CapQuest/HBoS Statutary Demand

[babybear39]

Subscribing...Hi Vampyra *hugs*

[Vampyra]

OK I've contacted the court and got the set aside forms, which has no provision to change the court.

 

Sent a complaint letter to CrapQuest who sent me another copy of the CA which several people have said is unenforcable. CrapQuest think it's good to go. But surely, if they bankrupt me, they won't get any money from me?

[babybear39]

They won't bankrupt you 'cos you have no assets and it'll cost them a LOT of money. It's an empty threat, ignore it. But Do get the SD set aside.

[nicklea]

OK I've contacted the court and got the set aside forms, which has no provision to change the court.

 

Have crapquest actually filled in the bit on the SD about which court to take it to?

 

If not then just take it to your local county court (unless you live in London). If they have filled in the address of the court on the SD then you simply put in your affadavit that they have put down the wrong court and that your local court is the correct one because of section 6.9(2) Insolvency Rules 1986 which say that it should be heard at the court for the area that you have been living or working in for the majority of the last 6 months

 

link here:-

 

http://www.insolvency.gov.uk/insolvencyprofessionandlegislation/legislation/uk/insolvencyrules.pdf

 

 

Sent a complaint letter to CrapQuest who sent me another copy of the CA which several people have said is unenforcable. CrapQuest think it's good to go. But surely, if they bankrupt me, they won't get any money from me?

Depends on your assets and other debts. If you have enough assets (eg equity in house, expensive car etc) to pay off all your debts or a reasonable proportion of them then they will get their money or a reasonable proportion of it.

[Vampyra]

NO I haven't worked for 6 years, do not own where we live, no car, nothing they could have off of me. I'm a full time carer.

 

Yes they have filled that bit in about which court to go to. I phoned that court which isn't that far from me but not local, and their set aside forms are for their court only. Should I get an affidavit from my court to fill in and send back, stating that is the correct court, not the one CQ chose?

 

I'm quite worried about the CA - it's the same one I've banged on about for a long time. The page I signed only has the APR on it, the sentance stating the limit and repayment terms are on another piece of paper called Terms of Use. They origianlly sent me the CA with the Terms of Use on the back, but they have sent me two copies of the CA now with no Terms of Use on the reverse.

 

I've been told it's a mailer application.

[42man]

Use these forms in this thread which can be used for any court apparently...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/132060-connaught-collections-bankruptcy-help.html

 

Vamp....it might be worth possibly sending a SAR request to the OC....get them to disclose, default notices, notices of assignment, letters before action.....

 

The defences are similar to the CCJ defences....obviously your situation is such that how can you make a defence without the disclosure, if there are excessive charges that is alos a good set aside argument as well as non prescribed terms....

 

Pick and choose out of this standard one....

 

The build up to this action

 

5. In the build up to this action, I had raised a formal dispute with XXXXXXX. on the xx/xx/2007 I wrote to XXXXXX requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the xx/xx/2007. (A copy of the correspondence is attached to this defence marked CP)

 

6. On xx/xx/2008 the claimant supplied a copy of an application form, annexed to this defence marked exhibit CP2, which was of extremely poor quality and contained none of the terms required by the Consumer Credit Agreements Regulations 1983. Accordingly I wrote to the claimant setting out the issues

 

7. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received

 

The Request for Disclosure

 

8. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

9. To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person ( a copy of the request is attached to this Defence marked CP)

 

 

The importance of a copy of the credit agreement and its production before the court

 

 

10. Firstly, I make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch),

 

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

 

 

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

11. The message clearly from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the consumer credit Act is clearly enacted to protect consumers such as myself and therefore the claimants failures to supply the information and their behavior in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence

 

 

 

12. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the consequences of such failings mean that the agreement is rendered unenforceable by section 127(3) of the Consumer Credit Act 1974

 

13. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

14. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

15. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

 

16. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. They cannot be found in a secondary document as according to section 61(1) (a)(b) &©, the agreement must at the time it is laid before the debtor contain all the terms of agreement

 

17. Furthermore, section 2 of the Consumer Credit Agreement Regulations 1983 clearly states

2 Form and content of regulated consumer credit agreement

s

 

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it relates to the type of agreement referred to in Column 1.

