Hello,

This is the first time I have posted on here - so far I have found my answers by reading the amazing amount of info posted by others and Thank You to all of you for that.

Back in June 08 my OH and I reached a stage where we just couldn't afford to keep on paying the interest on our credit cards - we just ran out of funds - and at the time neither of us were working - so we approached the CCCS and they advised us to offer to pay £1 per month to each of the creditors.

We did this and paid everyone £1 per month until September but by then we were receiving so many threatening letters and nasty phone calls it was beginning to affect our nerves and general well-being. I ended up swearing at one of the debt collectors as she was so nasty, and then burst into tears before a friend took the 'phone off me and told her to go away.

To cut a long story as short as I can, we then decided to look on the web for more advice and I think it was around then that we discovered this Forum. We found a post written by an ex-barclaycard chap who wrote a very long piece about Mercers (who were chasing us mercilessly) and we both thought it seemed like good advice so we stopped all contact with the DCAs and stopped paying. Then, in January I saw a google ad about Credit Compensation and read about the 'unenforceable debts' which we also found very interesting so came back to the Forum and read up about this some more.

To date, we have actually done nothing. Now, I'm not sure if that was the right thing to do but it has made our lives a little more bearable.

Our situation is this:

This morning, Saturday, the doorbell went and the postman asked me to sign for a delivery which, when I opened it, was a Statutory Demand from American Express that has been issued by Westminster Solicitors - it came with a letter asking me to acknowledge receipt. On the SD there is what looks like a digital signature for a Tony Sutton - Solicitor.

I am confused because prior to this, I have received -

Statement of Account from Amex in August 08 showing a balance of £4481.63

19/08/08 a Notice of Cancellation

20/08/08 a letter from Newman DCA asking for £5198.69

24/10/08 a letter from United Creditors Alliance asking for £5311.92

4/12/08 a letter from AIC stating the debt has been assigned to them for £4578.24

24/12/08 a letter from Westminsters Solicitors saying they have been instructed by RMA to issue legal proceedings for £5411.66

06/02/09 another letter from United Creditors again asking for £5463.71 and saying they are obliged to submit a detailed pre-litigation report.

14/03/09 received SD from Westminster Solicitors by recorded delivery for £5463.71

I have read up as much as I can on here but I'm now more confused and totally unsure about the following:

Is this SD correctly served if sent by Recorded Delivery

Should I now start requesting SAR from Amex

Please can someone give me any advice?

Thank you.

Liz:confused:

Just bumping up for you - have also alerted site team so you get some urgent advice.

Thanks Clemma, but I thought with it being Saturday I wouldn't expect too much response - thought more peeps would be reading through on a Sunday.

Didn't sleep too well last night as all sorts of horrible dreams about losing my home but am determined today to keep it in the day.

Thanks again.

:-?:-?Is there a reason why no-one has responded? Or is it just because it's the weekend?

Can someone please help me?

Hi, Don't worry to much.

You have 18 days to defend the set aside and you will receive some excellent help way before that.

This post refers to Capquest, but will also help you

Firstly you need to send the CCA request off to CQ....

Then you need to fill out forms 6.4 (set aside form) and 6.5 (affadavit).....ring your local county court to check if they handle bankruptcies, if they don't they should be able to tell you the nearest court that does.

By the way CQ never turn up in court.....so you can make a claim for costs too...

You have got 18 days from the date you received the demand to submit 6.4 and 6.5 to the courts, once you have completed them you need to get the affadavit sworn in, this is free at local county courts, £5 at a solicitors, and £12 at central London courts.....

You can find the forms here - Getting Statutory Demand Set Aside**WON IN COURT**

You basically need to totally dispute the debt whether it be because of an abuse of the Insolvency service (they haven't 'served' anything on you)...

Is there a name and number on the demand ? - highly likely they won't put you through - read this bit - statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of The insolvency Rules 1986.

This means that if the statutory demand doesn't give the name of a person you can speak to then it is not valid. If you try to contact the named person and they won’t put you through then it is also invalid

You can dispute it due to non production of the agreement which must have the prescribed terms and be executed, non production of default notices which must be in the prescribed form, no notices of assignment, no statements for the duration of the agreement (excessive charges)....

Have a read through these....

CCA 1st Credit / Connaught **SET ASIDE WITH COSTS**

Statutory Demand from CapQuest: **WON** + £425 COSTS

OMG Connaught/First credit SD**WON-Setaside plus costs**

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

Help pls with process: SD-Set aside hearing next week - **WON** PLUS COSTS AWARDED

Me v 1st Credit (Stat Demand)

Hope this is of some help

Jogs

Thank you very havinastella - I'll read through the bits you've given me and then decide what to do next.

I don't want to cave in and contact the Credit card companies because we were paying so much in interest every month for over three years and I feel in my heart that they have 'technically' already been paid back any monies we used plus more... and as I now understand it, half of these credit agreements are wrongly issued anyway.

