Statutory Demand - Connaught Collections

[ElevatorFour]

Hello

 

I received a statutory demand from 1st Credit/Connaught this morning. I don't even know who they are. I know what the debt is, it's a credit card default from some 6+ years ago. I've just looked up the paperwork (which I fortunately still have), and the last statement I got from the bank was in March 2002. In April of that year I received a payment demand from Triton Credit Services, then nothing until Feb 2003 when I received a warning letter from Allied International Credit, threatening referral to their legal department. A further letter was sent on 12 March 2003, an urgent final notice of intent. Another letter dated 25 March 2003 was sent of an intended visit. I then heard nothing further.

 

I did not respond to any of the above...and yes I am aware that I should have paid the money, but was in financial difficulties and felt my mortgage payments had to come first. Stupid, but there you go...

 

I'm now a student (although I own my own home), so whilst I don't have any money, I do have property that could be threatened by bankruptcy...and to top it all my future career could also be affected if I was made bankrupt and I'd then be homeless, jobless AND saddled with student loan debts!

 

I had no idea that the bank had sold the debt...since that time I've had a good credit rating - I paid off all my other debts, and now don't borrow money at all (student loans aside).

 

Having read some of the other threads on statutory demands, and also having read the Insolvency Helpline information, I note that 90% of these demands won't be followed up. Can I risk it? Or should I be attempting to have the order set aside?

 

Thank you in advance for any assistance.

[baileyboy]

These are usually idle threats, but they may just feel lucky and take it all the way. Best to get it set aside by a court, or else it could just come back later and bite you.

[ElevatorFour]

How do I do that?

[PGH7447]

If you last acknowledge the debt over 6 years ago then it is probably statuted barred.

 

Someone with knowledge of how to handle a Stat demand will be along soon to put you on the right path.

 

But in the meantime do not contact these people by phone

[ElevatorFour]

Thank you for the information so far...am doing a bit of research into the statute barred element...and certainly won't be contacting this company at all unless, or until, I know precisely what to say to them.

[ElevatorFour]

Any more suggestions?

[ElevatorFour]

It would be really useful to have some assistance...thanks.

[smithy73]

It would be really useful to have some assistance...thanks.

Hi there ElevatorFour,

 

!st credit are becoming increasingly agressive with their tactics. I received a stat demand from them a couple of weeks ago. As a previous post explained its best not to ignore it as it will bite you in the arse.

From the issue date you have 18 days to respond to it. You will need to apply to the court have it set aside.

There is a form to fill out called Form 6.4 - Application to set aside a statutory demand and also in conjunction Form 6.5 - Affidavit in support of Application to set aside statutory demand.

If you google these you will be able to download and print them off.

Some advice on filling form 6.5 can be found on a sticky called debt collection agencies & statutory demands a few strategies.

Debt Collection Agencies & Statutory Demands, a few strategies(1 Viewing).

Not sure if that link i have put in will work, not the best with technology!!!

It would also be worth requesting a copy of the CCA because if they can not produce it they will not be able to en force the debt.

Hope this was of help. If you need any help with forms let me know. Will only be available today till 12.00 then back on line wed next week.

 

regards,

 

Smithy:)

[citizenB]

It works just fine smithy, I just popped in to see how you were doing with your stat demand and discover you are well on it.

[smithy73]

Hi CB,

 

Yes got all my paperwork sorted yesterday. Just got to pop in to court with my paperwork and the stat demand, swear an oath and away we go! Will keep you upto date.

 

Smithy.

X

[nicklea]

Hi elevator4 (interesting name!)

 

Frist of all you need to send a cca s78 request to them asap as shown below. You need to enclose a payment of £1 and it is generally suggested that this is done as a postal order.

 

The Loan Company

Dear Sir/Madam

 

Re:− Account/Reference Number xxxxxxxxxxxxxxx

With reference to the above agreement, I would be grateful if you would send me a copy of this credit agreement.

