When is a Statutory Demand not a Statutory Demand under Insolvency Act 1986?

[carman]

Hi everyone.

 

1st Credit must have been very busy this week, I have also received a Statutory Demand from 1ST Credit (finance) Ltd for an Mbna debt assigned to 1st Credit.

 

Now I don't recognise this Mbna debt and they have not included any particulars, apart from the sum, in their petition.

 

As I am very angry at being sent an Insolvency Petition when no-one has even contacted me to find out if I am the right person they should be chasing I want to CCA them but also to have it immediately set aside.

 

However when I checked Part A of the Demand that is meant to have the relevant details to have it set aside I find the following:

Part A

Appropriate Court for Setting Aside Demand

 

Rule 6.4(2) of the insolvency Rules 1986 states that the appropriate court is the court to which you would have to present your own Bankruptcy Petition in accordance with Rule 6.40(1) and 6.40(2). In the accordance with those rules on the present information the appropriate court is

[YOUR LOCAL COUNTY COURT]

 

Any application by you to set aside this demand should be made to that court.

 

FOR CONFIRMATION OF YOUR RELEVANT COURT, OR IF YOU BELIEVE YOU HAVE GROUNDS TO SET ASIDE THIS DEMAND, PLEASE CONTACT OUR OFFICE ON 0208 253 0343.

 

Now I need an expert on Statutory Demands to help me here. Is this Demand complete b******s or can 1st Credit really send a Demand without naming a Court? If so how am I meant to get it set aside?

 

Or is it as it appears to be, a ruse to get me to phone them and 'fess up to an imaginary debt?

 

 

Carman

Edited July 18, 2008 by carman

[miss muppet]

Yes, you must CCA them, send £1 postal order and don't sign the letter.

 

Download form 6.5 from the internet, use Tomterm's short version or the longer one which you can see by typing in Me v 1st Credit Gary H on the search bar and adapting as necessary. Then you find out from your local county court where you should take it to be sworn and take it in personally and swear it in front of legal clerk, make sure you get a copy and whether it is your responsibility to serve/send this to them or the Court's. They might charge for a copy but the hearing will be free. If you read around the forum, you'll see plenty of advice on this. It takes a while for the hearing to be set but if they haven't complied but are still inside the time limits, you may have to apply for adjournement in order for them to do so. Good luck and keep us posted.

[carman]

Thanks for the reply.

 

So just to check a few things that are not clear on the other threads:

 

A Statutory Demand does not have to name a Court.

 

A Statutory Demand does not have to be served and back dating it(which they've done) and sending in the post is now regarded as OK.

 

Even though they have no proof of me receiving it they can still go ahead.

 

A company can bring a Statutory Demand without ever contacting you before the Demand.

 

You can apply to have it set aside because it is disputed and you have to contact the company for proof of their claim under the CCA.

 

They must prove their debt staisfactorily before the hearing or can they bring their proof to the hearing?

 

If they cannot proove the debt the Demand (and Bankruptcy proceedings)should be set aside (but this down to the Judge)?

 

When the Demand is set aside the Insolvency Petition is automatically staid?

 

Because they are bringing a Statutory Demand without proof you can claim hearing costs including a day's wages?

 

I just wanted to be clear of the procedures before I act.

 

Carman

[miss muppet]

Thanks for the reply.

 

So just to check a few things that are not clear on the other threads:

 

A Statutory Demand does not have to name a Court.

 

A Statutory Demand does not have to be served and back dating it(which they've done) and sending in the post is now regarded as OK.

 

Even though they have no proof of me receiving it they can still go ahead.

 

A company can bring a Statutory Demand without ever contacting you before the Demand.

 

You can apply to have it set aside because it is disputed and you have to contact the company for proof of their claim under the CCA.

 

They must prove their debt staisfactorily before the hearing or can they bring their proof to the hearing?

 

If they cannot proove the debt the Demand (and Bankruptcy proceedings)should be set aside (but this down to the Judge)?

 

When the Demand is set aside the Insolvency Petition is automatically staid?

 

Because they are bringing a Statutory Demand without proof you can claim hearing costs including a day's wages?

 

I just wanted to be clear of the procedures before I act.

 

Carman

Sorry about the delay in replying, I'm not an expert on this but here goes until somebody more knowledgeable arrives:-

 

1. No

2. Not sure whether it would be regarded as OK but its not considered enough grounds for the set aside, altho, if you've got the envelope I would keep this in your case notes, and I would point out to Judge discrepancy in dates.

