cecil, Your argument here is rather confusing. What do you mean by ''they must obtain the SD'' ? One doesn't ''obtain'' a SD, one prints it off from the internet or otherwise and then serves it on the debtor. Or is that what you meant? In which case you are wrong on this point. Also what do you mean by ''getting the SD means the court accepts and agrees the debt as described on the SD exists'' ? What you are describing here is a bankruptcy petition. From what you have written, it appears that you have misunderstood the purpose of a SD. A statutory demand is a demand made under a statute - hence the name statutory demand - that a debtor pay a debt or the creditor will serve a bankruptcy petition on them. If the debtor does not make an application to the court to have this set aside or tries and fails to have it set aside then the creditor can serve them with a bankruptcy petition.

There was a very interesting programme on BBC4 last night about the working of the Supreme Court. It was really interesting to see things from the other side as it were. I have noticed that the higher up you go the better the quality of judges is generally. I believe the programme is available on the BBC iplayer. There was an interesting comment from Lord Phillips, the President of the Supreme Court, in the programme:- 'Banking charges are a good example of a case which was potentially very puzzling for the public. The public might well have understood that the real issue was whether bank charges were fair or not. But that wasn't what we had to decide. We had to decide whether the OFT themselves could look into that question and we decided, looking at the statute that set them up, that, no, they couldn't' He then went on to say:- 'I think, personally, I would have been quite in favour of the OFT looking into bank charges. It's a good example of a case where, if I had had complete freedom to decide whatever I wanted, I might well have said yes, you can have a look at them. But we had to look at the statute and we decided that it simply wasn't within their terms of reference.' I would suggest that this does back up what many people have been saying about using section 5 of the UTCCR and also sections 140A and 140B of the CCA. I noticed that the Govan Law Centre - they're a Scottish charity that do a lot of work representing people in extreme circumstances and homelessness and eviction etc - have recently been granted full legal aid to bring two cases in Scotland over bank penalty charges:- http://govanlc.blogspot.com/2011/03/unfair-bank-charges-update-from-govan.html I would suggest that, given the importance of this matter, this will end up in the Supreme Court eventually. Which will result in an interesting case, given Lord Phillips' comments above. The Govan law centre have also produced amended complaint letters to send to the banks here:- http://govanlc.blogspot.com/2010/01/unfair-bank-charges-free-help-to-amend.html http://www.govanlc.com/AGOC-BC-110110.htm and amended POCs here:- http://govanlc.blogspot.com/p/bank-charges.html Please be aware that this is based on Scottish legal procedure and will need to be amended accordingly for England. Perhaps there is light at the end of the tunnel after all.

What they have sent you is fine. As dx100 says, if you opened these accounts in the last few years online then there won't be anything with your signature on. I would suggest that you will only have much of a chance if you opened these accounts more than 10 years ago and it WASN'T done online.

Could you please tell us what the Particulars of Claim actually said? You made a vague reference to it in one of the previous posts but it really would help to know what has been claimed. The reason for this is that your defence has to relate to what is actually claimed against you. Also, please be aware that First Direct is actually owned by HSBC so that is probably why they make reference to a HSBC account

As undercover-elsa says, unless you show that those terms were not the then current terms I would suggest that is an enforceable agreement. I would suggest one avenue would be if you could show that the APR at the time was different to that showing on the t and c's as in the Harrison v Link Financial case.

dcabuster, In your first post you told us that they had sent you a SD. So you are now saying that they haven't?

As 42man says, have a read of some other threads to see how things should be done. To be honest, I would suggest that these are not grounds for having it set aside. There is no requirement in the Insolvency Rules for the Statutory Demand to show a particular court. Also, it doesn't matter what date is on the SD the important date is the date that it came into your hands, so it is the date that it was served on you. As part of your application, rule 6.4 says that you need to:- The grounds you have are in rule 6.5 of the Insolvency Rules:- Of all the things you have said this is, I would suggest, the only real ground that you have mentioned Bankruptcy proceedings are covered by the Insolvency Rules not, I believe, the CPR Unfortunately, this won't stop anything as this is not a defence Sorry if I sound very negative but I really do suggest that you do a lot of reading very quickly.

However, a very important question hasn't been asked - when did you open this account? Was it before or after 5th April 2007?

If they go to court to enforce it then it will be a bankruptcy petition. You will then be too late to try and get it set aside as there is plenty of case law that if you do not get a SD set aside or you try and fail, then you cannot raise any issues at the bankruptcy petition to defend yourself. What you need to do is to get the SD set aside - YOU need to do this. If you wait until they serve a bankruptcy petition on you then it will be too late.

