Hearing to have SD set aside**Set Aside**

[Vikingbird]

Right, the letters have been sent by recorded delivery with respective payments. Guess it's just a waiting game now. Sleepless nights full of worry and woe, here I come, yippeeeee!

[Vikingbird]

OK Largo, time's up! It's now been 14 working days from the date of my CCA to them and still nothing in the post. Of course, HSBC, whom I sent a S.A.R. to, have until 25 July (date of the hearing) to cough up but it's Largo, not HSBC, who are actually pursuing me for the debt, so it's they who should really supply the credit agreement, no? I'm not really sure what the best way forward is now. Is there any point in going ahead with the hearing? Should I write to the court and say that the creditor has defaulted on my CCA request and therefore cannot legally pursue or enforce the debt and thus the hearing is pointless? Or, alternatively, I attend the hearing, say to the judge that the creditor has not provided me with a credit agreement and then, lo and behold, Largo turns up with one in their hand anyway! Can they do that? What then? My husband went to court and had already requested a credit agreement, default notices etc numerous times and got nothing, absolutely nothing. The geriatric, barely awake judge didn't seem to think that mattered in the slightest and let the charging order stand anyway. Worse than useless!!! What do you think would be best for me to do now? Should I cancel the hearing or not?

[nicklea]

OK Largo, time's up! It's now been 14 working days from the date of my CCA to them and still nothing in the post. Of course, HSBC, whom I sent a S.A.R. to, have until 25 July (date of the hearing) to cough up but it's Largo, not HSBC, who are actually pursuing me for the debt, so it's they who should really supply the credit agreement, no?

 

That's right, if largo have sent you the SD then they should have the credit agreement

 

I'm not really sure what the best way forward is now. Is there any point in going ahead with the hearing?

 

Yes, because otherwise they can apply to make you bankrupt!

 

Should I write to the court and say that the creditor has defaulted on my CCA request and therefore cannot legally pursue or enforce the debt and thus the hearing is pointless?

 

The whole point of the hearing is to demonstrate to the judge that they are not entitled to pursue the debt. If they WERE entitled to pursue the debt THEN the hearing would be pointless as you wouldn't have any grounds for getting it set aside.

 

Or, alternatively, I attend the hearing, say to the judge that the creditor has not provided me with a credit agreement and then, lo and behold, Largo turns up with one in their hand anyway! Can they do that?

 

They could, but to be honest it's highly unlikely. I doubt they will turn up at all, let alone with all the correct documentation.

 

 

What then? My husband went to court and had already requested a credit agreement, default notices etc numerous times and got nothing, absolutely nothing. The geriatric, barely awake judge didn't seem to think that mattered in the slightest and let the charging order stand anyway. Worse than useless!!!

 

If you have had a charging order then that means that you have already had a CCJ. You would need to apply to get the CCJ set-aside.

 

 

What do you think would be best for me to do now? Should I cancel the hearing or not?

 

 

See above, if you don't go to the hearing then they can apply to make you bankrupt.

[Vikingbird]

Thanks for your reply! I'm a member of a union and as such I'm entitled to free legal advice. I just called them and told them what had happened, and as usual, they were all doom and gloom and not optimistic about my chances. I realise they've seen none of the correspondence between me and the creditor and can only give me general advice but still.....you'd think they'd know a bit more. I told them that the creditor had defaulted on my CCA request and that without a valid credit agreement they were not legally entitled to pursue or enforce the debt. They kept arguing that in court the creditor may use it against me that I have kept paying the debt and that at some point there must have been an agreement when I first got the credit card. If I claim that they can't pursue this debt, why did I keep paying it and so on and so on. I guess I can see what they mean, but until recently I had no idea whatsoever about the importance of a valid credit agreement. I just took it for granted that I should keep paying because it was the right thing to do. More fool me! I have a good mind to ask that the hearing be adjourned and that the judge orders a full disclosure of documents. That might give me some time to understand this better cos I'm getting more confused by the minute!. After speaking to the legal bods I almost got the impression that this credit agreement I requested, or more to the point; the importance of it, is just a smokescreen and that if I try to use that as a defence I'm clutching at straws! I guess, at the end of the day, what I'm disputing isn't the debt itself, of course I know it exists and why and I have received a proper notice of assignment, I'm disputing whether this creditor can legally pursue it without a credit agreement. Is that enough? I'm really not having high hopes about this hearing:( and feel I've wasted my time asking for the SD to be set aside. I should've left well alone! They also advised me to look up Court Procedure Regulations on the Internet. I might try that but have a feeling it'll be another dead end. They also said to go to the CAB but I'm not sure whether thay are specialists in this sort of thing or if they'll just get their info from the internet, like anyone could do.