3. The general opinion is its used as a frightener but its unwise to assume this in case they do follow up with bankruptcy petition.

4. Yes, but don't contact the company by telephone, CCA Request as mentioned previously with £1.fee and send special or recorded delivery and when you get a hearing, do Royal Mail track and trace and print off the proof.

5. They can send in their evidence before the hearing but also can bring it to the hearing. Often they don't turn up, but and this is vital make sure the court is sending a copy of the sworn affadavit to them and get a copy for yourself as the judge has to be sure that they have a chance to appear if they want to.

6. Yes, this is definitely down to the judge tho' and you will have to know your case law from the Consumer Credit Act which is in the stickys especially validity of defaults, assignments and what should be in the agreement.

7. Yes, but apparently, in theory they could try again within 6 months

8.. Yes, if the judge believes there is a genuine dispute they may agree to costs.

Sorry missed one out I think question being can they SD without ever contacting you first, surely they would (if a DCA) have to have a notice of assignment.

Anyway, have a good old read around, beanpole and Shawn are in the middle of all this at the mo.

[carman]

Fantastic answers I will certainly keep the forum abreast of my progress.

 

I was unaware that Bankruptcy can be applied for without an associated debt being heard by the County Court first. This is certainly an inappropriate use of Bankruptcy legislation and I'm not surprised that Judges are not pleased.

 

Because of the nature of my company I get demands for debts I know nothing about all the time. When your name and address are published all sorts of chancers think they can threaten you to admit or payup for a debt that you know nothing about because they know my reputation and financial history have to be A1. In the past I have replied by email or letter pointing out the danger of making malicious claims and this suffices but this is the first time a first contact has been to make me bankrupt! I say my company, so you can have some idea what my daily rate is and it is a significant element of the debt they are claiming - that's why I was interested that I could make a claim for expenses.

[carman]

Latest update:

 

I wrote to Connaught explaining that first contact being insolvency demand would not work and explained to them that they had withheld information that I would need to "help them". Explained that I would be getting a set aside unless they withdrew and my personal fees are very expensive.

 

22/7 Connaught collections wrote that they would withdraw the SD, close their files and return to 1st Credit.

I suppose I have to ask someone here is is that simple and can I not now get the original SD set aside and claim some money off them?

 

I also sent a CCA request to 1st credit. I have the standard reply from them with the relevant account numbers for the first time. In their letter they mention that under Section 136 of the Law of Property Act 1925 they only have to tell me they have an assignment deed, I can't have a copy of it.

Is that so, do I have no right to a copy of the Deed of Assignment?

Edited July 28, 2008 by carman

[palomino]

 

Is that so, do I have no right to a copy of the Deed of Assignment?

 

It has been stated elsewhere on here that you do not (it can contain information confidential to the parties involved).

What you should have received is Notice of Assignment.

[babybear39]

Don't assume that connaught have withdrawn. You must take this seriously and apply for the set aside at your local county court or they may get judgement by default. Check they deal with them as some don't.

 

The deed of assignment contains sensitive data such as what 1st crud paid for the account and the terms etc. But, as palomino has stated, you should have received a notice of assignment from the original creditor.

 

1st crud issue these like confetti via connaught in the hope that they scare people into paying.

 

Good luck and best wishes...

[carman]

Don't assume that connaught have withdrawn. You must take this seriously and apply for the set aside at your local county court or they may get judgement by default. Check they deal with them as some don't.

 

This is the bit I don't get about SDs. One can be issued without registering it at a Court so if they say in writing its been withdrawn itsn't that the end of the matter? How could they proceed with a bankruptcy hearing if they've withdrawn the SD?

 

I'll write and ask for confirmation.

[Little Red]

Hi

I don't have a lot of experience her and have also had an SD from capquest recently. However, last year I got an SD from Lowell Portfolio re MBNA credit card. It was the same as your's - no court name etc. From what I've read, they must tell you the court in question. I ignored mine as I thought it was very amaturish. That was 13 months ago and I haven't heard anything since. (ps They also mis spelt my name on the form)

[tinkerbell20]

Thanks for the reply.

 

So just to check a few things that are not clear on the other threads:

 

A Statutory Demand does not have to name a Court.