Do you think we should just deal with each one as it gets heavy or do you think we should start the process of disputing each one? We're just not sure what to do for the best though to date have found ignoring them to be the least stressful route.

Thanks again for your help.

Please can somebody answer me?

I don't understand whether the SD is 'served' or not.

It was sent by Recorded Delivery but prior to this I have received letters from 5 or 6 different agencies all quoting different amounts!

Thank you

If the SD was served by Special Delivery (as per thread title) then it is properly served. If it is served by Recorded Delivery (as per first post) - and delivery was recorded - then it would be construed as being a valid service.

Was it Special or Recorded? In either case it is valid.

Thank you - it was second class recorded so I'll take it as being properly served.

So if I am right from everything I have read on here, I cannot have it set aside for that reason, but I do not appear to have ever received from Amex a Default Notice but I did receive a letter stating they had cancelled the agreement and another one the next day from AIC saying the debt had been assigned to them, however, the SD is from AMex... Can I get the SD set aside because there is no Default Notice??

I'm very confused and would really appreciate some step by step advice on this?

FDPM have a dig through here. - DCA Legal Successes - The Consumer Forums ...have you requested the agreements ? how old are the accounts ? Is this debt all credit card ? or is it charge card ?

Hi 42man,

I've just been reading through your help to Timewitch -

The debt is all credit card. I originally offered to pay £1 per month as that's all could afford but the calls from all the DCAs were getting so nasty I stopped and just ignored them all (probably stupid?) but it helped me as I was becoming so stressed by it all.

I am going to send off for the agreements today by recorded delivery as you suggested in the other thread - I took out the card in late 90s or early 00s - can't quite remember.

Thank you.

OK CCA request is a good first step....you've got to get your set aside papers in within 18 days of the delivery of the demand....you need to substantially dispute the debt...whether it be because of one or a combination of.

No agreements with the prescribed terms, and executed

No notice of assignment (if of course the debt has been assigned to a debt collection agency)

No valid default notices (which have to be in the prescribed manner)

No statements for the duration of the agreement (excessive charges)

A SAR is sent to the original creditor (don't forget to include £10 in postal orders) and send recorded...send it to the Data Compliance Manager at their head office....is the debt collection agency the ones who are taking you to court or AMEX directly themselves ? If it is the DCA taking you to court then send the CCA requests to them....

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 but put crosses through it so it can't be 'lifted'

right - off to PO to send letter by Recorded Delivery.

Might need more help in filling out Affidavit but have time yet so will do more reading and research on here in meantime.

Thank you so much all of you for your help and advice and amazing knowledge. I hope I can learn enough to be able to help others later.

If you need any help please shout...

Hi

Received the Statutory Demand on 14th March so have to have the two forms in by Tuesday to get it Set Aside -

Taking the advice I received on here, I sent off for the Original Agreement from Amex which arrived today.

Have received a photocopy of my original application dated 02/06/04 and signed by me (and not by them) and they have also sent me a Credit Card Agreement Regulated by the CCA 1974 which has no signatures on, no dates and no evidence that it relates particularly to my agreement. Does this mean I can ask for my SD to be set aside because they haven't conformed??

Please can anyone give me some advice - I'm not sleeping because I really am not sure what to write on the forms... in particular I need to know what I can put on the Affidavit form.

Thank you

Liz

Hi me again,

Also, I have never received a Default Notice from Amex so can I use this to get the SD set aside?

Help?

bump

Hi FDPM

Well you've done the right thing applying for the CCA - could you post it up (minus personal details) so CAGers can advise you as to whether it is enforceable? If it isn't you can put the account in dispute (letter to Amex) & that would be your main defence for the set aside on the SD

How did the Stat. demand arrive - was it 1st, 2nd, Rec. Del, Hand Del?

And did you keep the envelope?

I assume you are in arrears on this account & that you haven't got a ccj against you on it. You say you never received receive a default notice; did you get a letter before action?

Have you ever applied for a refund of charges against this account (over limits, late payments etc)? If not, I suggest you apply for a SAR from Amex immediately too & get busy!

The template for a SAR is here:

http://www.consumerforums.com/resources/templates-library/48-bank-templates/110--data-protection-act-1998-subject-access-request-.html

Hi foolishgirl

Thank you for your advice - I haven't posted the CCA because the writing on it is so small you need a magnifying glass to read it. I'm not sure how I could possibly get it on here.

The SD arrived via recorded delivery and I signed for it as I had no idea... I'll be more careful in future.

I am in arrears - I have definitely never had a Default Notice - I have had loads of letters from different DCAs and solicitors and such - all demanding different amounts but no DN.

I haven't requested anything yet from them apart from the CCA because I have been ignoring them. I am now requesting CCAs from all of the credit cards I am in arrears with to see if they are enforceable or not.

I was going to use the defence of:

No Default Notice received,

Missing prescribed terms from the CCA - account in dispute

Not able to contact the named person on the SD - he is never available

I'm hoping that 42Man will be on the boards tomorrow as he has so far been giving me lots of advice - I'm not sure how you 'shout' when you need more help but I'm hoping someone will point me in the right direction.

