Hi, Following on from the above I was made bankrupt in 2009 discharged in 2010 Made PPI claim to AAAAA in 2012 to bank they partially upheld but said i should have had a single payment policy, I banked their partial repayment and complained to Ombudsman about the single payment. Ombudsman upheld my claim and wrote to bank. Bank is now saying they have to pay direct to Official Receiver unless I get a letter from OR saying they have no interest....... OR communication:- ME I have recently been offered a refund for PPI payments made on a bank loan dating back to 2002, the loan had been settled and did not form part of my bankruptcy. I require a letter of authority from you for them to release the funds to me. I understand that you may feel the funds should form part of my assets as it pre-dates the bankruptcy however I believe that as the ppi payments were made in error and the Financial Ombudsman has ordered the bank to put me back into the financial position I would have been at the time of the loan had ppi not been taken out this is not the same as at the time of my bankruptcy. However if it is judged that the refund falls as part of my estate then as I was an involuntary bankrupt and the complainant made me bankrupt for a sum less than the refund of PPI I would like to revisit the bankruptcy and have it overturned. I am also recovering from a second heart failure and had an aortic valve transplant and replacement aorta in July 2014 and the funds will make a material improvement to my living conditions and health prospects. THEM Thank you for your email regarding ppi in relation to your bankruptcy. The bank in question will have requested a letter of authority from the Official Receiver as they will be aware of the legal side of things concerning the ppi with you previously being declared bankrupt. They have acted correctly in doing so. You have correctly stated that the funds (from any upheld ppi claim) form part of the assets in your bankruptcy as long as a ppi was started prior to your bankruptcy date. The Financial Ombudsman's ruling is also correct but their decision and statement is based on the complaint that has been lodged being between you and the bank. Once the decision is made there is bankruptcy to factor in to where the compensation should be paid and they will also have been aware of this had that question been posed. I have checked your bankruptcy details and note that BBBBBB have claimed in your bankruptcy for the sum of £17,000. I note you contacted the Insolvency Service yesterday and stated that BBBBBB made you bankrupt for £1400 which if so is less than the proposed compensation being offered from the ppi complaint. From the figures above you can understand my confusion therefore as this isn't what is shown in your bankruptcy records. In addition to the BBBBBB debt, the total debt owed to your creditors is more which would obviously bring into question your request to have your bankruptcy overturned. I fully appreciate the scale and severity of what you have been through health wise this year and empathise with your situation. However as explained by my colleague yesterday and me today, I am unable to issue a letter of authority to release any ppi funds to you as per your initial email request. The ppi award is an asset in your bankruptcy and belongs to the Official Receiver. Should the Official Receiver receive a payment from BBBBBB, depending on the size of the award, he will declare a dividend to your creditors in an attempt to reduce some of the debt in your bankruptcy. The Official Receiver is obligated to do so and has a duty to the creditors to carry out this process. I am sorry that I am unable to offer a positive answer for you on this occasion but hope my explanation clarifies the position regards the Official Receiver and any ppi award where a ppi was started prior to a bankruptcy. ME Thank you for your prompt response the contents of which are noted. However I did not state that the funds form part of the assets in my bankruptcy, I stated that you may feel that they do. I certainly do not think that they do. The bank loan in question was opened and closed 8 years prior to my forced bankruptcy, the ppi payments made on it were in error and therefore the refund is due at the same time pre-dating the bankruptcy by some 8 years. The official receiver cannot claim monies paid by me in error prior to my bankruptcy, the bank should have refunded the monies AT THE TIME and therefore it does not form part of my assets. If the loan was outstanding at the time of my bankruptcy I would concur with your email however this was 8 years prior, the monies were paid in error to the bank and they should have refunded them AT THE TIME. This is what the Financial Ombudsman has told them to do. The fact that they have taken 12 years to do so show in the penal 8% interest they have been forced to pay as recompense. The simple fact is the financial transaction should not have occurred 8 years ago and therefore the refund does not form part of my assets at the time of my bankruptcy. On a separate note BBBBBB were told in court that only £1400 was due that was, however, enough to make the judge declare my bankruptcy. The total debt you mention was being serviced, it is not against the law to have debt as long as it is serviced. I disagreed with the amount I owed BBBBBB. BBBBBB have subsequently admitted that their figures were wrong however my health concerns have prevented me from pursuing this matter, although I may now do so. THEM For information the Bankruptcy Order was made against you on xxxx and you were subsequently discharged from the bankruptcy on xxxx. The PPI compensation relates to loans taken out by you prior to the date of your bankruptcy order. The vesting in the trustee of the right to complain in respect of mis-sold PPI arises as a result of the provisions of the Insolvency Act 1986, specifically sections 283, 306 and 436. Therefore, the guidance to official receivers has consistently been that the right to complain in respect of mis-sold PPI is a vesting asset and this was dealt with on a case by case basis. The reason that the amount due is payable to the official receiver as your trustee in bankruptcy is because the right to complain about the mis-selling of the PPI policy and to receive the payment in respect of the policy arose from the policy itself. As you paid for this policy prior to the bankruptcy, it falls within the definition of property within the meaning of section 436 of the Insolvency Act 1986. In addition, the right to make a claim arose when the mis-selling took place, that is when the contract was entered into, and this was prior to the bankruptcy order. Therefore, the right for you to make a claim arose at this time and not from when you actually made the claim. Given that the right to make the claim precedes the bankruptcy order, it forms part of your bankruptcy estate. As the PPI policy is a separate product to the debt it was obtained to protect, the right to compensation for mis-selling will vest in the trustee whether or not the loan has subsequently been repaid. This would apply even if the loan had been repaid in full prior to the bankruptcy order. (Ward v Official Receiver.) Any advice fully appreciated