You are correct about the CO, this is a ground for having the SD set aside:- I would suggest that, as long as you can demonstrate that there is a CO on your property, then it will be an easy case to get the SD set aside. Unfortunately, you can't 'sting' them. However, if you do want to get back at them then I would suggest that the way to do it is to get the SD set aside and claim your costs - you could probably claim around 300 quid. EDIT Just a small point, but Pinnacle are not a DCA, it is Apex that are the DCA. Pinnacle are now the creditor.

Good grief, where to start with this post. I do have a number of problems with what cecil says. To be fair, this is absolutely correct, as I said above, if this is the case, then you're home and dry. What he means by this is that a few people - definitely not 'most' - on this site have advanced this argument. However, I would point out that this has never been successfully argued in court and certainly all the cae law disagrees with what cecil claims. Have a read of these threads for examples of what I say:- http://www.consumeractiongroup.co.uk...=1#post3313813 http://www.consumeractiongroup.co.uk...=1#post3345492 http://www.consumeractiongroup.co.uk/forum/showthread.php?276677-Reissue-of-court-proceedings&p=3358263&viewfull=1#post3358263 I really would suggest that, given these above examples, following Cecil's advice could be quite dangerous. I would further suggest that it is unlikely that he/she has ever seen the inside of a court and has certainly never tried to advance these arguments himself in court. You must be aware that you get a number of people here that are really gung ho in pushing people into situations that they really should reflect on more deeply before pursuing. Oh no they can't. The CCA is quite clear on this. And before you try to say taht a debtor can accept the termination of a contract have a read of the first link I gave above where the OP in fact DID accept the termination and then got really shafted as a result of doing that. Also, the person in the third link above also got shafted But have a read of your terms and conditions. They all say that if the agreement ends then you still have to pay back the full amount that is owed regardless. Also, if you want to talk about repudiation then, I would suggest - as do others such as pt2537, that in fact it is the debtor that first repudiates the contract by not making the contractual payments on time

I'll put something together for you to have a look at tomorrow. EDIT harresed senior beat me to it. Wht he says is basically the essence of what the letter needs to say

This is just my personal take on things. You must be aware that Capquest is a debt purchaser. They purchase debts from other creditors and so, while your client may well say that he has no knowledge of any debt to Capquest, he/she may well owe a debt to the creditor that Capquest purchased it from. So, firstly, I would suggest that you question your client a bit further about any possible outstanding debts that he/she has. As the sahdow stated above, and if you read the link that he gave you that gives further arguments, I would suggest that if the SD was sent by ordinary post then they are not serious about pursuing the matter. There are instances on this site of people being served personally and then being served a bankruptcy petition. In my personal case they sent a SD by recorded delivery so I knew they were serious and they did actually turn up to oppose my set aside application - however I was successful. But this wasn't a consumer credit debt so it isn't directly applicable to this case. However, on the basis that they are probably not serious about this, this does leave your client open to another problem if you do respond to this and make a set aside application. If, at any point in the future, they attempt to make a claim in the county court against your client then, if he makes no written response to them at any time, he has an absolute defence under the Law of Property Act 1925 that the debt has not been lawfully assigned and so Capquest have no standing before the court. However if you do get thsi set aside then, depending on how the SD was worded, your client will not be able to sensibly raise this as a defence in any future proceedings as a SD is capable, depending how it is worded, of providing sufficient notice of the assignment of a debt..

Just replying based on your request on the other thread. What grounds have you put forward to have the CCJ set aside and on what basis have you said that you have a genuine prospect of success?

So you have already put in a defence before you have received any information from the claimant? To be honest that is a rather dangerous thing to do. Do you mind me asking what you put in as your defence? What you should just have done is to state theat you will be defending the full amount and then wait until you have received the documents from the other side before entering a defence.

