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As Advised by Rory32 I have started my own Thread so all you helpfull people out there can help me and give me some advice!

 

Basically I have recived a letter today out of the blue from Red Debt Collection Services regarding a debt from 2001, the letter I've received today contained a Statutory Demand in it which I think now means that Red are trying to declare me Bankrupt?? but I thought under the Limitations Act 1980 my debt was now statute-barred??? :sad: I'm confused as I don't know what to do now.......Do you think that red are trying to scare me with the Statutory Demand? If they are it has worked!

 

Rory32 replied that yes they are probably trying to scare me, if the debt is Statue-barred, and that it would probably be best to apply to set the demand aside but I still have some questions as I'm so out of my depth here!

How can I find out if the Debt is Statute Barred or not? can I send some kind of letter to find out? also how can I apply for the Statutory Demand to be set aside without acknowlegeing the debt? Does the demand end up in me being declared bankrupt????

 

please help me as I'm so worried about his now. :Cry:

 

many thanks people!

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hi there

 

dont worry, help is at hand,

 

i know of a good helpful website which should help you through the process of getting the Stat demand set aside

 

Legal Issues Explained - Statutory Demand

 

if you get stuck, just shout and we will give you the help you need

 

regards

paul

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If you are sure the Debt is Statute Barred then you have no worries. You could always send Lowells the Statute Barred letter. Its up to them to prove its not Statute Barred not up to you to prove it is.

 

Sorry I don't have a Statute-Barred letter, is there a way I could find out if the debt is in fact Statute-Barred?? The debt is from 2001 an old credit card that was used in my name by my ex when we split and I left our home, the funny thing is this is the first I've heared of it until now. At first I wasn't even sure if the debt was mine?

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I recieved it through the post out of the blue this morning......postman delivered it with the rest of the mail.
ok so im assuming it was sent first class post, is that correct??
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No, it was sent second class! :confused:

 

i know its rather confusing but as far as i know a statutory demand MUST be served by first class post for it to be considered effective.

 

bear with me im just logged into the law library to check a couple of things

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Mad as hell i hope you dont mind me jumping in here but i have a quick question for pt2537, but like you i had one of these from red on friday and have a couple of similar questions, already have my own thread running here if theres any useful info for you http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/122412-statutory-demand.html

 

pt2537 Mine came through second class post as well and also is missing a court name, just states "your local county court, or combined court" where they should have entered the courts name in, do either of these issues invalidate the sd?

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Hi guys, im looking into the requirements of service at the moment but it may take a while, it looks like there is a requirement for service by firstclass post but i want to double check

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PT is correct there are certain ways to serve a SD and SECOND class post isn't considered one of them.

 

Now this doesn't mean you should take this seriously.

 

Do you remember the last time you acknowledged this debt in writing or by payment as this is important for the next step.

Also what value is this debt ??

 

For now have a read of this sticky: http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/112326-debt-collection-agencies-statutory.html

 

Boro or Mad As, can either of you scan the front page of this document and post it here, after removing your personal details ??

Be VERY careful whose advice you listen too

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Hey, I've just checked my credit file online, something I have never done before and found the debt on there, the date started was 19/4/01 nad the date in which it was defaulted was 7/2/02. The amount which it is for is £1453.00 this means that it is in fact not Statue-Barred??????? :mad: oh feck!

So what do i now do??

I'll try and scan the document not sure if my scanner is hooked up to pc. If was defo snet second class post though!

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The date of default is meaningless.

What is important is the date of the last acknowledgement.

 

RED seem to be following in another DCA footsteps with these SD's.

Be VERY careful whose advice you listen too

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The date of default is meaningless.

What is important is the date of the last acknowledgement.

 

RED seem to be following in another DCA footsteps with these SD's.

 

Ahh right in that case then I have never to my knowledge, acknowledged the debt as my own.....if anything in all honestly I have denied it to the hilt.