Thanks

FDPM, you seem to have asked for help on this on 2 x separate threads. So as to avoid confusion I am going to ask a mod to merge the threads. I will put any ideas on your other thread & ask 42man to look in for you.

http://www.consumeractiongroup.co.uk/forum/legal-issues/189218-statutory-demand-recd-special.html

Transferred here from your other thread lizwold.

1. Are the forms you have the 6.4 (set aside) & 6.5 (affadavit)?

2. Form 6.5 is the one where you have to give reasons for the set aside.

This would include a CCA being provided that was illegible (print too small) & didn't include the prescribed terms, also lack of default notice & no statements to assess unlawful charges so I think you need to put something like this at C2 (with thanks to a post from yonks ago by 42man)

So on Form 6.4:

1. I do not admit the debt because the creditor has not provided any evidence of his claim as required by the Consumer Credit Act and is prevented from enforcing any claim until he does by the provisions of that Act.

On xxxx I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section S78 of the Consumer Credit Act 1974.

On xxxx I received a document that the claimant claims is an enforceable credit agreement issued under the above act. However it does not contain the prescribed terms as defined by this act & is therefore unenforceable under S127 of the same act.

You will no doubt be aware of the cases of London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956, Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul), Dimond v. Lovell - [2000] Q.B. 216, Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299,McGinn and Grange Wood securities [2002] EWCA Civ 522, Wilson v Robertson’s (London) Ltd [2005] EWHC 1425 (Ch), these cases support the view that without a copy of the credit agreement containing the prescribed terms as per schedule 6 column 2 of the Consumer Credit Agreements Regulations 1983 (SI1983 / 1553) bearing the signature of the debtor as per S61 Consumer Credit Act 1974 the agreement is rendered unenforceable even by a court.

I have copies of all the cases I have referred to and also hold copies of the Regulations as well, I gracefully request that notice is taken of the case authorities I cited as I cannot see how a judge in a county court over rule the decisions of the Court of Appeal and the House of Lords which are clearly relevant in this case

I quote from Para 28,29,30,73 of Lord Nichols of Birkenhead’s judgment in Wilson and FCT

28……………..Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

30. These restrictions on enforcement of a regulated agreement cannot be side-stepped by recourse to a pledge or other form of security furnished in support of the debtor's obligations under the agreement.

72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security, which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

2. I have never received a Statutory Notice of Default. It is denied that any such Notice was received and I put the Claimant to strict proof that such documentation was served.

Notwithstanding I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

3. I believe that the claimant may have been applied charges to the account which would be considered unfair under Schedule 2(e) of the Unfair Terms in Consumer Contracts Regulations 1999, which state that ‘a term is unfair if it requires any consumer who fails to fulfil his/her obligation to pay a disproportionate high sum in compensation. In this case, the claimant has charged an amount that is not proportionate to the amount of any payment not made. No statements have as yet been provided to me by the claimant so I am unable at this date to ascertain the exact sum of these charges.

You then have to sign at the bottom in front of a solicitor (who will charge you) or the court clerk (no fee, just go along to the court in person)

Suggest you amend to suit your own circumstances & take other ideas from the links to set asides in previous posts. I've asked 42man to take a look so he may have some useful advice to add & suggest you wait for his input before submitting to court.

Foolishgirl - you not foolish.... no way!! Thank you so much - That is so very helpful. I have read and read until my brain hurts - all the posts on here to do with SD and Amex and after a while it all seems so confusing.

Thank you for giving me it in a way I can just copy and understand.

I've got until Tuesday so I'm going to wait until Tuesday morning to fill it all in and then I'm going to drive over to the court and do the stuff there.

I think Amex/Westminsters are so sneaky and they definitely have never sent me a Default Notice - just a Notice of Cancellation and then several letters from different agencies. Some of whom state the debt has been assigned, which I thought meant they had bought it? So I am a bit confused as to who I really owe the money to. I stopped paying because of financial difficulties and when I tried to sort things with them I got so many nasty, really nasty calls that I decided to stop all contact and wait for them to sue me... the SD came as a bit of a surprise.

Anyhow, Thanks again, I'm gonna hold on til Tuesday just in case anyone else adds anything else, but I'm def gonna use your script.

FDPM

I think Amex/Westminsters are so sneaky and they definitely have never sent me a Default Notice - just a Notice of Cancellation and then several letters from different agencies. Some of whom state the debt has been assigned, which I thought meant they had bought it?

Didn't realise the debt might have been assigned liz. In which case you also need to add a bit about asking for a NOA & the DEED 'cos that's the bit that tells you (& the DJ) whether they actually have the legal entitlement to collect the debt.

Who was listed in the SD as the claimant - Amex, Westminsters, Joe bloggs?

Do you know who the payments have been going to - Amex or a DCA? CCCS will tell you if you don't know.