Yes it has to give the name of your local court. If it doesn't then it is flawed.

 

A Statutory Demand does not have to be served and back dating it(which they've done) and sending in the post is now regarded as OK.

It can be served by post but should be 1st class.

 

Even though they have no proof of me receiving it they can still go ahead.

They will have a statement from whoever posted it. The postal rule applies

 

A company can bring a Statutory Demand without ever contacting you before the Demand.

They shouldn't but that is for you to put to the court

 

You can apply to have it set aside because it is disputed and you have to contact the company for proof of their claim under the CCA.

Yes

 

They must prove their debt staisfactorily before the hearing or can they bring their proof to the hearing?

Yes

 

If they cannot proove the debt the Demand (and Bankruptcy proceedings)should be set aside (but this down to the Judge)?

Yes

 

When the Demand is set aside the Insolvency Petition is automatically staid?

They are not able to proceed with a bankruptcy petition.

 

Because they are bringing a Statutory Demand without proof you can claim hearing costs including a day's wages?

Yes and any other costs

 

I just wanted to be clear of the procedures before I act.

 

Carman

See answers in red above

[tinkerbell20]

Statutory demand expires after 4 months from service

[stupidboy]

See answers in red above

 

This may have been corrected elsewhere but a stat demand cannot be deeded to be served by post of any kind unless the recipient is daft enough to let someone know that they have received it.

 

The process server must satisfy the court (not that a stat demand is in the legal process anyway) that the stat demand has been received by the alleged debtor.

 

The process server must make enquiries with enough people to establish that the alleged debtor lives at the address in question. They must then attempt personal service.

 

Failing that, they send an appointment letter for a second visit. If the debtor makes the appointment they get personally served.

 

If they don't, but the evidence is that they live at the address, then the stat demand is physically posted through the letterbox at the time of the appointment.

 

If the debtor does not live there and is unlikely to receive mail addressed to them at that address, then the substituted service is unlikely to be accepted by any court as valid.

 

The only way that a posted stat demand (i.e by normal post) can be deemed to be valid is when the recipient admits to the claimant, or someone else, that they have received it. This is a given, and a very stupid thing to do.

 

This is why process servers exist - to stop the excuse that "...it never arrived in the post!"

 

stupidboy

[2Grumpy]

There should also be the name & phone number of a person to talk to about the SD on there. The SD can be set aside if they are not available to talk to you. It is worth ringing the number & asking to speak to them.

[Beck1968]

Here is a link to a Stat Demand

 

http://www.insolvency.gov.uk/pdfs/forms/form4-1.pdf

 

where is the bit about the court?????

[jandl]

Hi everyone.

 

1st Credit must have been very busy this week, I have also received a Statutory Demand from 1ST Credit (finance) Ltd for an Mbna debt assigned to 1st Credit.

 

 

Carman

The guy who served me with my demand told me that they were getting a thousand a week to serve. Wonder how many they are sending in the post. Wish I had recorded him telling me that. Wonder if OFT know really how many they are sending?

[the_shadow]

Here is a link to a Stat Demand

 

http://www.insolvency.gov.uk/pdfs/forms/form4-1.pdf

 

where is the bit about the court?????

 

Beck, thats the wrong form...

 

This is the one they issue. FORM here, note it states clearly that all parts must be completed therefore if no court is mentioned its not been completed.

 

S.

[the_shadow]

There should also be the name & phone number of a person to talk to about the SD on there. The SD can be set aside if they are not available to talk to you. It is worth ringing the number & asking to speak to them.

 

I agree, phone and log the date/time phonecall and who you speak to.. half these firms dont want you to contact them and wont put you through.

 

S.

[Beck1968]

can you explain what form 4.1 is for?????

[toddle2u]

Form 4.1 is for serving on Companies not individuals when sum is due immediately

[Beck1968]

thanks for the reply

 

can i serve that document myself or dose it go to court first

[toddle2u]

If it is to be served on a Company it can served by recorded delivery to the Companies registered office. However, if you intend to follow through with a winding-up petition it is best to have it served by a process server. The Court only get involved if the debtor serves an injunction to stop it being advertised. If they are sucessful (in the injunction)you will be liable for their costs

[babybear39]

Check your contents insurance as many policies have legal fee help.

 

Contact nationaldebtline and the CCCS for more info re: SDs.