CapQuest/HBoS Statutary Demand

[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.

[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.

[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