18. Furthermore I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

"33 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 (with the benefit of legal advice if necessary) 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. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

19. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

20. Notwithstanding point 15, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

The Courts Power of Enforcement

 

21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

22. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

23. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act.i refer to the judgment of Lord Nicholls of Birkenhead below....

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

24. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

25. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

26. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

27. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956,as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts

 

28. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

29. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit CP xxx) unenforceable.

 

 

The Need for a Default notice

 

30. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

31. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

32. Notwithstanding point 31, I put the claimant to strict proof that any default notice sent to me was valid. I 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)

 

33. 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 a 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

 

 

34. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

35. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce a compliant credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998

 

36. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

37. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

 

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

[Vampyra]

Thank you very much for that. Yes I have SAR the OC.

 

I'll PM you the thread with the CA and the reverse Terms of Use - surely even if they are on the other side, they are not in the single document, because it's headed as something else?

[42man]

Vamp, I was just reading your old thread, when Peter Bard commented on it saying that it MAY be enforceable but only with a court order....I think using case history may help, but it may not be enough to stop it, however the excessive charges + 8% compounded interest coupled with the possibility the defaults, notices of assignment, letter before action weren't correct also....

[Vampyra]

So, how do I word this for the set aside, as I am extremely confused. I also care full time for mum who is suffering severe Alzheimer's and physical disabilities. My time is so short to deal with these things.

 

Maybe there is someone on CAG who can advise/help me?

 

I've not got the money, I own nothing so I don't know how to proceed.

Many thanks

[Vampyra]

Just tried speaking to my local court and they don't do bankruptcy and the court I've contacted is the nearest one! I one I originally contacted wouldn't really talk to me about it when I asked for advice. I've been told to speak to the court as they will help..........Not this one!

[nicklea]

ok,

 

That may well be true. Most county courts do bankruptcy but not all - some of the smaller one's don't. For example, in an area not a million miles away from me, I know that Altrincham County Court don't do bankruptcy but all the nearby county courts do.

 

By the way - it does have to be a county court - magistrates courts don't cover this.

 

If you have a look here for a listing of all the courts in the UK you should be able to find the one nearest you that deals with bankruptcy (if you live in London the procedure is different) :-

 

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service - Court Information and Addresses) is not available

 

If you click on the 'Get Court Details' button on that website when you've found the closest county court to you.

 

When you do this you will see all the details about that particular court. There will be a box called work type and you just need to check that it includes bankruptcy.

 

These are the forms that you need to complete:-

 

 

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) 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 and the Unfair Terms in Consumer Contracts Regulations. 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.

 

2) 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.

 

3) No notice of assignment under the hand of the original creditor has been sufficiently served on me as is required by the Law of Property Act 1925. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

Section 196(4) prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

4) For the assignment of a debt to be effective and so giving the Respondant a right of action, a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before court action is commenced. It is denied that any notice of assignment was sufficiently served on me and so the Respondant has no right of action.

 

5) Notwithstanding the above, for a Notice of Assignment to be effective, explicit notice of assignment must be given by writing under the hand of the assignor (s136(1) Law of Property Act 1925). I further deny that any document given under the hand of the Assignor, HBOS, was sufficiently served on me.

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

 

To be honest, looking at your original thread on this, the agreement does look enforceable and, if they were to do everything properly then I believe that they would be bale to enforce this agreement.

 

I do believe that they won't go down the bankruptcy route as they have nothing to gain.

 

See how the set aside goes first.

[Vampyra]

Many thanks nicklea.

[Vampyra]

Just spoke again to the court concerned and they told me I should put in the affidavit that I have no assets, what does everyone think?

[nicklea]

Wouldn't do any harm and also mention that you are a full time carer and your only source of income is (sorry I don't know the proper name ofr Carers Allowance)

 

by the way here are the court forms in Word format if it's easier:-

 

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

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

[Vampyra]

Thanks nicklea - and yes it is Carers Allowance!

[Vampyra]

I'm off to court next week for a set aside on an SD from CapQuest.

