Bankruptcy Petition - Help Needed Please

[Traderx]

I have also posted this in "AMEX"

 

Hi all,

 

New to this site and i am gleaning some useful information by surfing it however the reason i began to look for help is a Bankruptcy Petition from American Express to be hear in the high court on January XXth !!!

 

I was pretty much jsut going to let it happen, but after a few searches on what to expect i am now empowered to fight them.

 

I am a bit worried that i dont have enough time now to produce a defence.

 

Maybe someone can help me.

 

A quick background,

 

I was an investment banker (dont hold that against me) and held many cards including an Amex Platinum charge card and and Amex Gold Credit card.

 

In Nov 2002 i was invited to have a Amex Centurian (black) card and i accepted.

 

In April 2003 i was made redundant, but i was comfortable and my partner was pregnant with our second child so i chose not to return to work immediately.

 

In 2005 i split with said partner.

 

2006/2007 I spent several hundred thousand pounds trying to get access to my children. (very very long horrible story, not for on here) and was not working. After i had used all my available funds i used my credit cards to pay my legal bills and mortgage etc.

 

for a while the creditors were understanding, although my doctor signed me off work for depression and i could not claim on the PPI.

 

I am still not working and have paid nothing since late 2007 on any of my cards.

 

I have also had to move back to my parents house with my 2 children and have misplaced lots of paperwork relating to debts, and rented out my property to try and hang on to it.

 

I received a letter from the land registry informing me that 'someone' had lodged a 'thingy' as they were petitioning to make me bankrupt.

I called the land registry who gave me the courts number, i called the court who gave me the date of hearing and the applicants solicitor. I rang the solicitor and finally found out it was American Express.

 

I got some advice from National Debtline who said they should have issued a Statutory Demand. I called the solicitors back about this and they said they had and things had now progressed to the petiton. At this point the hearing was for early december. I gave the solicitors my new address and i received the petiton here in mid december with a new court date of 27th January.

 

The amount they are claiming for is £xxxxxx

I have no idea how they got to this figure the amex gold credit card had a limit of £10,000 and i only owed a max of a couple of thousand on the Centurian charge card.

 

I had heard about unenforcable credit agreement etc and emailed the solicitors on the 10th december (not the most eloquent of letters(sorry))

 

"

Dear ___

Re. American Express Services Europe Limited and ________.

Your Ref: _____________

Thank you for your letter dated 2nd December, I acknowledge safe receipt.

I understand from the letter that the hearing is scheduled to be heard on the XXth January, therefore could you please forward me the signed credit agreements for all 3 accounts that American Express are claiming against me as soon as is possible. At this stage I will accept copies.

Regards"

 

I have unfortunately received back (hoped they had lost it) copies of the 'Application Forms' that i requested (i didnt request application forms i requested the credit agreements).

 

Not sure what my next move should be - i dont really want to be bankrupt as that would stop me continuing in banking (if it picks up)

 

 

Grateful for any input/help

 

Traderx

Edited January 13, 2009 by Traderx

[Traderx]

This was the letter sent to me on 2nd december

 

Dear Sir

 

Please find enclosed a sealed Bankruptcy Pettion, Order for Substituted Service and leaflet on attending the Royal Courts of Justice, by way of service upon you. Please acknowledge safe receipt.

 

You will note that you are required to attend a hearing at the Royal Courts of Justice on 27th January 2009.

 

We would urge you to contact us immediately. If you are unable to make acceptable proposals for payment and/or fail to attend at the hearing of the Petition, a Bankruptcy Order may be made against you, in which your property and assets will be sold for the benefit of your creditors.

 

For the avoidance of doubt , our client will only consider the following payment proposals:

 

1. 50% of the amount due on the Petition plus the costs claimed on the Schedule of Costs) prior to the date of hearing in cleared funds.

2. on receipt of (1) above we shall agree to an adjournment of the Bankruptcy hearing to allow the remaining balance to be paid by 2 equal monthly instalments.

 

If you are in any doubt as to the meaning of the attached documents we suggest you seek independant legal advice immediately.

 

Yours Faithfully

 

etc etc

[42man]

In order to get the bankruptcy petition dismissed, you will need to substantially dispute the debt or if there is a abuse of the process, or reduce the debts to below £750, my personal view is that nobody should be forced into bankruptcy, not least by unsecured debts...

 

In the first instance, I would send a SAR request off to AMEX...this will cost you £10 but as you can see from the request below, you can see what is being asked for.

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, 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. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any 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 ORIGINAL CREDITOR.

4. 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.