also I have only heard about this action via the tenants

Oh and there are 2 further charges on the property one from an 'exfriend' and one from link

oh and i was made bankrupt in 2009 which ended in 2010, the arrears were 'named' in the bankruptcy (i believe so i would not be liable should prepossessing occur)

Hi, Have had a lot of previous help on here before and now really need you guys again I took out a mortgage (foolishly) with Kensington in 2005 for 206,000 (self cert) Due to the nature of my work i had a few late payments but stayed up to date until 2007 after a few missed payments and electrics cut off etc I moved out and rented the place out for £150 less than the mortgage was but as was back with parents I could cover it with a few change of tenant etc arrears began to mount and then i suffered heart failure and had to go into hospital, during this time they agreed for 3 months a reduced payment of £50 although obviously forcing more arrears they then a few months ago discovered that it was tenanted and have loaded the mortgage by £500 per month and backdated it, so i am now going into arrears by 500 per month the amount outstanding now is apparently £228,000 at some point unbeknown to me they got a possesion order that i got suspended they have now written to the tenants advising that they have applied in September for a warrant of possession naturally my tenants are worried I don't want to lose my property as other areas (work) are now beginning to improve and i wanted to move back there early next year I have received no written communication from Kensington at my Mothers address only telephone calls. they are also adding £50 per month for failing to meet payments please advise if you need further information please ask I am terrible with paperwork and have virtually none

thx, but they are saying they will use the refund against my debt with them

Hi, can someone offer some advice for me please, Background I was made bankrupt by one of my creditors 20 months ago after a long struggle. I was discharged a few months ago. Over the years i paid a lot in PPI. Have begun to try and reclaim the amounts. The petitioning creditor has come back to me and offered me my ppi premiums back + interest, however they are going to use it to reduce my 'debt' with them. I therefore haven't accepted their offer. Questions 1) I thought bankruptcy removed the debt therefore they should send me the money 2) if i hadn't paid the premiums in the first place i may not have had to be made bankrupt so can i have the bankruptcy overturned. Bankruptcy has completely changed my life as i worked in financial services since 1993 and obviously cannot now. Any and all advice welcomed I have deliberately kept the information short for simplicity and also because i am aware these forums are watched but if more info is needed please ask. thanks

especially with the holes picked in their reconstuctions of alleged agreements

the insolvency act falls within CPR. no?

where are you looking please?

insolvency

i was looking for the bit about the applicant needing to produce originals in court, not the poor illegible photocopies they attached to their statement

