Statutory demand for payment, Debt for liquidated sum payable immediately

[surfaceagentx20]

No worries ODC and thanks for letting me know that I'd be wasting my time answering any queries you might pose.

 

Any one else reading this might want to think twice about determining the level of expertise a man may have simply by reference to the number of days he has been a member of this forum.

 

X20

[ODC]

I think the majority of members can judge for themselves based on the advice given and the success rates of the various members.

[emmliss]

im confused now do i wait till the cca comes back wait the 12 days or go to court now to have it set aside ?????????????

[ODC]

You have read the advice of members of this forum and the sticky from tomterm. No-one can tell you what to do for the best. You must make your own mind up based on the various points of view.

[saintly_1]

im confused now do i wait till the cca comes back wait the 12 days or go to court now to have it set aside ?????????????

Personally I would get the set aside first .......... but as ODC states no one can tell you what to do. This is the most recent success http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/155671-statutory-demand-set-aside.html and they were awarded costs

[42man]

If it was me in your position I would fill out form 6.4 and take it to your local court.

 

State that

 

You have never had any 'Style' account in your life. And totally dispute the ownership of any debt to either 'Style' (or any other company who claims to own this debt)

 

State you have requested a copy of your Consumer Credit Agreement under the Consumer Credit Act 1974.

 

If the account actually existed then you would request a breakdown of all charges.

 

You have recieved only a letter from this company stating that you owe a sum of money without providing ANY evidence whatsoever.

 

You believe that fraud has been committed or they have sent the letter in error...

[pt2537]

I refer to GaryH's very useful thread

 

 

For those who don't know, a stat demand is a demand for payment of a debt under s268 of the Insolvany Act and is the first step to a bancruptcy petition. Failure to respond to one within 18 days means the creditor is entitled to commence bancruptcy proceedings after 21 days. For this reason, a stat demand should never just be ignored. However, they are used mainly as a scare tactic by creditors, which is clearly the case here and which in my view amounts to an obvious abuse of process.

 

There is some excellent advice on stat demands and how to deal with them here -

Debt Collection Agencies & Statutory Demands, a few strategies

 

As per sequenci's thread, one of the ways to respond to a statutory demand is to apply to have it set aside. You can only do this if you have grounds to - one of the grounds is if the debt is disputed, which, in this case, clearly it is.

 

The forms required to set aside a stat demand are;

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

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

 

This is my affidavit on form 6.5 -

Quote:

(1) Do not admit the debt because the existence/enforceability of the alleged debt is in dispute:

 

The respondent alleges that the applicant is indebted to it in the sum £4127.00, being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 (“CCA”). It is further alleged that the debt was assigned to the respondent from Citifinancial Europe Plc on 17/10/2007. The applicant will say that the statutory demand should be set-aside upon the following grounds;

 

a) The applicant does not admit that the debt exists. The respondent is put to strict proof that that the alleged agreement was entered into between CitiFinancial Europe Plc and the applicant; and at what place and on what date and upon what terms.

 

b) In the event that the burden of proof is discharged as set out in paragraph 1) above and entirely without prejudice to the same, the applicant does not admit that the debt is legally enforceable. The respondent has disclosed a copy of the agreement under which it alleges the debt to be owed in response to a request under CCA s.77(4). The alleged agreement is unexecuted and devoid of CCA prescribed terms and accordingly is unenforceable as a matter of law. The alleged agreement is exhibited hereto as ‘B’.

 

c) The respondent is put to strict proof that the alleged debt has been properly assigned.

 

d) The respondent is put to strict proof that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.88(1). Further or alternatively, the alleged debt contains sums levied by way of penalty charges which the applicant will say are contrary to common law. 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.

 

e) The applicant has potential grounds of action against the respondent for damages in respect of the applicant’s pain, suffering and loss of amenity caused by the respondents excessive harassment and that of Citifinancial Europe Plc. Accordingly, any proceedings initiated by the respondent may be subject to a counterclaim.

 

f) Attention is drawn to recent correspondence between the applicant and the respondent, exhibited hereto as ‘C’, in which the grounds upon which the alleged debt is disputed were set out clearly, coherently and in full. The respondent was invited to file a County Court claim in order that, in the interests of justice, the many matters at issue can be fully, fairly and properly determined before a judge at trial. The respondent has declined to do so.