5. 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).

6. Details of any collection charges 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.

7. 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.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. 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.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

 

 

sign your name and put crosses through it so it can't be 'lifted'

 

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

 

Please do have a read though here, this will give you some good pointers..

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/154693-1st-credit-connaught-bankruptcy.html

 

Did you never see a statutory demand ?

 

I would also recommend either a visit to the court as you are the 'litigant in person' and ask that you get all the files to the case so far. You could do this by calling them too.

 

May I ask what you have received so far was it just the petition or are there any sworn affadavits from process servers ?

 

How long have you had the accounts ?

 

Are all the application forms there ?

[42man]

Your defence and affadavit needs to be in court 8 days before the hearing....and a copy sent to the opposing solicitors.

 

Have you received any default notices for the accounts ?

 

Any/many excessive charges on the accounts ?

 

Is this Amex directly ? or has it been assigned to a debt collection agency ? sols are StDr or Mish De ?

[Traderx]

Thank you for your quick response.

 

In regard to the Stautory Demand. I received a call from a neighnour at my old address saying there wasa girl (more or less a schoolgirl) with a letter for me. i went round and got it but didnt open it as I assumed (stupidly now) that it was just from a DCA.

 

I shall contact the court to get the papers. I asume they will have lodged a bundle?

 

On one of the document it says "upon reading the Witness Statement of XXXX XXXXX process server of TRemark asscoiates.................shall be deemed good and sufficient service of the said pettion on th 7th day after posting as aforesaid"

 

I have had the Gold Credit Card since 2000

I had a platinum Charge card from 1998 and it was upgraded to the centurian card in 2002 (upon invitation)

 

 

 

As i mentioned before i asked for the CCA and they responded by sending me the application form i filled out for the Gold Credit Card (small print illegible on the copy the sent)

And the invitation to Centurian.

 

Not my original application for the platinum card.

 

If i send the SARequest in now the court hearing is before the 40 days allowed for them to respond !?!?!?!?!?!?!?

 

 

Also interestingly (but maybe not helpful) is the application form has a space for "Authorised American Express Signature" but it is unsigned.

There is however a stamp 'approved' with a signature squeezed into it.

[Traderx]

Your defence and affadavit needs to be in court 8 days before the hearing....and a copy sent to the opposing solicitors.

 

Have you received any default notices for the accounts ?

 

Any/many excessive charges on the accounts ?

 

Is this Amex directly ? or has it been assigned to a debt collection agency ? sols are StDr or Mish De ?

 

 

Honestly, I dont know about default notices. At the time i was more interested in my residency battle for my children.

 

And thus again i dont know about the charges but judging by the amount they are claiming for there are a lot of charges!

 

StDr

Edited January 12, 2009 by Traderx
not sure if i can put Stevens Drake

[Traderx]

reading back - sorry about typing and spelling errors

[42man]

OK, if you can prove that you resided at another address, then it would be deemed that the statutory demand would not have been served in my opinion.

[42man]

Are you able to provide proof that you lived at another address at the time the statutory demand was 'served' at the old address ? which effectively didn't give you the chance to defend at this stage...

[Viscount Stair]

I am not an expert at all in this area and the advice is not based on any direct practical experience but I will try to help as much as I can.

 

Can I suggest that the first priority is to try to get the hearing of the petition adjourned? The court office should be able to advise on local arrangements for you to do that.

 

There are some arcane arguments that you could be make to say that the stat demand and the petition were not properly served but, now you do know about the petition, the service will become effective by the back door. What was said in the affidavit about reading this meaning it's properly served may not be right but it seems to be correct.

 

However, the fact that service was not properly carried out works in your favour in a few ways.

 

First, it's one of the arguments you will use to try and get an adjournment of the petition.

 

Secondly, if you apply to get the stat demand set aside, you are now having to do that out of time and you have to explain why you did not apply within the original 18 day period. Not knowing about the stat demand because it was not served on you but a neighbour at an old address is a good reason for not having applied in time.

 

Thirdly, don't overdo it but it can be used to blacken Amex and their munchkins and start the process of casting doubt on other things they are saying. Once you see the affidavits used to get the order for substituted service, check if they have told any untruths or even if they have just been economical with the truth.

 

I agree that you should make the SAR and I think that more needs to be made of the fact that the time limit in the Data Protection Act is not 40 days - an SAR must be met promptly and the 40 day limit is only an absolute maximum.

 

But, again, use it to your advantage in getting an adjournment of the petition. You have asked for information you need in order even to assess whether or not the stat demand can be set aside.