[nicklea]

I told them that the creditor had defaulted on my CCA request and that without a valid credit agreement they were not legally entitled to pursue or enforce the debt. They kept arguing that in court the creditor may use it against me that I have kept paying the debt and that at some point there must have been an agreement when I first got the credit card.

 

Just because you were paying a debt voluntarily doesn't mean that it is enforceable

 

If I claim that they can't pursue this debt, why did I keep paying it and so on and so on. I guess I can see what they mean, but until recently I had no idea whatsoever about the importance of a valid credit agreement. I just took it for granted that I should keep paying because it was the right thing to do. More fool me!

 

Same as the rest of us before we came here. I ended up paying a debt that was actually statute barred when I didn't know anything about this site.

 

I have a good mind to ask that the hearing be adjourned and that the judge orders a full disclosure of documents. That might give me some time to understand this better cos I'm getting more confused by the minute!.

 

You don't need to do this. THe whole point is that you just need to show the judge that there is a real dispute over the debt. If there is no dispute to the debt then they can make you bankrupt. All you have to show the judge is that there is a dispute and that is enough. You don't need to prove your case, you just need to show that there is enough of a case to warrant having a proper court case about it to hear the issues.

 

Bankruptcy can only be used where there is absolutely no dispute as to the debt.

 

 

 

After speaking to the legal bods I almost got the impression that this credit agreement I requested, or more to the point; the importance of it, is just a smokescreen and that if I try to use that as a defence I'm clutching at straws!

 

Well, these "straws" were considered very important by the Court of APpeal and the House of Lords.

 

Who would you listen to - the most senior judges in the country who actually decide these cases, or some one on a telephone helpline who said that they don't really know anything about it?

 

I guess, at the end of the day, what I'm disputing isn't the debt itself, of course I know it exists and why and I have received a proper notice of assignment,

 

Wow - you're the first person on here who seems to have had a notice of assignment served properly!! So it was given to you personally or it was posted by recorded delivery or special delivery?

 

I'm disputing whether this creditor can legally pursue it without a credit agreement. Is that enough? I'm really not having high hopes about this hearing:( and feel I've wasted my time asking for the SD to be set aside. I should've left well alone!

 

Without an agreement they don't have a leg to stand on. Otherwise I could just go to the court (if I knew your name and address) and make a claim against you for whatever amount of money I felt like. There must be a proper agreement in existance.

 

They also advised me to look up Court Procedure Regulations on the Internet. I might try that but have a feeling it'll be another dead end. They also said to go to the CAB but I'm not sure whether thay are specialists in this sort of thing or if they'll just get their info from the internet, like anyone could do.

 

 

CPR actually stands for Civil Procedure Rules and you can find a link here:-

 

CPR - Parts and Practice Directions

 

However, it is becoming obvious that these people you spoke to don't really seem to know anything about this as it's NOT the CPR you need to know about in this case but the Insolvency Rules instead.

 

I couldn't comment on the CAB but others have said that (generally) they're not particularly helpful.

 

however, one other body, if you do want to talk to somebody is the National Debtline here:-

 

National Debtline, for FREE CONFIDENTIAL and INDEPENDENT ADVICE call 0808 808 4000

 

You can call them for free

[42man]

ok Viking when is the hearing date ?

[Vikingbird]

42man, the hearing date is on 25th July 08.

 

Nicklea, if I remember correctly the assignment notice was just sent by regular post but it is a while ago now (Oct 07) so I couldn't swear to it. It certainly wasn't by hand. Does that make a difference?

And am I to understand then, that even if there obviously was an agreement in place at some point (otherwise I wouldn't have been issued the credit card) and I've kept paying what I can afford and I'm not disputing the debt but none of that matters as long as the creditor can't produce this credit agreement? I've heard elsewhere that this argument only stands it there is a dispute as to the debt.

[42man]

A debt can be disputed at any stage, especially as you now know your rights....

 

Seriously you really don't want to go bankrupt (unless you have very little to lose) I would always fight a forced bankruptcy.

 

It means you don't get a grilling from the official receiver who give you a big book to fill in with some searching questions, and then they take the book away from you and go through each question with you to make sure what you have written is the truth.....

 

Then they appoint a trustee who adds a 20% fee on top of your debts....any excess income you earn will also be considered and a percentage of it will go towards paying off all your debtors including the trustee too !!!

 

Seriously Viking you need to look at ALL avenues to dispute the debt.....especially as Largo have been completely unreasonable and not accepted your payments and have decided to try and make you bankrupt.....

