Help - Statutory Demand Hearing

[smithy73]

HI All,

 

I applied to have a statutory demand set aside and have now received a hearing date. Unfortunately I am unable to attend on the date as i am on holiday. I have rang the court and explained I cannot make that day and they have said I need to write into the judge as soon as possible. I am actually away for nearly three weeks and I dont really want to put down a holiday as a reason for non attendance. Does anyone have any ideas what I can put down as a reason for non attendance.

 

Cheers CAGer's.

[smithy73]

BUMP

[42man]

I can't think of any reason to tell a judge that I couldn't make it to court, apart from being ill or having an operation on that day....!! It might be worth requesting an adjournment because you haven't received all the relevant paperwork from the original creditor for you to be able to offer a proper defence. Have you sent a S.A.R - (Subject Access Request) request off ?? What is the debt for ?? Are there excessive charges on the account ?? did you ever get notices of assignment ?? any default notices ?? have you requested a copy of your Consumer Credit Agreement ?? Did you ever receive a letter before action ??

Edited July 1, 2008 by 42man

[smithy73]

Hi 42man,

 

Yes i sent S.A.R. and they have written back saying that have requested the information from the original creditor (Barclaycard). There are excessive charges. Not sure if received default notice or letter of assignment and with reference to LBA I received a letter saying my home may be at risk and they were CONSIDERING issuing a SD. I requested a copy of the CCA in the S.A.R letter. I rang first crudit and asked if it was O.K. to try and move the date but they told me not a chance!!! I thought if they were O.K. with it the judge may be more helpful.

[42man]

Well if it was me in your position, then I would write gracefully requesting for an adjournment as you are still awaiting a full portfolio of paperwork from the original creditor by means of a Subject Access Request for the ALLEGED debt. And that you can't enter a proper defence without it. I can't guarantee this will work, but this is what I would do !! You could even attempt to say that the opposing side have not complied with your Subject Access Request to provide any copies of defaults, letter before action, no statements for the duration of the account as you believe there are a significant amount of excessive charges that have been added to the account, no copies of your Consumer Credit Agreement and that you have been unable to provide a proper defence. And also request that the judge defer costs too otherwise he may award the other side their costs too !!

 

As I said I may not be correct here, but this is what I would do...

Edited July 2, 2008 by 42man

[smithy73]

OK cherrs 42man!!

[smithy73]

Well if it was me in your position, then I would write gracefully requesting for an adjournment as you are still awaiting a full portfolio of paperwork from the original creditor by means of a Subject Access Request for the ALLEGED debt. And that you can't enter a proper defence without it. I can't guarantee this will work, but this is what I would do !! You could even attempt to say that the opposing side have not complied with your Subject Access Request to provide any copies of defaults, letter before action, no statements for the duration of the account as you believe there are a significant amount of excessive charges that have been added to the account, no copies of your Consumer Credit Agreement and that you have been unable to provide a proper defence. And also request that the judge defer costs too otherwise he may award the other side their costs too !!

 

As I said I may not be correct here, but this is what I would do...

 

Hi,

 

I still have not received any info back from 1st credit. They just sent a letter saying the CCA was retained by their client and they would arrange for it to be sent as soon as possible.

this was in response to my CPR letter as i need the paperwork to submit a defense.

Do i need to send them another letter reminding them?

[42man]

No, you have recorded delivery evidence of your request...but it isn't a CPR request you have made, it is a S.A.R - (Subject Access Request) request, Statutory demands are made under the insolvency act NOT under the civil proceudre rules. so basically if it was a CCJ they were going for then you could make a CPR request. you need to be clear to the judge in your absence about the debt being in dispute, non compliance with your request for a Consumer Credit Agreement, non production of notices of assignment, default notices, excessive charges that have been added....you need to be going for an adjournment saying you will be out of the country....the only slight worry is that if you request the adjournment is the costs to the other side (which I would ask the judge to do - i.e. request the judge gracefully reserve judgment on costs at this stage....).....you need to have a good read on all the threads about the reasons why you have requested full disclosure, due to non production of a CCA, excessive charges, non production of notices of assignment, default notices.....and add the reference to case laws for each..

[smithy73]

Thanks 42man. :grin:

[smithy73]

Is it forty working days or 40 cal. days to respond to a S.A.R.?

[42man]

40 calendar days, if they haven't produced it then send a reminder, if after a further 14 days they still haven't sent it, complain to the Information Commissioners Office...who as far as I know do compensate you...

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/subject_access_-_guide_for_data_subjects.pdf

[aloysiush]

If you do not turn up, the chances are your application will be dismissed and they then proceed to issue a bankruptcy petition. If you cannot make it, employ a solicitor to attend. He can prepare a statement to be disclosed prior to the hearing as to why the demand should be set aside.

 

All you have to show is that the debt is in dispute (and the dispute is genuine). Demands should only be served when the debt is undisputed. Iam sure you can show it is disputed. A failure to respond to a S.A.R - (Subject Access Request) request is not a dispute per se, but a failure to provide evidence of debt is. Please post the 'particulars' section of the demand and I will tell you whats wrong with it, if anything.

 

Do not allow the hearing to proceed without you or your representative being present - under any circumstances. Bankruptcy is serious - all your debts fall due to be paid at once and your home will be at risk!

 

By the way, if you succeed in setting aside, they pay your costs!!

Edited July 18, 2008 by aloysiush
grammar

[smithy73]

Hi Aloysiush,

 

Particulars of debt as follows:

 

The debt relates to sums due under account number XXXXXXXXX with Barclaycard. The debt was assigned to the creditor on the XXXXXX. The amount due as at the date of this demand is £XXXXX.

 

Should it not state which creditor it as been assigned.

[citizenB]

Would it be the people who have issued the claim ?

[smithy73]

Would it be the people who have issued the claim ?

 

No, this is what it said on the back of my stat demand, last paragraph titled "Particulars of debt".

 

My bros is a ccj claim form.

Edited July 22, 2008 by smithy73
missed some info

[citizenB]

Aha, sorry. I have no knowledge of either so am unable to help you.

[aloysiush]

The particulars are inadequate. It should at least have the date of the agreement and date of default/notice.

 

Full details of the assignment should be contained on the 3rd page.

 

The demand should be served personally (an attempt should be made) and thereafter by putting it thro' your letterbox (substituted). Putting it in the post, with no personal attempt is unnaceptable. If in the post, they are unlikley to attempt to proceed to bankruptcy, but take no chances - see a local solicitor for some free advice re: setting aside. If you can show a dispute, it will be set aside.

 

Good luck.

[smithy73]

Thanks Aloysiush!

 

Going to defend this one personally thou, they have got my back up!

[smithy73]

Is the fact they have not supplied with me a CCA still enough to put this into dispute as that was what I was using in my defence. Also that the account has unlawful penalty charges and fees.

 

thoughts??

[citizenB]

It is my understanding to enforce the debt in court they would have to produce the document and I guess you could counterclaim for the unlawful fees/charges

[smithy73]

thanks CB.

[citizenB]

[citizenB]

Any news on this smithy ?