently ,

c) Wife’s ‘promissory note’ wasn’t executed as a deed, and thus is unenforceable as no contract was formed for want of consideration.

I think you have three options:

 

1) Apply for the statutory demand to be set aside. You should be able to find a solicitor who can do this for a competitive fixed fee, and I think you can be pretty confident that the costs incurred would need to be paid by the claimant.

..............

 

 

I personally would go with option 1. I would at least explore the possibility of getting a local solicitor to have the SD set aside on a fixed fee arrangement, it sends a very strong message and gives the claimant a bloody nose when they are ordered to pay that fee.

I agree with SP, especially as:

and my wife will not go to court as she is too upset.

She is going to potentially face questioning either if she declares bankruptcy (questioning by the OR), or if you apply to have the SD set-aside.

If you have a solicitor acting for you for the set-aside application , the solicitor can make representation, and you wife will only have to speak if the judge asks her a question directly (such as if they want clarification on a point that the solicitor can’t answer for her .

OP should also actually update the thread with what happens (they didn't update it regarding their wife's bankruptcy hearing, for example) , rather than again disappearing, only to pop back only when the next demand letter is received.....

My wife did`t file for bankruptcy in 2015 as she was to upset to attend the court and we cancelled the appointment, the last payment was paid to the claimant was in Sept 2014 and nothing since.

the last payment was paid to the claimant was in Sept 2014 and nothing since.

(Not that you should need it, as you have plenty of other grounds for defence, but : ) So, statute barred not a defence available to you until Sept 2020.

My wife did`t file for bankruptcy in 2015 as she was to upset to attend the court and we cancelled the appointment.

So, she needs to decide if bankruptcy is her best option (regarding the mortgage shortfall).

She faces questioning at some point : (by the OR if declared bankrupt at her instigation or by the people who have served the stat demand), or (by the court) if she applies to have the SD set-aside, unless she stumps up the £20k+ (which seems to be what the other side are relying on???)

Again, getting a solicitor to act for her in applying to have the SD set-aside may be the least stressful option for her....

Applying to make yourself bankrupt has a £680 fee.

If they want to apply for bankruptcy, they would have to pay the £680 fee rather than your wife.

And even if your wife was made bankrupt, I doubt that would stop the requests for payment.

You may simply have to learn to ignore these requests - unless and until court action is actually issued.

We have been chatting all weekend regarding this issue,

i have a question regarding the process of paperwork relating to bankruptcy,

the statutory demand is only a demand and the claimant must submit the main bankruptcy papers to the court and my wife and the Bankruptcy fees paid in full by the claimant.

Once the papers have been sent to my wife can she added all her debts to include them within the bankruptcy.

After speaking to another family member regarding this issue

they have stated the only reason they have issued bankruptcy papers is not to get funds back but try to make us homeless as they think our landlord to cancel our tenancy agreement,

i have read our tenancy agreement and there is no clause relating to bankruptcy coupled together

we have been with the same landlord for over 7 years with no payment issues,

however i have spoken to our landlord who we have a good relationship and he has no issues and this will not effect our tenancy.

Sit tight then. Call their bluff by doing nothing.

Why? Because it still leaves you "in the driving seat".

If they don't issue a bankruptcy petition you'll know they were just trying to use it as a threat, and that hasn't worked.

If they do issue a petition and it suits your wife to let them pay her bankruptcy fees (and removes her mortgage shortfall) : they still won't get what they are claiming.

(How long has the shortfall existed? Don't forget the mortgage company [following the CML guidelines] won't usually try and enforce it if they haven't started to do so within 12 years)

If they do issue a bankruptcy petition and your wife decides to oppose it, whilst it is usual to oppose at the stat demand stage, there is no obligation to do so

(Case law: Barnes v Whitehead [2004] B.P.I.R. 693)

See

https://www.lawgazette.co.uk/law/the-ins-and-outs-of-being-in-debt/3817.article and

http://swarb.co.uk/barnes-v-whitehead-chd-2004/

If you went down this route your wife may have to explain why she chose to oppose it at the petition stage rather than the Stat Demand stage : your answer to that is that (given all that has gone before) you knew the other side were aware there is a genuine dispute as to the debt, you believed they were 'just trying to use the threat of bankruptcy as a debt collecting tool" and believed they wouldn't actual issue the petition...... you back this up with a witness statement referring to the 7 years of correspondence [which you include as exhibits]

The shortfall relating to our house and dates back to 2009 when the house was sold by G E money.

i have explained that the bankruptcy will clear the shortfall and any our debts and the bankruptcy fees will be paid by the claimant.

My wife has no assets and no saving,

our family car is in my name with proof of payment,

i also have a car but that has finance outstanding as well.

Items in our home are nothing flash normal TV, fridge, and general household goods therefore overall in real terms she has no assets. but she is a little worried after the bankruptcy bailiffs will come knocking.

That is IF it proceeds to a bankruptcy petition

(which seems unlikely if they'll have to pay and aren't getting what they want!)

and (even then) IF you choose not to oppose it (in other words if you decide it is right for you both).

You've been through bankruptcy, so can advise her / remind her of how you got through it.

Bailiffs from who? / how?.

Not from the OR, nor from any creditors, who get referred to the OR!

Did you get bailiffs around when you declared bankruptcy?

I bet not.

Afternoon,

i did have bailiffs around to the house just after my bankruptcy relating to a debt which was listed correctly within my bankruptcy they left with nothing,

i think that`s why she thinks they may come around to our house,

personally i do not think they will carry out the threat as they will have to spend money and get nothing in return.

just going t wait and see if they file as this will be best option to clear the wife's credit file.

Bailiffs have rules to play by and remember Bankruptcy is an official law related status and process.

So i wouldnt worry

I can see you are in good hands with everyone here, I just hope weve been able to put your OH mind at rest

OK: to make things clearer:

The bailiffs can come round, but there is no point for them once they are aware you are bankrupt.

If they aren't aware you are bankrupt, you:

a) don't let them in, and

b) show them the bankruptcy papers, referring them to the OR.

Same result: they leave with nothing.

More to the point, they would only be acting as bailiffs if there was a CCJ or court fine (from a criminal case).

If your wife hasn't received a fine or CCJ why is she concerned about bailiffs?.

If the visitors were merely acting on behalf of a DCA (regardless of if they belong to a firm of bailiffs!),

they'd have even less authority, and you just tell them to leave!.

I can't see how your wife's fears have substance to them if she looks at them logically, for all the reasons previously noted.

they have stated the only reason they have issued bankruptcy papers is not to get funds back but try to make us homeless as they think our landlord to cancel our tenancy agreement

Who is paying the rent? Housing benefit?

I doubt the landlord cares if the rent is getting paid.

I myself pay the rent and all the other bills its been challenging over the years we have never claimed benefits always try to pay our own way. My wife works hard as well only part time 16 hours we also have children living at home as well.

Fair enough. I doubt the landlord would be bothered about any of this if he is still getting paid the rent and you are looking after the property.

I think you are getting ahead of yourself though. Given that this has been rumbling on for years and years, I doubt that they will pay the fee required to start a bankruptcy against your wife. If they do start this process, she will be able to defend it anyway. There is no reason to simply accept a bankruptcy process.