 

You need to submit your defence 7 days before the hearing one copy to Largo/ or their solicitors and one to the court.

 

2 -Perfection of the assignment.

 

2.0 I have not received a notice of assignment

 

2.1 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

3.1 Since the claimant explicitly states the notice was “sent” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

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.

 

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the statutory demand, and therefore any assignment was not perfected in law at the time.

 

4 - I am disputing the debts claimed by Largo despite making payments under duress.

 

4.1 I believe there are no properly executed signed Consumer Credit Agreements, If they had been able to supply these agreements then they would have done already to avoid committing an offence under section 78 (1) of the Consumer Credit Act

 

 

4.3 Under section 78 (1) of the Consumer Credit Act A formal written request for any true copies of any signed Consumer Credit Agreements was sent to Largo via guaranteed delivery on the (xxxxxxx) to date they have not sent any copies of any Consumer Credit Agreements and have committed an offence under section 78 (1) – (see attached documents labelled 2 - this should refer to your CCA request letter and recorded delivery slip)

 

SECTION 78 (1) CONSUMER CREDIT ACT

 

(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 £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.

 

 

The Consumer Credit Act in section 78(6) States that

 

(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; and

 

(b) if the default continues for one month he commits an offence.

 

At no time has a credit agreement provided in evidence, and I have not been supplied with a copy of the credit agreement despite my legal rights.

 

4.5 -. If the agreement is, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the statutory demand was issued.

 

REFERENCE TO CASE LAW

 

• As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:
  

• 
  ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’
  

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

 

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.

 

 

 

 

 

 

 

 

4.6 -.I therefore request that the court order the respondent to supply an original copy of this document, and of any proof that a notice of assignment was sent in the prescribed manner and not returned, and of any proof that a default notice was served on me.

 

I have also made a Subject Access Request to the alleged original creditor, who were obliged to supply all the relevant paperwork including (but not limited to) statements for the account for the duration, copies of default notices, notices of assignment. Under rules outlined by the Information Commissioners Office, the date for complying with my request was XXXXXX to which I have not received anything.

I gracefully request due to the facts above that the Statutory Demand is either set aside or dismissed.

Statement of Truth

 

 

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

 

 

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

 

Date

[42man]

Scrap point 36....

[Vikingbird]

Thanks 42 man. It doesn't say anything at all in my hearing letter about submitting defence 7 days prior. Weird. So even if I received a notice of assignment, although by regular post, I can argue that I didn't, just because it wasn't by hand or by registered post? Would the notice I received be deemed to be ingenuine? I'm just worried that the judge will think it sufficient that I have an "awareness" of it being assigned, no matter how it was served. Have set up a meeting with the CAB, I guess it's worth a try. Will bring with me the text template for defence you sent and see what they have to say. I've got nothing to lose.

[42man]

Believe me you now know more than what the CAB probably know !!!....the notice of assignment doesn't have to be delivered by hand....but if you link it with the law of property.....the non production of the Consumer Credit Agreement should be enough for the judge to set aside or dismiss the stat demand....as you can see there is case law from the HIGH court which the lower county courts must adhere to.....

 

Take what I have written above and see what they say...

[Vikingbird]

Perhaps it might be best to omit the stuff about the notice of assignment, or at least edit out a few bits, like point 2.0 - I have not received a notice of assignment. My argument could be that the notice I did receive wasn't properly served. It would be quite clear to anyone that I must have received something otherwise how would I know who to keep paying to and who to correspond to? Is the argument that it wasn't properly served really sufficient? Would a judge really believe that? Point 3.1 says the claimant has exlicitly stated that the notice was "sent"....Well, to my knowledge they haven't explicitly stated anything of the sort, so I'd have to re-write it a bit. There are a few other paragraphs that wouldn't be entirely accurate in my case and I'll amend them accordingly. I have definitely not received a default notice from this creditor so I'll leave those bits in but won't I compromise myself somewhat if I enter the date the agreement commenced in point 37? Do I really want them to know that I know what it is? Or is this a date the creditor should have informed me of had there been a default notice? My real worry is that I won't be able to find sufficient grounds to dispute the debt. And as I've said before, what I'm really disputing is Largo's legal entitlement to pursue it. I know I sound like I have a bit of a defeatist attitude here but I'm just trying to prepare for the worst case scenario. What if the judge asks: "why have you suddenly decided to dispute the debt and on what grounds?" "Why have you kept making payments towards a debt that you are disputing?" "Was there ever an agreement?" This is the sort of stuff that's going to catch me out and I've already said in my affidavit that I am aware that there is a debt but that I was disputing the amount as I wasn't sure how much of it was merely unlawful charges. DOH! I have basically already broadcasted and advertised the fact that I agree I owe them money. That was before I was aware of the need for a credit agreement but I'm not sure whether that is a defence. Will the judge really care if Largo hasn't produced a credit agreement when there so obviously was an agreement between me and HSBC at some point? I do think it would be sensible to ask for an adjournment of the hearing at this stage as the 40 days for HSBC to respond to my S.A.R. runs out on the day of the hearing. That might be too late if I have to submit a defence 7 days prior. How would I go about asking for an adjournment?