 

I have only had printouts of an "account" from the OC and nothing else disclosed in the SAR.

 

My defence is here http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/147909-capquest-hbos-statutary-demand.html which I hope is ok.

 

Been told to just be honest which I will be but I'm not really sure what happens at one of these and I'm rather nervous. Can anyone help and advise me please?

[rory32]

Hi Vampy

 

The set aside is nothing to be scared of, so try to relax. If the account is in dispute (clearly it is) then no SD will be issued. You should also have a read of GaryH's excellent thread on SD's here

 

Have you applied for cost?

[Vampyra]

Hi Rory

Yes I invited the court to order cost in favour of me in respect of reasonable cost of preparing the application and attending any hearings in respect thereof.

 

Also, reading some other bits, if they didn't apply the Law and Property Act correctly and send a correct default notice, they have made a big boo boo, is that correct?

[rory32]

Yes a default notice needs to be served (served just actually means sent to you) before any legal action is taken under the Consumer Credit Act. However, the fact that you are disputing the amount owed due to charges on the account is in itself sufficient to obtain a set aside.

[42man]

Vamp...I haven't read through all your thread..BUT

 

Remember these...

 

You are totally disputing the debt and know nothing about it despite ....If you have made any payments they were made under duress after the collection agency frightened you into paying...

 

Common sense tells you that you have had no statements from the alleged OC ?? no default notices, (tell the judge this) any notice of assignment from the alleged original creditor...

 

It is not uncommon for debts to be made up entirely of excessive charges.

 

Have they supplied an agreement ?? If they haven't supplied any agreement (if they come up with something) then simply say...well I want to see statements...

 

Has the demand been served PROPERLY ? If not then the demand has NOT been served in anyway...just sent by 2nd class post, which is an abuse of process (THIS IS REALLY IMPORTANT) - then quote to the judge what Judge Warren (High Court Judge not a County Court Judge who are at a lower level... said in this case...

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

 

That - So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

 

 

As no attempt has been made to 'serve' the demand you believe this is a frivolous attempt to frighten me into paying when they have sent NO paperwork apart from a letter saying 'YOU OWE US THIS'.....You believe that this is a total abuse of the Insolvency service.

 

AND REQUEST THE JUDGE PAY YOUR COSTS !!!

 

Write these down on a sheet of paper and give it to the judge...and say 'Sir i'd like to gracefully request that you order the claimant to pay my costs as litigant in person'

 

 

LITIGANT IN PERSON COSTS

 

10 hours @ £9.25 - £92.50 (as an example)

 

PARKING -

 

PLEASE, PLEASE ASK FOR YOUR COSTS.....My own feeling is that nobody from Capquest will turn up...IF they do, and they want to talk to you...DO NOT ADMIT ANYTHING, and say you will agree to discontinue if they pay your costs....

 

They may have written a snivelling letter to the court saying that they want to discontinue....BUT if they have then they have NOT told you !!!! which is also an abuse....YOU MUST MUST MUST ASK FOR YOUR COSTS.....

 

Call the judge sir, dress smartly, speak slightly louder than normal and be FIRM but polite....

 

If for any reason it is turning pear shaped or they bring an agreement say 'I would like to request an adjournment to get the agreement checked by a legal expert - and ask the judge to reserve a decision on costs' - (this is a worst case scenario !!)

 

Quote the judge the Consumer Credit Act if he questions the non production of the agreement....

 

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

 

 

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

 

and section 78 for running credit

 

 

78.

Duty to give information to debtor under running-account credit agreement.

— (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the state of the account, and

 

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a)

he is not entitled, while the default continues, to enforce the agreement

 

 

----------------------------------------

 

If the judge disputes the Act (highly unlikely) because of the later amendments to the Consumer Credit Act....then simply say that as you believe it is a pre-2006 agreement then the Act was not amended on the above rule....

 

This is the piece that confirms it below...

 

PRE 2006 agreement legislation…

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

 

 

 

Version 1 of 1

 

 

 

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

 

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

 

Commencement

3.— (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

 

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007.

 

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

 

(a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

 

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

 

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007.