 

g) The respondent has chosen to serve a statutory demand by ‘regular’ post in full knowledge of the fact that the debt is subject to an ongoing vigorous legal dispute. 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, the applicant respectfully requests that the statutory demand be struck out or set-aside. Further, the applicant invites 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.

 

I make this statement with the sworn belief that all facts stated are true.

 

I'm filing it at the court on Monday. Obviously nothing is certain but I'm not sure how they could possibly be successful. Hopefully there will be a hearing and I get the chance to hammer them for costs!! I'll post as soon as I know the outcome.

 

Feel free to use any of the letters/application, but only if they are approprite to your circumstances. Seek further advice if in any doubt!

 

 

[ScarletPimpernel]

 

I have no recollection of writing anything would would cause a careful reader to conclude that I believe people should not make DIY applications to the court.

 

I suspect that this is the statement to which ODC referred:

 

Neither do I consider it my place in assisting emmliss to encourage persons to present DIY applications in court in order to rid society of the plague of empty SD threats.

 

 

 

 

 

Any one else reading this might want to think twice about determining the level of expertise a man may have simply by reference to the number of days he has been a member of this forum.

 

On the other hand, Surfaceagent has provided no information about himself by which readers might make an informed decision as to why his expertise and/or advice may be more reliable or of better quality than that of others who are rather longer established members of CAG.

[MARTIN3030]

Staying on topic and forgetting the personal stuff

 

Pt2537s post (32) answers much of this.

[babybear39]

Subscribing...

[surfaceagentx20]

To answer your latest question emmliss:

 

The demand was served on 9 August. Your CCA s77 request was sent yesterday. Assuming I've done the counting right, the CCA s77 request will be deemed served on 15 August and 12 working days from 15 August takes you to 2 September 2008. In other words a state of non-compliance will not arise before 3 September.

 

Since the application to set aside the SD should be made in the period of 18 days beginning with the day of service, the last day for presenting an application to set aside is 27 August.

 

In short therefore you could not, on or before 27 August, say in an application to set aside the SD, that the creditor was in non-compliance with a s77 request. You would need to rely on some other ground. Besides a failure to comply in time with a s77 request is curable since the prohibition on enforcement is lifted the moment there is compliance. It really is not the razor edged sword some people make it out to be.

 

It would be dangerous in my opinion to say in your application that you have never held a Style account if in truth you don't know whether you have held one. Let us suppose the creditor produced good evidence that you had, like the agreement with your genuine signature on it. Then what? The court will either treat you as a liar or a person with the most attrocious and unreliable memory. Your credibility just went out the window.

 

It might be the case that the agreement, as and when and if it arrives, reveals a failure to comply with CCA regulations. But until you actually have a copy of the agreement in your hands, no one will be able to tell you whether it is CCA compliant or not.

 

That's why I'm sticking my neck out for you and cautioning against making an application to set aside the SD at this stage. If the pro-go issue think otherwise, no doubt they'll pick the bones out of my argument.

 

X20

[mr.ton]

Let us suppose the creditor produced good evidence that you had, like the agreement with your genuine signature on it. Then what? The court will either treat you as a liar or a person with the most attrocious and unreliable memory. Your credibility just went out the window.

 

Do you honestly think most people on here give a stuff about credibility?

If the worst comes to the worst...the debtor would just repay £1 per month once all essential outgoings have been taken into account by the court

[babybear39]

IMO, asking the court for the alleged debt to be proved is a good reason for set aside regardless of when the CCA requst was sent. Go with pt2537's outline and amend to suit your own circumstances.

 

Most people don't know their rights so would not be aware they could ask for this information or how to go about obtaining it.

 

No disrespect surfaceagent, but the very experienced and highly respected members who have given the best advice are helping the OP along the right course. You are playing devil's advocate at best, or trolling at worst

[emmliss]

mr ton

should i or shouldnt i go and set it aside? your last statement say ill end up paying 1 a month how? want they go for bankrupsy if i dont set aside im so worried i really dont no what i should do

[palomino]

Do you honestly think most people on here give a stuff about credibility?