How do i find out what info they have on the debt? Do I need to request the info from RED??? :confused:

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Couple of strategies. If it was Defaulted on 7/2/02 its highly likely that you stopped paying a couple of months before then so it would in all probability be Statute Barred now. An SAR to the original creditor to see if their are any charges. This can take up to 40 days. A CCA request to Lowells to see if they even have an enforcable agreement.

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As far as I know an SD has to be served personally or at the very least by 1st Class post if personal service was not possible and then I believe it up to the DCA to prove to the Court why personal service was not possible. Applying for a Set Aside would prove that the SD had been served on you. Applying for a CCA would put the account in dispute and not admit service of the SD. Its between you and your consience as to whether to admit receipt of the SD. Im sure Lowells would have to prove service.

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Oh no that all sounds complicated? :eek:

how should I apply for these things? and what effect would these have on the stat demand when I request them? would they have to put a halt on it?? Are Lowell and Red the same company?

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The date of default is meaningless.

What is important is the date of the last acknowledgement.

 

RED seem to be following in another DCA footsteps with these SD's.

Yes a well known CON trick.:rolleyes:

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Oh no that all sounds complicated? :eek:

how should I apply for these things? and what effect would these have on the stat demand when I request them? would they have to put a halt on it?? Are Lowell and Red the same company?

There is a template letter for a CCA request and Statute Barred Letter.

 

Lowell = Red Debt = Hamptons iLegal = Lowells. Same excrement different notepaper

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Bankruptcy

 

 

Chapter 1

The Statutory Demand

6.1 Form and content of statutory demand

(1) A statutory demand under section 268 must be dated, and be signed either by the creditor himself or by a person stating himself to be authorised to make the demand on the creditor's behalf.

(2) The statutory demand must specify whether it is made under section 268(1) (debt payable immediately) or section 268(2) (debt not so payable).

(3) The demand must state the amount of the debt, and the consideration for it (or, if there is no consideration, the way in which it arises) and—

(a) if made under section 268(1) and founded on a judgment or order of a court, it must give details of the judgment or order, and

(b) if made under section 268(2), it must state the grounds on which it is alleged that the debtor appears to have no reasonable prospect of paying the debt.

 

 

 

(4) If the amount claimed in the demand includes—

(a) any charge by way of interest not previously notified to the debtor as a liability of his, or

(b) any other charge accruing from time to time,

 

 

 

the amount or rate of the charge must be separately identified, and the grounds on which payment of it is claimed must be stated.

In either case the amount claimed must be limited to that which has accrued due at the date of the demand.

(5) If the creditor holds any security in respect of the debt, the full amount of the debt shall be specified, but—

(a) there shall in the demand be specified the nature of the security, and the value which the creditor puts upon it as at the date of the demand, and

(b) the amount of which payment is claimed by the demand shall be the full amount of the debt, less the amount specified as the value of the security.

 

 

 

 

 

 

 

 

 

 

 

 

 

6.2 Information to be given in statutory demand

 

 

 

(1) The statutory demand must include an explanation to the debtor of the following matters—

(a) the purpose of the demand, and the fact that, if the debtor does not comply with the demand, bankruptcy proceedings may be commenced against him;

(b) the time within which the demand must be complied with, if that consequence is to be avoided;

© the methods of compliance which are open to the debtor; and

(d) his right to apply to the court for the statutory demand to be set aside.

 

 

 

(2) The demand must specify one or more named individuals with whom the debtor may, if he wishes, enter into communication with a view to securing or compounding for the debt to the satisfaction of the creditor or (as the case may be) establishing to the creditor's satisfaction that there is a reasonable prospect that the debt will be paid when it falls due.

In the case of any individual so named in the demand, his address and telephone number (if any) must be given.

 

 

 

 

 

 

6.3 Requirements as to service

 

 

 

(1) Rule 6.11 in Chapter 2 below has effect as regards service of the statutory demand, and proof of that service by affidavit to be filed with a bankruptcy petition.

(2) The creditor is, by virtue of the Rules, under an obligation to do all that is reasonable for the purpose of bringing the statutory demand to the debtor's attention and, if practicable in the particular circumstances, to cause personal service of the demand to be effected.

