RED SD old Cap1 debt **SET ASIDE**

[rory32]

Okay you sent the CCA request which gives you grounds for the set aside, are there any charges on the account as well?

[Boro]

Yes a number of charges which is why i dispute it, unfortunately because it is so old (not yet stat barred but cant be far off) i dont have very many statements at all from cap 1 for the card, just a couple of the last ones (show charges)

[Hippy-chick]

So - what are your exact problems with filling in the forms then?

[Boro]

Basicaly no idea what im doing with them and dont know what to put in the affidavit so could do with someone to guide me through them and help write the affidavit

[Hippy-chick]

Probably.

 

But, as I've said - this is not my area. What questions are you being asked? What do you have to say in the affadavit? Btw, I've sent you a pm about nothing much.

 

HC

[rory32]

What form are you looking at for the set aside?

[Boro]

6.4 and 6.5 i believe, just never had to do something like this before and im not the best with paperwork/wording things at the best of times!

[Boro]

I will see if i can find the forms online then post them on this thread so i can ask specific questions

[rory32]

Okay the fact that you don't know how much the charges are is irrelevant - it just gives the judge a secondary reason for the set aside. I'll write you a set aside application in the morning. It's not something you should worry about as set asides are straightforward to obtain. Could you tell me was the SD for over 750 pounds?

[Boro]

A little under £1100 and many many thanks it realy is appreciated

[Hippy-chick]

Well I, for one, would like to see what a set aside looks like. Any chance you can post it so we can all learn from it Rory?

[rory32]

A few more questions (sorry if you've already been asked and answered them) have you ever received a Notice of Assignment giving Red the legal right to collect on this account? Have you ever received a default notice on this account? Did you ever had PPI on the account?

[Boro]

Yes on notice of assignment from both cap1 and lowell, i dont recall having ever had a default notice and didnt come across one in my paperwork, no ppi that i recall

[rory32]

Any chance you can post it so we can all learn from it Rory?

Yes certainly, but it's actually a very straightforward arguement which doesn't need all the legal stuff that a Particulars Of Claim would require.

[Boro]

Oh and on page 2 of this thread should be the scanned in sd which they sent, personal details omitted, thanks

[Hippy-chick]

Yes certainly, but it's actually a very straightforward arguement which doesn't need all the legal stuff that a Particulars Of Claim would require.

 

I'm sure Rory - but as one who has never seen one - and is keen to learn - it would be helpful.

[linz2011]

Hi Boro

 

have a look here it is an excellent thread on getting a set aside

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/86067-getting-statutory-demand-set.html?highlight=statutory+demand

[rory32]

your application for a set aside is as follows:

 

1. The alledged account is in dispute. I have on x date requested a copy of the credit agreement on the alleged account. The production of a credit agreement is a legal requirement under The Consumer Credit Act. The alleged account can only be enforced under the Act by producing a copy of the agreement, to date this has not been produced.

2. Even if a credit agreement can be produced any amount stated as owing would be disputed due to unlawful charges levied on the account.

3. I have not received any Default Notice for this account. The serving of a Default Notice before any legal action is taken is a requirement under the Act.

4. I have received no Letter Before Action. I believe that (insert name of DCA) are using court as a first resort. Furthermore I believe that this is an abuse of process and (insert name of DCA) are vexatious in their litigation.

 

I therefore repectfully ask for the Statutory Demand to be set aside.

 

 

Remember that there is no fee for the set aside.

 

I'm not sure about point 4. Did you receive a letter before action on this account?

[Boro]

Thanks rory thats great, as to point 4 the lowell group had written a few letters over the course of the last year but went ignored by myself, there was however no warning of bankruptcy, question for you as to the default notice what if they had sent one and i either hadnt received it or did receive one but dont have it and cant recall it? :S just thinking in regards to swearing under oath although to the best of my knowledge is that i have not had one i just wondered what happens if they are able to produce one as evidence

[rory32]

Default notices are generally not kept (although they are supposed to be). Generally what would be produced, if anything, would be a template of a default notice. If you honestly believe that you have not received one the onus would be on them to prove that one was sent. It's highly unlikely that they would be able to do this. The two important things though are the copy of the agreement and the sum allegedly owing being in dispute. These on there own are very valid reasons for a set aside.

 

In all likelyhood as soon as you request a set aside they will withdraw the SD as in 90% of instances it is simply used as a scare tactic to get you to pay unquestioningly. As you are not a home owner and the amount is relatively low then it is very likely that you fall into the 90%, however it's always wise to apply for a set aside just in case.

[Boro]

Would it be wise to file a copy of the cca request, postal receipt and printout of their signature accepting delivery along with a copy of their letter of acknowledgment with my set aside application or are these not needed?

[rory32]

You don't need to at the moment. One of two things will happen:

 

1. Once Red are notified that you have applied for a set aside they will withdraw the statutory demand and you will be asked to withdraw your application for a set aside (this is the most likely option); or

 

2. You'll receive a letter from the court informing you that a judge will look at the set aside application and there may be a directions hearing (this is what happened in the thread that linz2011 posted a link to).

[Boro]

Now onto filling out the forms, link so you have them infront of you http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf

 

a) assume my name and address correct? does the bit about the registrar get filled out at the time when i take the paperwork to court to file?

 

b) my name along with the date on the sd

 

c) the date i fill out the paperwork

 

d) is this lowells name and address?

 

e) my address?

 

date and sign although a little confused by the bit that says (solicitor for the) applicant

 

form 6.5 looks straight forward enough, name and address, date of service and oath from above

[Boro]

Anyone able to advise on my last post? the deadline is tuesday so would like to file the papers by the end of this week realy

[PI Guy]

PI Guy have you read about lowells use of these sd's and how they have been sending them out like confetti? if they want to bankrupt me thats fine, it will cost them money which they wont get back and write out all of my debts but i honestly cannot see them doing it for an debt of less than £1100

 

Edit: yes i am aware that you serve these on people

 

Sorry if i sounded a bit arsey there, didnt meen to its been a bad week

I know that they are frequently used to intimidate and its (IMHO) an abuse of process.