If the worst comes to the worst...the debtor would just repay £1 per month once all essential outgoings have been taken into account by the court

 

What people on here think is irrelevant: what matters is what the judge thinks. And if you're seen to be playing around with the judge to point of being in contempt of court then you can ultimately be imprisoned.

 

As to the SD if the worst comes to the worst people could be made bankrupt. For a few people this might even be a good thing. For the majority of people though it could be varying degrees of bad.

 

I don't know if repayment orders are made at SD hearings. I thought the SD was simply granted or denied. Perhaps someone could enlighten me.

[babybear39]

Emmliss, if you have any assets, get the SD set aside ASAP...

[mr.ton]

What people on here think is irrelevant: what matters is what the judge thinks. And if you're seen to be playing around with the judge to point of being in contempt of court then you can ultimately be imprisoned.

 

Who said anything about playing round with anyone?

Being in court over a debt is not like being on trial for a crime as you seem to make out - the court official (if you can call them a judge?) is just there to decide if you owe a debt or not - if you do, then its into another room/round a table you go with some officials to work out how much to repay once all your essential outgoings are taken into account - that included bills,food,clothes,travel costs..all classed as essentials by the court system & if your left with nothing to repay after everything is taken into account then £1 per month is the minimum legal amount.

[mr.ton]

mr ton

should i or shouldnt i go and set it aside? your last statement say ill end up paying 1 a month how? want they go for bankrupsy if i dont set aside im so worried i really dont no what i should do

 

Yes..get it set aside.

I didnt say you deffo will end up paying that amount back - i said thats what can happen if you have next to nothing to repay once all essential outgoings are taken into account.

You need to realize as well that these SD's are just used as scare tactics most of the time as well.

Its not in anyone's best interest to make you bankrupt as they deffo wont get anything back then...or it will be into the next millenium by the time they do

[surfaceagentx20]

Ha ha mr.ton, point taken, though to be fair this is no joking matter. The worst might be worse than the worst (depending on your point of view) seeing how on this thread we're talking insolvency.

 

I'm no troll and if someone said that to me in my office they'd be shown the door (first offence pardoned). The hearing of the application to set aside is not a forum at which the creditor is first obliged to prove his debt. I've already explained that courts can dismiss them without even involving the creditor!

 

If people think I'm wrong will they please, for the sake of emmliss, go pick out the bones from my argument. Simply saying I'm wrong, a troll and other name calling without going on to explain in detail where the defects are in my argument is confusing emmliss and not especially helpful.

 

X20

[babybear39]

Surfaceagent, you must understand our POV here in that you're advising against certain essential help without actually telling us who you are or how you think you're qualified to know

[mr.ton]

Ha ha mr.ton, point taken, though to be fair this is no joking matter. The worst might be worse than the worst (depending on your point of view) seeing how on this thread we're talking insolvency

 

Errr who said anything about it being a joking matter?

Some of the stuff people are coming out with around here is nonsense quite frankly

I know how bankruptcy works/how SD's work/how DCA's work/how the county court system works....jeeeeessss ive had it all & more in my life over the past 10 years or so.

Im not referring to you specifically sufaceagentx...but i really do question the advice given on here sometimes by certain people & what their real motives are? 8-)

[emmliss]

me again right ill go to court monday cannot before as i cannot get their as its 40 min drive away fill in forms to have it set aside then what happends do i get a court date to appear then what what will i need to take with me?

[ODC]

Emliss you know from reading on here the experience that both Paul and Tomterm have. As for surfaceagentx20. No one knows what qualifications they may or indeed may not have. The worst thing that can happen is that your application for a Set Aside gets dismissed although in spite of what surfaceagentx20 says this is highly unlikely. Getting Sds Set Aside is a fairly straightforward matter although its not in the interests of DCAs for you to know that. If you do decide to go this route you will get plenty of help so do let your own inexperience put you off.

[emmliss]

hi

thanks yes i will go and have it set aside then what will happens im so scared.... if they dont set it aside what will happen? everyone refers to me as male and im not im female but dont hold that against me lol....

[babybear39]

Don't worry emmliss, you're in the right place. I'm female too

 

The worst that could possibly happen is that you MAY get a CCJ, but we'll help you defend that if and when *hugs*