(3) Where the statutory demand is for payment of a sum due under a judgment or order of any court and the creditor knows, or believes with reasonable cause—

(a) that the debtor has absconded or is keeping out of the way with a view to avoiding service, and

(b) there is no real prospect of the sum due being recovered by execution or other process,

 

 

 

the demand may be advertised in one or more newspapers; and the time limited for compliance with the demand runs from the date of the advertisement's appearance or (as the case may be) its first appearance.

 

 

 

 

 

 

 

 

6.4 Application to set aside statutory demand

 

 

 

(1) The debtor may, within the period allowed by this Rule, apply to the appropriate court for an order setting the statutory demand aside.

That period is 18 days from the date of the service on him of the statutory demand or, where the demand is advertised in a newspaper pursuant to Rule 6.3, from the date of the advertisement's appearance or (as the case may be) its first appearance.

(2) Where the creditor issuing the statutory demand is a Minister of the Crown or a Government Department, and—

(a) the debt in respect of which the demand is made, or a part of it equal to or exceeding the bankruptcy level (within the meaning of section 267), is the subject of a judgment or order of any court, and

(b) the statutory demand specifies the date of the judgment or order and the court in which it was obtained, but indicates the creditor's intention to present a bankruptcy petition against the debtor in the High Court,

 

 

 

the appropriate court under this Rule is the High Court; and in any other case it is that to which the debtor would, in accordance with paragraphs (1) and (2) of Rule 6.40 in Chapter 3 below, present his own bankruptcy petition.

(3) As from (inclusive) the date on which the application is filed in court, the time limited for compliance with the statutory demand ceases to run, subject to any order of the court under Rule 6.5(6).

(4) The debtor's application shall be supported by an affidavit—

(a) specifying the date on which the statutory demand came into his hands, and

(b) stating the grounds on which he claims that it should be set aside.

 

 

 

The affidavit shall have exhibited to it a copy of the statutory demand.

 

 

 

 

 

 

6.5 Hearing of application to set aside

 

 

 

(1) On receipt of an application under Rule 6.4, the court may, if satisfied that no sufficient cause is shown for it, dismiss it without giving notice to the creditor. As from (inclusive) the date on which the application is dismissed, the time limited for compliance with the statutory demand runs again.

(2) If the application is not dismissed under paragraph (1), the court shall fix a venue for it to be heard, and shall give at least 7 days' notice of it to—

(a) the debtor or, if the debtor's application was made by a solicitor acting for him, to the solicitor,

(b) the creditor, and

© whoever is named in the statutory demand as the person with whom the debtor may enter into communication with reference to the demand (or, if more than one person is so named, the first of them).

 

 

 

(3) On the hearing of the application, the court shall consider the evidence then available to it, and may either summarily determine the application or adjourn it, giving such directions as it thinks appropriate.

(4) The court may grant the application if—

(a) the debtor appears to have a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt or debts specified in the statutory demand; or

(b) the debt is disputed on grounds which appear to the court to be substantial; or

© it appears that the creditor holds some security in respect of the debt claimed by the demand, and either Rule 6.1(5) is not complied with in respect of it, or the court is satisfied that the value of the security equals or exceeds the full amount of the debt; or

(d) the court is satisfied, on other grounds, that the demand ought to be set aside.

 

 

 

(5) Where the creditor holds some security in respect of his debt, and Rule 6.1(5) is complied with in respect of it but the court is satisfied that the security is under-valued in the statutory demand, the creditor may be required to amend the demand accordingly (but without prejudice to his right to present a bankruptcy petition by reference to the original demand).

(6) If the court dismisses the application, it shall make an order authorising the creditor to present a bankruptcy petition either forthwith, or on or after a date specified in the order.

A copy of the order shall be sent by the court forthwith to the creditor.

 

 

 

 

 

 

 

 

 

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Sending SDs out was a favoured ploy of CONnaught Collections. THey sent them out by the rainforest load. They were generally seen as a scare tactic as they did not follow up on the majority of them and always backed down when CCAed

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156. Requirements as to service.