 

I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of my credit agreement on request. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

 

I understand a copy of my credit agreement should be supplied within 12 working days.

 

I understand that under the Consumer Credit Act a creditor is unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

I look forward to hearing from you.

 

Yours faithfully

 

print but don't sign your name

 

 

With the Statutory Demand (SD) you have 18 days to get it set aside from the date you received it, regardless of whatever date is on it.

 

Here are forms you need to fill in:-

 

http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf

http://www.insolvency.gov.uk/pdfs/forms/6-5.pdf

 

ok on form 6.4 at (a) put the name and address of the person given on the SD

 

Where it says "attend before the Registrar" etc leave this bit blank the court will fill it in

 

(b) put your name

 

next bit put in the date shown on the SD

 

© the date that you're going to swear the affadavit

 

(d) the same name and address that you put in (a)

 

(e) your name and address

 

 

 

on 6.5

 

(a) your name and address and the word Applicant

 

(b) the date that you first saw the document (not the date on the SD)

 

© That I do not admit the debt because the existence/enforceability of the alleged debt is in dispute:

 

The respondent alleges that I am indebted to it in the sum of £xxxx, being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 ("the 1974 Act"). It is further alleged that the debt was assigned to the respondent from XXXX (the name of the cc company). I submit that the statutory demand should be set-aside upon the following grounds:-

 

1) I have no knowledge of this debt. The respondant has never communicated with me in the past (is this true?) and has offered no evidence that any alleged debt exists or the manner in which the sum claimed has been calculated. The first time I was made aware of the alleged debt by the respondant was in the Statutory Demand that was served on me by ordinary post. I note that no attempt was ever made at personal service.

 

2) Further, without the existence of an agreement that is signed in the manner prescribed and contains all of the terms prescribed by the 1974 Act the respondant is barred from attempting to enforce any alleged debt under s127 of the act.

 

3) The respondant has failed to serve a valid default notice in relation to the alleged agreement pursuant to s88(1) of the 1974 Act. Further or alternatively, the alleged debt contains sums levied by way of penalty charges which the applicant will say are contrary to common law. Accordingly, any default notice which may have been served could not have contained accurate particulars of the outstanding debt and would therefore have been defective and invalid.

 

4) Even if an enforceable agreement were to be produced any amount owing would be disputed due to the presence of unlawful penalty charges on the account.

 

5) No notice of assignment has been sufficiently served on me as is required by the Law of Property Act 1925. The respondant therefore has no right of action as the assignment is ineffective.

 

6) The respondent has chosen to serve a statutory demand by ‘regular’ post without first making any contact with me in any way in relation to the alleged debt. In view of this, and of the matters pleaded above, the applicant avers that the service of the statutory demand is demonstrably frivolous, intimidatory and an abuse of process.

 

Accordingly, I respectfully request that the statutory demand be set aside. Further, I invite the court to make an order of costs in favour of the applicant in respect of the reasonable cost of preparing this application and of attending any hearings in respect thereof.

 

 

You then need to take all the documents down to your local county court and tell them that you need to swear an affadavit. Thye will make you hold a bible and repeat after them etc. You then hand in the documents and wait to hear for the court date. It's not really scary at all, it's free and you can even claim your expenses from the other side.

 

Instead of swearing the affadavit at the court you can do it in front of a solicitor if it's easier but they will make a small charge

 

Hope this helps

[ElevatorFour]

Thanks so much for the information...

 

A couple of other questions, having read the information on this forum: the letter arrived with the rest of my post yesterday, no postmark or stamp...but it was definitely delivered by the postman. Aren't these things supposed to be hand delivered or delivered by first class post?

 

Secondly, if I ask them for a CCA aren't I just acknowledging them, when thus far I have ignored them?