[42man]

Your notice of assignment does NOT have to be 'served' apart from by post....using the LOP gives another angle....your CCA argument is far stronger as it has higher court law to support it...

[Vikingbird]

I'm really sorry to keep harping on about this but I've never been up against something like this before and want to be as versed up as possible. Would it be best to omit everything about the notice of assignment altogether then and just use the CCA and default notice argument as defence instead? At least I know for sure I have not received anything like that from them. In any case I'll have to ask for an adjourment, just in case HSBC coughs up anything. Do you know if they have 40 working days or 40 calendar days to respond? Another thing I find worrying is that it is not mentioned anywhere in my letter from the court about the hearing that I need to submit a defence 7 days prior. If you hadn't said, I'd be completely oblivious to it!

[fast_n_furious]

I am in the same situation as you!...a 'set aside' hearing for a stat demand at the end of August and there is no info in my letter from the court about submitting a defence!

 

I actually called the court on Friday to ask if I need to send in any paperwork before the hearing and was told to bring it with me on the day.

 

Although I have heard from the solicitor that they do not object to the 'set aside' and will not be attending court.

[Shawn0109]

Vikingbird I also am in the same situation as you right now got my hearing on the 26 August which I'm not looking forward to, and with having Cancer and all it just doesnt help matters to me as I find I'm under enough stress worrying about my health than anything else, I also am trying to get as much information as possible to get this SD set aside or struck out I have sent so mant times now to the dca a request for a CCA but nothing from them at all I did yesterday send of for an S.A.R to the RBS so will see what they turn up if anything, I dont know if I should also ask for adjourment also or if I should keep on going with it, I hope all works out for you, keep me posted on any updates.

[miss muppet]

I don't think I'd apply for an adjournment Shawn, think they will have had all the time they need in which to comply with your CCA and SAR requests, attending set aside with daughter next week, made sure I have got all the legal arguements typed up in a Background to the case, just seen an excellent example by 42 Man to-day, have got all copies of correspondence, one lot for Judge and one for us.

Its also worth complaining to your TS and the OFT, the OFT are looking at various DCA's Consumer Credit Licences right now, using an SD as a means to forcing debtor to pay is an abuse of court process.

Hope Cancer treatment is going OK, you could do without all this right now but thats the way it goes unfortunately, it happened to me four years ago.

[Vikingbird]

Thanks for that Shawn, I really hope it works out for you too! This situation sucks big time, doesn't it? I think these DCAs really count on people not being aware of their rights and will always try to pull a fast one in often unnecessarily aggressive ways. They love using scare tactics and don't care how it might affect people! You take for granted that they are right, you try to do the right and reasonable thing, comply with their requests, respond to their correspondence, make offers of repayment, keep making payments like a good doggie and then.....WHAM! They threaten to make you bankrupt and treat you like you're a petty criminal! They make it look like they have the law on their side, they've got you over a barrel and that you don't stand a chance against them and that you'll just roll over. But...after discovering CAG, perhaps it really only SEEMS that way. That's what they want us to think....but there might just be hope for us yet. One promising turn of events is that they have defaulted on my CCA request. Looking at the reference to case law, it doesn't matter whether they can prove the debt exists or not, without a valid CA, they can't legally recover the debt. That is really the bottom line. I hope the judge will see that too and that I'm not just deluding myself. They are supposed to be unbiased, after all (although sometimes one has to wonder if that's really the case:(). Gonna give the court a ring tomorrow and enquire about an adjournement. I've searched the Internet for a form to fill in for this but can't find anything. Good luck to you, Shawn (an keep me in the loop about your case too;))!

[Vikingbird]

Does anyone know if I need to fill in a particular form to request that the hearing be adjourned? I've done some more searching and still can't find anything but I'm sure I read on another thread that the Court won't see a "normal" letter as sufficient for such requests. And would it be enough if I say that my grounds for requesting an adjournment is that the deadline for the original creditor to respond to my S.A.R. expires on the date of the hearing itself and therefore would compromise proceedings as necessary and vital paperwork might not arrive in time for me to formulate a proper defence? Or shall I just throw caution to the wind and attend the hearing on 25 July anyway? It is, after all, Largo who are chasing the debt (not HSBC) and they have indeed defaulted on my CCA request.