thx shadow

1. I, xxxx, make this statement in response to the Applicant’s Statement of XXst March 2009. I apologise for the late filing and service of this Statement, caused as the court is aware by the illness and subsequent invasive surgery I have undergone within the last three months. 2. In the applicant’s second statements’ exhibits a default notice that is alleged to have been sent to me is shown and the length of time taken to find the Notice is given as an excuse for the late filing of his statement. 3. Notwithstanding the matters pleaded earlier, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement. 4. Under the Interpretation Act 1978 Section 7, it states: Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post." 5. Practice Direction Service of Documents - First and Second Class Mail. With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore. 1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post. 2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:- (a) in the case of first class mail, on the second working day after posting; (b) in the case of second class mail, on the fourth working day after posting. "Working days" are Monday to Friday, excluding any bank holiday. 3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used. 4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process. 8th March 1985 J R BICKFORD SMITH Senior Master Queen's Bench Division 6. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :- Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day. 7. The Default notice supplied by the Claimant is dated Sunday 13th May 2007, therefore could not have been posted until Monday 14th May 2007. To allow service in line with the statutory requirements mentioned in points 5 & 6 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Thursday 17th May 2007, namely Thursday 31st May 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 27th May 2007. 8. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also 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). The 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119. 10.It is therefore submitted that the Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). 11. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states: Section 87. Need for Default Notice (1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement - (a) to terminate the Agreement, or (b) to demand earlier payment of any sum, or © to recover possession of any goods or land, or (d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or (e) to enforce any security. 12. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below: Section 88. Contents and effect of Default Notice (1) The Default Notice must be in the prescribed form… 13. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue. 14. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence. 15. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default. 16. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully. 17. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate. 18. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87. 19. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on19th June 2007. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future. 20. The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case. 21. Notwithstanding the above, the default notice states ‘You have failed to make the minimum payments due to your account as required by clause three of the terms and conditions governing the use of the American Express Credit Card.’ Looking at the terms and conditions exhibited at page 7 of GPP1 and alleged to form part of the agreement between myself and American Express, clause 3 relates to ‘The Account’ and has 3 sub points none of which refer to minimum payments. Furthermore the default notice states at point 3 ‘Your account may be referred to a debt collection agency and you may be charged for any costs which American Express incur in recovering any overdue amount from you as stated in clause 7.2 of the Terms and Conditions governing the use of the credit card’. Again looking at the terms and conditions exhibited at page 7 of GPP1 clause 7.2 relates to the daily interest to be charged for a period of six months. 22. As this clearly demonstrates one or both of the documents is false, if it is the default notice then as stated earlier but for different reason the claimant is prevented from taking further action to recover any sums due, or if it is the terms and conditions that is a falsehood then no agreement exists and the claimant has brought this action unfairly. 23. Notwithstanding the above and as I have referred to in my previous statement no enforceable agreement exists between myself and American Express, the exhibits shown by the applicant are application forms and do not subscribe to the format dictated by the Consumer Credit Act 1974. The Claimant is at pains to put to this court that it is a correct agreement as stipulated in the Consumer Credit Act. However to be a credit agreement regulated by the Consumer Credit Act 1974 the agreement has to be a single page and include a number of prescribed terms, as dictated by Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 and for a credit card consist of - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit. And in all cases - A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-- (a) number of repayments; (b) amount of repayments; © frequency and timing of repayments; (d) dates of repayments; (e) the manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable. In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”. The terms and conditions exhibited at page xx of xxx clearly do not form part of the application form,

hi everyone, thanks for all your help thus far. I have unfortunately due to health reasons and personal problems not had the time to deal with all this fully and i have lost every thing i had saved on my computer so am rewrting my third statement which i need to submit by thursday!!!!!!!!!! I have done a large chunk of it and am on the home run now (i think) but would really appreciate some help with the ending firstly there is a section in this forum relating to CPR rules about producing original agreements and the applicant relying on them in court. could someone point me to it please. secondly can i post my statement thus far in here for a proof read by someone more experienced than myself. thirdly i am going to file a counter claim for the penalty charges and missold ppi a) do i mention that in my statement? b) how do i calculate the interest on the amounts? thank you in advance

Thx 42man. Sorry been ill again but got further adjournment. (about a month and a bit away now) King 123, i am considering getting counsel for this. thanks. Statement nearly finished. Anyone wanna proof read it?

can someone check i have the dates correct please The Default notice supplied by the Claimant is dated Sunday 13th May 2007,therefore could not have been posted until Monday 14th May 2007. To allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Thursday 17th May 2007, namely Thursday 31st May 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 27th May 2007.

Thanks 42man, I am all over this default notice bit like a cheap suit! I agree that it is duff but not only that it makes reference to clause 7.2 and clause 3 which do not relate to the alleged terms and conditions supplied. So either the default notice is incorrect or the agreement is. Either way it makes them wrong. Trying to get this all down in a statement, and some other stuff that about the charge card, is tough though. Working on it this weekend and will have first draft by mon evening. Bearing in mind at the last hearing the registrar didnt even read my statements i need to be as clear as possible. although this hearing does have a time estimate of 3 hours!# almost excited!

I am back! Have been resting since surgery (which was a success) Got a couple of adjournments to cover my recovery and may apply for another but need to get on top of this and get my next statement in. will have some questions. thanks for all help thus far. Question 1 what is the latest (nearest to hearing) I can file a statement? Traderx

they have provided me me thus far with 3 different 'application' forms with 2 different sets of terms and conditions allegedly on the back of the application form. 1 cca request just the front of app form 2 1st statement had terms and cond photocopied on back (ones that dont relate to default notice 3 in SAR pack app form with a set of terms and conditions on leaflet type

I believe that was in the first statement. and the process server was at the first hearing.

One of my old neighbours has forwarded me this sent to my old address, no idea when it arrived. Cant believe the court doesnt have the correct address