 

 

Ian McCartney

 

Minister for Trade, Investment and Foreign Affairs

Department of Trade and Industry

23rd January 2007

 

---------------------

 

If for any reason the judge doubts this....quote the Wilson vs First County Trust Case....

 

----------------------

 

If the judge throws this out then quote that the agreement MUST contain the prescribed terms...

 

------------------------

 

Seriously.....I really don't think you will need the Consumer Credit Act (but take along the parts I have highlighted above)....

 

It all depends on the judge.....but highlight the NON SERVED DEMAND AS AN ABUSE OF PROCESS....

 

RELAX.....the worst he can do is allow the stat demand to go through....which will mean they can petition for your BR....(worrying as it sounds....if it gets to this stage

 

I think you'll be pleasantly surprised when you go to court....just remember what you wrote in defence the stat demand.....

 

[Vampyra]

Thank you both.

 

I think the CA is a good un which means even if this is set aside I would gather they'll got for a CCJ - but if I can make it to next March the 6 years are up!

 

Would the judge mind if I took notes as I'm sure I'll never remember everything or at least get muddled?

 

I really do not have any original statements, I have never recieved a default notice and I have never received a notice of assignment from the OC.

 

The SD was sent via 1st class post - is that properly served?

 

I checked the paperwork I got from HBoS last night and the alleged debt is £1500 something, (forgive me my head is spinning with stuff at the mo), but about £100 of that is charges interest and payment protection. So it brings it down to £1400 something OC claiming for. CQ claiming £2200 something around £750 more than the alleged debt and this is what they have put on the SD.

 

HBoS not sent any other things except badly printed out what they consider "statements" and trust me, they say on them "statement date" and when to "pay by" which HBoS make it look like they have been sending out, but I have not heard from HBoS in years.

 

I also have a letter from HBoS saying they do not have to keep manual interventions on the account.

 

Plus this is the one which is served to Miss Vampyra WrongSurname! Surely, that wont help them?

 

Also, the CA which they sent originally has not been sent out again they keep sending a copy out with no T's & C's on the back *shrugs*

 

I have to admit I am scared. I've told no-one and I'm doing this entirely alone.

[42man]

It can only be served by 1st class post if they have failed to serve it by a process server but there would be an AFFADAVIT from a process server in the file....a judge will only allow susbtituted service (by post) if a process server has tried unsuccessfully to deliver the demand by hand ....give the court a call and ask them if there is an affadavit from a process server there (in the file)!!! if not then it's GAME OVER !!! they have served NOTHING on you !!! You don't even need to mention ANYTHING about the debt if the process has not been carried out correctly !!!! it is an abuse of process !!!!!

[Vampyra]

As far as I know noone has ever tried to serve anything by hand. Don't forget, I'm in most of the time because of caring for mum.

 

Even though I don't pay for day care, mum has had to go into day care on the day of the court case so could I claim for that too?

 

I'll ring the court now. Do they have to tell me?

[42man]

The procedure to get a statutory demand set aside.

 

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy.

One method of avoiding bankruptcy is to get the statutory demand set aside.

To successfully get a statutory demand set aside one or more of the following must be satisfied:-

• The amount stated on the statutory demand is disputed.
  
• The person issuing the statutory demand also owes money. This is called a counterclaim.
  
• The person issuing the statutory demand is holding security that equals or exceeds the amount owing.
  
• The demand was issued in error.
  
• The amount owing is less than £750
  
• Execution has been stayed on a judgement debt.
  
• The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.
  
• The creditor failed to comply with the rules and prejudiced the debtor in the process.
  

Why are Statutory Demands to powerful?

 

• The Statutory Demands procedure is simple to implement.
  
• To issue a statutory demand all you need to do is complete a form.
  
• You can send a statutory demand by recorded post, without the need of personal delivery.
  
• You do not need a solicitor to issue a statutory demand.
  
• You do not need to pay expensive court filing fees issue a statutory demand.
  
• People assume that a solicitor has been utilised so get scared and pay immediately.
  

[42man]

What are the time limits to get a statutory demand set aside?

 

An application to set aside must be made with 18 days of the statutory demand being served.