[WebMaster]

Vikingbird is having trouble accessing this thread, but he's asked me to post the following. He'd like to know if the text is suitable as a request for an adjournment of the hearing

 

I respectfully request that the hearing on 25 July 2008 be adjourned to

a later date. The reason for my request is that the alleged original

creditor has 40 days in which to comply with an S.A.R. (Subject Access

Request), which will actually expire on the day after the hearing. As I

need to submit my defence to the court 7 days prior to the hearing, I

believe this might not give them sufficient time to comply and I am

mindful of the possibility of receiving the information I have requested

very close to or even on the day after the hearing itself, which would

be too late. The company that the debt has allegedly been assigned to

have already defaulted on my CCA request, despite my request being sent

by recorded means and has been confirmed delivered by Royal Mail. The

information requested would be vital in order for me to formulate a

proper defence and the case cannot be heard fairly without it. I

respectfully request the Court to consider adjourning the hearing to a

date between 12th August 2008 and 5th September 2008

[42man]

It would seem good to me....but that's my opinion only...

[Vikingbird]

I'm in the process of preparing my defence (assuming no credit agreement will be forthcoming) and just have a query re an example of someone else's defence which was posted on this thread by 42man. One of the items in the defence says: "34. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4" Maybe it's my eyes that are in the way here but I can't seem to find this part 3.4 anywhere. What is part 3.4? If I'm going to use this in my defence too, I'll need to know what it refers to or I'll look mighty stupid in court, should it be brought up. Does anyone know?

I have submitted my request for an adjournment by e-mail to the Court and was told that it may not be read until the day of the hearing itself. If I don't hear anything re a new hearing date, shall I still go along on the original hearing date anyway only to be told then that it has been adjourned? Does the creditor also need to submit to the court (and to me) what they will rely on in court 7 days prior, like I have to? The hearing letter I received from the Court doesn't mention the creditor AT ALL. Should their name not be somewhere on the letter? Does that mean it will just be a judge and myself present? The letter says the hearing's in the matter of the Insolvency Act 1986. I thought it was regarding having the SD set aside. Weird.

[beanpole]

Hi Vikingbird,

I'm just posting to a few others that I have been following....

 

I'm in a very similar position....L&R/Phoenix from HSBC assigned debts issued a personally served Stat Demand for payment, threatening bankruptcy proceedings, without having taken any other court action first.......except my set aside hearing is this Thursday (17th) !

I CCA'd L&R, nothing back yet....the 12+2 working days falls on Weds !

So I have argued a full defence on grounds of no documents....

 

Did you ever get a letter direct from Phoenix, or has it just been L&R ?

 

I will let you know what happens at Thursday's hearing and if they turn up !

 

Dreading any paperwork coming through the letterbox from them in next few days !!

 

Good luck with your case anyway.

Beanpole

[Vikingbird]

I hear you beanpole! Theoretically, anything can happen between now and when the 40 days are up. I must say though, that for each day that passes and I've received nothing, it's looking increasingly unlikely that anything will turn up. Still, can't help feeling nervous about it. At least L&R have definitely defaulted on my CCA request and that's good for me. I went to the CAB last week with a copy of my then 6 page defence and they said it was very good, they were going to fax it to the dept that deals with that sort of thing. I have since beefed this up to 12 pages! I also asked them why Largo's name wasn't on the hearing letter from the court and they said it would just be the judge and I present so that I can get a chance to put my side forward without Largo breathing down my neck. What does it say in your letter? Is Largo mentionet at all, cos they weren't on mine. As for receiving anything from Phoenix, no, all their correspondence has been on L&R headed paper. I'm getting more an more uncertain about submitting a defence 7 days prior. I can understand that the court might want to see it but do I really want L&R to know what kind of ammunition I have at this stage? They won't even be present at the hearing cos they're not invited. I didn't send them a copy of my application or my affidavit either. My affidavit was rubbish by the way. Completely shot myself in the foot there! But that was before I knew my rights and 42man said I could dispute a debt at any time. Things have changed since and I now feel I have grounds to dispute the debt. The most important thing was that it was lodged with the court before the 18 day deadline and that's all I cared about. Just hope I won't have the same experience in court as miss muppet. If the judge just read my defence, there'd be no need for me to say anything in court cos the defence says it all really. Looks like no matter how they slice it, there is one very important, vital ingredient missing in all this. And that's the credit agreement.

[beanpole]

Part 3.4 I think you refer to is under CPR, and is worth looking up !