 

Can I just check that this is a charge card and not a credit card? If it is, then some of the arguments will be different.

 

That's all I can do right now but I hope it is some help and I will try and stay involved.

[Traderx]

Are you able to provide proof that you lived at another address at the time the statutory demand was 'served' at the old address ? which effectively didn't give you the chance to defend at this stage...

 

 

The property is/was rented out, and i have the tenancy agreement to prove.

Would that be good enough!

[Traderx]

I agree the first thing i should do now i intend to fight is get an adjournment.

 

I shall contact the court this morning.

 

Viscount Stair - The petition is for both charge card and credit card - they have amalgamated the debt into one amount.

[Traderx]

There is also in the papers i have here an 'Order for time Extension of a Bankruptcy Petition'

 

Ofcourse this is their request for an extension BUT would it affect my chances of getting an extension?

 

OR is an adjournment different from a time extension?

[42man]

Traderx...be advised if you go for an adjournment, the judge might still award costs to the other side (from that hearing)....however, you will need to provide a witness statement saying that you didn't live at the address when the statutory demand was issued (and provide proof that you lived at another address) and you have been unable to set aside the statutory demand.....If you had a look through the thread I gave above there are obviously other issues here. (agreements, excessive charges, default notices etc)

[Traderx]

BTW i have sent the SAR request first thing this morning to ST DR

[Traderx]

Traderx...be advised if you go for an adjournment, the judge might still award costs to the other side (from that hearing)....however, you will need to provide a witness statement saying that you didn't live at the address when the statutory demand was issued (and provide proof that you lived at another address) and you have been unable to set aside the statutory demand.....If you had a look through the thread I gave above there are obviously other issues here. (agreements, excessive charges, default notices etc)

 

 

Can i realistically get a defence together with only xx days until the hearing?

 

Agreements, excessive charges and default notices i will only know when I have received Subject Access Request back. Unless they are in the court bundle which i shall try to get today.

Edited January 13, 2009 by Traderx

[Traderx]

also i can prove i didnt live at the address but NOT where I am living.

[Viscount Stair]

I don't think the fact that they have already had an extension should prevent you from getting an adjournment. If anything, it should count in your favour.

 

What is the gist of the order they got?

 

OK, you need to separate out as best you can the charge card and the credit card because the arguments for the two sorts of card are different.

 

As far as I know, the charge card debtis going to be more difficult to get knocked out completely. I am really not an expert on them, other than to know that they are different. However, there are still presumably charges that can be attacked.

 

As for the credit card debt:

 

1. Try to scan and post the application forms (remember to blank out the personal details) so we can have a look at them and try to pick them apart.

 

2. If you got any Default Notices, dig them out and do the same with them. Amex seem to have trouble getting Default Notices right and that is a good second line of defence - faulty DNs are not a complete defence because some arrears remain outstanding but every little helps.

 

The petition should set out the interest and charges but you should also get full details from the SAR, which is why you need an adjournment. The charges can be picked at as well.

 

Finally, the PPI can have a go had at it too.

[42man]

Argh you need to send the Subject Access request directly to AMEX !!! not their solicitors....

[Viscount Stair]

Traderx...be advised if you go for an adjournment, the judge might still award costs to the other side (from that hearing)....however, you will need to provide a witness statement saying that you didn't live at the address when the statutory demand was issued (and provide proof that you lived at another address) and you have been unable to set aside the statutory demand.....If you had a look through the thread I gave above there are obviously other issues here. (agreements, excessive charges, default notices etc)

Point taken - there is that risk but I think that it is a risk that has to be taken.

 

If the adjournment is sought now (a fortnight before the hearing) and enough doubt can be cast on the service process, there is a good chance that costs will not be awarded.

 

Even if they are, it is more important to have the time for a proper defence than to worry about the costs of a hearing and try to defend a bankruptcy petition without having had enough time to prepare.

[Viscount Stair]

Argh you need to send the Subject Access request directly to AMEX !!! not their solicitors....

All the more reason to get an adjournment asap. At the moment we are all dashing around with no time to think straight.

[42man]

Trader be advised that Amex and their sols do trawl these threads....be cautious over what you say....!! there is one guest watching already !!

[Traderx]

rats - i did send it to AMEX C/O StDr

 

should i send another?

[Traderx]

Argh you need to send the Subject Access request directly to AMEX !!! not their solicitors....

 

Rats - I sent to 'AMEX' C/O St Dr (cheque was payable to Amex)

 

 

should i send another?

[42man]

I would send one to AMEX directly....Data Compliance Manager