It may be that they are not aware of the DRO. But if, as you say, they were included in a DRO in May 2009 then as of May 2010 this debt was wrtten off and so deos not exist any more. I suggest that you tell them this in writing - send it recorded delivery - and then sit back and make a record of all the letters and phone calls that they make. This leaves them open to a claim of harrasement from you, which, since you no longer owe the debt and they are aware of that following your recorded delivery letter leaves them wide open to a claim of damages from you in the same way as Ferguson v British Gas

Pursuers is a term used in the Scottish legal system - similar to claimant in the English system. Do you live in Scotland? The laws on bankruptcy and debts being statute barred are different in SCotland to England

This is absolutely vital to your position. As long as that application form does not contain the prescribed terms under Schedule 6 as to repayment, credit limit and rate of interest then I would suggest that you are home and dry. I would totally agree with you on that I really would suggest that would be quite dangerous to take them to court. However, if you do try and do this then you would need to show that the terms and conditions did not allow them to share your data with a third party

Yes - have a read or the terms and conditions for the co-op credit card:- 12.4 When the agreement ends we will continue to apply interest until you have paid everything you owe under the agreement. and you still have to pay the money back:- 13.4 If we do withdraw any Card or close your account in any of the circumstances referred to above you must nevertheless continue to comply with this agreement until any outstanding balance on your account has been repaid. Yes, the ICO has decided that they can do this. Yes, again have a read of the terms and conditions. No, it wasn't terminated the first time as they hadn't served a proper notice. I would suggest that it was your gouding of them that led to them doing it correctly.

Here you go:- http://www.consumeractiongroup.co.uk/forum/showthread.php?257032-RBS-Mint-Loan-Court-Action-Started-amp-Dodgy-DN-issues&p=3313813&viewfull=1#post3313813 It has also happened here as well:- http://www.consumeractiongroup.co.uk/forum/showthread.php?291988-Court-Case-pending-and-help-required-reviewing-position...&p=3345492&viewfull=1#post3345492 peterbard, who just posted above, commented on the first link as follows:- The link to his comment is here:- http://www.consumeractiongroup.co.uk/forum/showthread.php?280020-Contracts-Termination-Repudiation-and-Rescission&p=3338072&viewfull=1#post3338072

I would disagree with teaboy on this point. Have aread of this thread for arguments for and against ignoring a SD:- http://www.consumeractiongroup.co.uk/forum/showthread.php?162131-Statutory-Demands-and-Service-By-Post

A witness statement is your statement of what has happened, it is not the place to be putting lots of legal argument. That should be put in your skeleton argument.

In my case I had a SD sent by recorded delivery so I knew they were serious and they also turned up to oppose my application to get it set aside.

As cerberus says, that is the correct place. Basically, for people who live outside of London they go their nearest county court that deals with bankruptcies - not all county courts do. But people in London need to go to the High Court. However, having said that, the rules are just about to change as of 6th April and you will need to go the Central London County Court after that date. As the shadow says above, there are arguments on both sides as to whether you should get this set aside or merely ignore it, especially as it was sent by ordinary post and so they cannot sensibly provide an affadavit of service. What you say about the CCA request is correct however it is important to ensure that the payment is made payable to the OC and not to the DCA. This is about the changes from the High COurt to the Central London County Court:- Notification of changes to the London Bankruptcy Jurisdiction With effect from 6 April 2011 the Insolvency Rules will be amended by The Insolvency (Amendment) Rules 2011 (SI 2011/785) to require lower value bankruptcy cases allocated to the London insolvency district to be presented to and heard by the Central London County Court rather than the High Court of Justice. The London Insolvency District (Central London County Court) Order 2011 (SI 2011/761) will from 6 April 2011 give jurisdiction to the Central London County Court for personal insolvency proceedings. Generally speaking, the proceedings allocated to the London insolvency district which will be presented to and dealt with by the Central London County Court are:- Creditor petition bankruptcies (including those presented by Government Departments) where the petition debt is less than £50,000; and Debtor petition bankruptcies where the unsecured liabilities set out in the statement of affairs attached to the petition are less than £100,000. There are cases where, notwithstanding these monetary limits, the proceedings will continue to be presented in the High Court:- where the bankruptcy petition is being presented against a member of a partnership being wound up by the High Court in London; where the debtor is not resident in England and Wales and has not carried on business or resided in England and Wales in the 6 months before the presentation of the petition; and where the petitioner is unable to determine the debtor’s place of residence and place of business. In the short-term, debtors and creditors presenting bankruptcy petitions will see no major procedural change because all bankruptcy petitions will continue to be administered by officials in the Thomas More Building at the Royal Courts of Justice. Support services will continue to be available for debtors in the Thomas More Building. Later in the year it is proposed that bankruptcy petitions issued in the High Court will be dealt with in a new High Court building (the Rolls Building) which is due to open in October 2011.

toymaker, People have been telling you for a long time now that you are totally wrong in your opinion. Do you just carry on to try and get a response from people? Also, as I have said a number of times, just tell us the date that you are in court and I will come along and see how you get on with this wonderful defence of yours. But both of us know that you never will let anyone know when your court case is as you know that you have no real prospect of success.