 

Thirdly: What does the setting aside actually entail, what will I need to do, apart from fill in forms (will I need to go to court?), and thereafter, will that be it? I know I owed the money to RBS, but I am also well aware that if Connaught have purchased the debt, which I suspect they have, then they will have bought it for less than a quarter of what the actual debt is...and therefore I'd be willing to pay them no more than a quarter of the debt in order to get them to shove off...that said, would that kill the debt in its entirety? I do not want this coming back on me. Will they be able to pursue me for the remainder at some point in the future, or will promissory estoppel apply?

 

Lastly, what happens if the application is not set aside...does it automatically go forward for insolvency? I simply can't risk that, and would rather negotiate to pay the debt (no more than I indicated above), than have to go to court for insolvency issues.

[ElevatorFour]

Oh...a couple of other questions (sorry!).

 

1. How do I know which court to go to?

2. I don't recall getting a CCJ for this debt, but what happens if there was one?

[ElevatorFour]

Another thing...if it goes to a bankruptcy hearing, I presume I'll be able to stop all that simply by paying the entire sum? That'll peeve me, but my future career wouldn't stand me being a bankrupt and I'd end up unemployed!

[ElevatorFour]

I keep thinking of other questions! Sorry...

 

The creditor is listed as 1st Credit, with an address...who do I sent the CCA request to? Them, or Connaught?

[nicklea]

Thanks so much for the information...

 

A couple of other questions, having read the information on this forum: the letter arrived with the rest of my post yesterday, no postmark or stamp...but it was definitely delivered by the postman. Aren't these things supposed to be hand delivered or delivered by first class post?

 

They aer SUPPOSED to attempt personal service first - see what was put in point 6 of the application in the post above

 

Secondly, if I ask them for a CCA aren't I just acknowledging them, when thus far I have ignored them?

 

By all means, just leave off sending the cca letter, there are so many things in the set aside application that you don't need to do it as well. Just send them this letter instead:-

 

The Loan Company

 

Dear Sir/Madam

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

Acc/Ref No xxxxxxxxxxxxxxxxxxxxxxx

 

You have contacted me regarding the account with the above reference number, which you claim is owed by myself.

 

I would point out that under the Limitation Act 1980 Section 5 “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

 

I would also point out that the OFT say under their Debt Collection Guidance on statute barred debt that “it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period”.

 

Any alleged payment of this alleged debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed.

 

The OFT Debt Collection Guidance states further that “continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970”.

 

I await your written confirmation that this matter is now closed and that no further contact will be made concerning the above account after that last letter.

 

I look forward to your reply.

 

print your name but don't sign

 

Thirdly: What does the setting aside actually entail, what will I need to do, apart from fill in forms (will I need to go to court?), and thereafter, will that be it? I know I owed the money to RBS, but I am also well aware that if Connaught have purchased the debt, which I suspect they have, then they will have bought it for less than a quarter of what the actual debt is...and therefore I'd be willing to pay them no more than a quarter of the debt in order to get them to shove off...that said, would that kill the debt in its entirety? I do not want this coming back on me. Will they be able to pursue me for the remainder at some point in the future, or will promissory estoppel apply?

 

After you hand the court forms in you will be given a court date and it really would be in your best interests to attend in person - otherwise the judge might think that you're not serious about wanting it set aside.

 

It's not really scary though, most of the time these things are heard in the judges office rather than the court itself - so it's just everyone sat behind desks.

 

The other side may or may not turn up to oppose the application. It's always worth assuming the worst and that they will turn up - but don't worry

 

When you go along on the day, the judge will ask you the reasons why you want it set aside. You don't need to prove to him that the debt is unenforceable or that it is statute barred you just need to prove to him that the debt is genuinely disputed on substantial grounds so that there is a triallable issue.

 

If the other side turn up he will also hear them as well. He will then make his decision and tell you there and then what it is. If it is set aside then that is the end of the matter and you will also get a letter a couple of days later confirming what was said.

 

That is then the end of it as far as bankruptcy goes. Although I did say "if" it is set aside I would suggest that it is probably a 99% certainty - nothing is ever absolutely certain in a court.