The creditor is1 under an obligation to do all that is reasonable for the purpose of bringing the statutory demand to the

debtor's attention and, if practicable in the particular circumstances, to cause personal service of the demand to be effected2.

Where the statutory demand is for payment of a sum due under a judgment or order of any court and the creditor knows, or

believes with reasonable cause:

(1) that the debtor has absconded or is keeping out of the way with a view to avoiding service; and

(2) there is no real prospect of the sum being recovered by execution or other process,

the demand may be advertised3 in one or more newspapers; and the time limited for compliance with the demand runs from

the date of the advertisement's appearance or, as the case may be, its first appearance4.

 

 

2 Ibid r 6.3(2). The creditor must take all reasonable steps to bring the statutory demand to the debtor's attention: Re H (a debtor) (38-SD of

1997) (2000) Times, 10 May, CA; and see Regional Collection Services Ltd v Heald [2000] BPIR 661, CA. The court may decline to file the

petition if not satisfied that the creditor has discharged the obligation imposed on him by the Insolvency Rules 1986, SI 1986/1925, r 6.3(2): see r

6.11(9); and para 166 post.

Rule 6.11 (as amended) (see para 166 post) has effect as regards service of the statutory demand, and proof of that service by affidavit to be filed

with a bankruptcy petition: r 6.3(1). As to the use of witness statements instead of affidavits in insolvency proceedings see r 7.57(5), (6) (as

substituted); and para 793 post.

Where it is not possible to effect prompt personal service, service may be effected by other means such as first-class post or insertion through a

letter box: Practice Direction-Insolvency Proceedings para 11.1. Service of a statutory demand by post is deemed to be effected on the seventh day

after posting: para 11.5. In all cases where substituted service is effected, the creditor must have taken all those steps which would justify the court

making an order for substituted service of a petition; and failure to comply with these requirements may result in the court declining to file the

petition: para 11.3; Insolvency Rules 1986, SI 1986/1925, r 6.11(9). As to orders for the substituted service of a petition see Practice Direction-

Insolvency Proceedings para 11.4; and para 171 post.

The Insolvency Rules 1986, SI 1986/1925, r 6.3(2) applies to service of a statutory demand outside the jurisdiction: Practice Direction-Insolvency

Proceedings para 10.2. A creditor wishing to serve a statutory demand outside the jurisdiction in a foreign country with which a civil procedure

Convention has been made, including the Hague Convention (The Hague, 15 November 1965; Cmnd 3986), may and, if the assistance of a British

consul is desired, must adopt the procedure prescribed by CPR r 6.25 (see PRACTICE AND PROCEDURE vol 37 (Reissue) para 349): Practice

Direction-Insolvency Proceedings para 10.3. In all other cases, service of the demand must be effected by private arrangement in accordance with

the Insolvency Rules 1986, SI 1986/1925, r 6.3(2) and local foreign law: Practice Direction-Insolvency Proceedings para 10.4. When a statutory

demand is to be served out of the jurisdiction, the time limits of 21 days and 18 days respectively referred to in the demand must be amended in

accordance with Practice Direction-Service (2000) PD 6A (see PRACTICE AND PROCEDURE vol 37 (Reissue) para 345 et seq): Practice

Direction-Insolvency Proceedings para 10.5. A creditor should amend the statutory demand as follows: (1) for any reference to 18 days there must

be substituted the appropriate number of days set out in the table plus four days; and (2) for any reference to 21 days must be substituted the

appropriate number of days in the table plus seven days: para 10.6.

 

3 Advertisement can only be used as a means of substituted service where: (1) the demand is based on a judgment or order of the court; (2) the

debtor has absconded or is keeping out of the way with a view to avoiding service; and (3) there is no real prospect of the sum due being recovered

by execution or other process: Practice Direction-Insolvency Proceedings para 11.2. For an acceptable form of advertisement see para 11.2.

 

4 Insolvency Rules 1986, SI 1986/1925, r 6.3(3).

 

 

 

 

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