 

Lastly, what happens if the application is not set aside...does it automatically go forward for insolvency? I simply can't risk that, and would rather negotiate to pay the debt (no more than I indicated above), than have to go to court for insolvency issues.

 

If it isn't set aside - but that is such a small probability - then they would much prefer that you negotiate as well, as there are some big costs involved in making someone bankrupt and there's no guarnatee that they would ever get their money depending on what other debts and assets you have.

 

Afterwards they may well still try to come after you for a CCJ through the county court, but given that it's probably statute barred by now then they won't have much chance - but if that does happen just come back and shout.

 

1. How do I know which court to go to?

2. I don't recall getting a CCJ for this debt, but what happens if there was

one?

 

1 Just take it to your local county court - either nearest your home or work - whichever is easiest for you to get to during the day

2 They would have applied for a charging order or attachment of earnings order instead as they are a lot more likely to get their money that way

 

Another thing...if it goes to a bankruptcy hearing, I presume I'll be able to stop all that simply by paying the entire sum? That'll peeve me, but my future career wouldn't stand me being a bankrupt and I'd end up unemployed!

 

IF it goes that far - then you will need to show that you can pay off ALL your creditors not just them. But they won't want to take it that far if they can get you to make some payments to them beforehand

 

The creditor is listed as 1st Credit, with an address...who do I sent the CCA request to? Them, or Connaught?

 

Instead of the cca send the letter above to whoever is named as the creditor on the SD

 

hope this helps

[ElevatorFour]

Thank you so much Nicklea, you have NO idea (or maybe you do), how much your assistance is appreciated.

 

Just for the record, I don't have any other debts...this was the only one that I reneged on, (bad move on my part, although I have some reasons that led to it, I do fully acknowledge my own responsibility in the matter - hence being somewhat willing to pay some of the re-sold debt, but not all of it as it has been sold on for a fraction of what was owed). The remainder of my debts from the same period I paid, and now have an excellent credit rating, and pay off my credit cards in full each month. I have checked my credit file and no one but me has checked it in the past year, and there are no adverse marks on it.

 

I've prepared all the paperwork today, and will take it to my local County Court on Tuesday (bloody bank holiday!).

 

Thankfully, due to the extremely helpful people on this site, I haven't lost a wink of sleep over any of this.

 

Again, your assistance (and everyone else who responded) has been invaluable and much appreciated.

 

I will update as things progress...and no doubt be back for more assistance!

[ElevatorFour]

Just another quick query before I go to the court tomorrow:

 

1) am I right in thinking it has to be a county court? We don't have one in our immediate area, do I just go along to the next nearest one? A magistrate's court will not do?

 

2) The debt is almost certainly statute barred - do I make reference to this in my application to have the SD set aside?

[ElevatorFour]

Anyone?

[miss muppet]

Hi Elevator, I went to my local county court and they gave me the telephone number for the nearest court dealing with things, we then took it to that court to swear an affadavit in front of the legal person, easy process, no cost and over in a couple of seconds.

[miss muppet]

oops, sorry should have said thats for the set aside application.

[ElevatorFour]

Anyone able to answer the second question...it's the most important one, and I've put off going to the court (which by the way is the local Magistrate's - I called them to ask), but need to get along there tomorrow morning as they only have a 30 minute slot each day that they allocate to swearing affidavits...

 

Would be really helpful if someone could tell me whether I need to add that the debt is statute barred to the 6.5 form?

 

Cheers

[nicklea]

By all means add it to the list, say something like

 

I also believe that the respondant is barred from bringing any action due to s5 Limitation Act 1985

[ElevatorFour]

Thank you very much!

 

Will have to go there later in the week now, but I'm still well within the 18 days so it should be fine.

[ElevatorFour]

Is it possible to post (recorded delivery) an application to have a statutory demand set aside? The affidavit has already been done.

 

Just curious.

Edited June 3, 2008 by ElevatorFour
NQ